State v. Pratt

• Decision Date: 08 May 1894
• Citation: 26 S.W. 556,121 Mo. 566
• Parties: The State v. Pratt, Appellant
• Court: Missouri Supreme Court

26 S.W. 556

121 Mo. 566

The State v. Pratt, Appellant

Supreme Court of Missouri, Second Division

May 8, 1894

Appeal from Jackson Criminal Court. -- Hon. John W. Wofford, Judge.

Affirmed.

Karnes Holmes & Krauthoff for appellant.

(1) It is well settled that what is said and done by a conspirator after the crime is committed and not in the presence of the other is not admissible in evidence against one not making the statements or admissions. State v. Minton, 116 Mo. 605; State v. Hildebrand, 105 Mo. 318; State v. Melrose, 98 Mo. 594. (2) In criminal cases the admission of improper testimony is not cured by an instruction excluding it. State v. Thomas, 99 Mo 235; State v. Daubert, 42 Mo. 242; State v Rothschild, 68 Mo. 52; State v. Mix, 15 Mo. 153; State v. Wolf, 15 Mo. 168; State v. Blan, 69 Mo. 317. (3) The seventh instruction given for the state improperly assumes the felonious intent. State v. Wheeler, 79 Mo. 366; State v. Hayes, 105 Mo. 76. (4) The second instruction asked by defendant to the effect that the finding of the indictment raised no presumption against the defendant, should have been given. State v. Brown, 115 Mo. 409. (5) The fifth instruction given for the state, which told the jury that in determining the weight and credibility they would give to the testimony of defendant they might take into consideration as affecting his credibility his interest in the result of the case, and that he was the accused party on trial, testifying in his own behalf, was erroneous. Hicks v. U.S. 150 U.S. 442. (6) It is competent for the defendant to testify as to the intent with which an act was done where such intent is material. State v. Williams, 95 Mo. 247. (7) The general rule as to affecting the credibility of a witness is that "evidence as to specific acts is held inadmissible." State v. Grant, 79 Mo. 113; State v. Taylor, 98 Mo. 240. The conviction of a witness of a felony may be shown as affecting his credibility. State v. Kelsoe, 76 Mo. 505; State v. Nelson, 98 Mo. 414. But this is not so of one who has been convicted "of a mere misdemeanor or the violation of a city ordinance." State v. Taylor, 98 Mo. 240.

R. F. Walker, Attorney General, Morton Jourdan, Assistant Attorney General, and Marcy K. Brown, Prosecuting Attorney, for the state.

(1) The indictment is sufficient, being a literal copy of the form approved by this court in State v. Fisher, 65 Mo. 437; 4 Park. Cr. Rep. 217; State v. Stewart, 90 Mo. 511. (2) The evidence of Cottrell, who was jointly indicted with appellant, was perfectly competent and properly admissible; the court had directed that Cottrell be discharged in order that he might be a witness for the state; this was done, not only before appellant had gone into his defense, but before the trial of defendant had begun. R. S. 1889, sec. 4217. (3) Instruction number 7 for the state, when read in connection with number 9, is not erroneous. (4) No error was committed in giving the stereotyped instruction as to the weight to be given to defendant's testimony. State v. Maguire, 113 Mo. 670. (5) The general rule is not, as counsel stated, that "evidence as to specific acts is inadmissible;" but, on the contrary, the rule in this state now is that evidence as to specific acts is admissible, and this court so held in the celebrated case of State v. Taylor, 24 S.W. 445. (6) The admission in evidence of the letters from Crab to Lesueur, and the conversation between these parties subsequent to the correspondence (in Kansas City), was not error. (7) But, conceding that the conspiracy did not exist, or had ended when the fraudulent deed was made and delivered, still there is no reversible error in the admission of the letters and the evidence as to the conversation between Lesueur and Crab.

OPINION

Sherwood, J.

The defendant, Charles C. Pratt, was jointly indicted with George W. Dawson, J. H. Cottrell, and Jacob H. Crab, being charged with the crime of forging the name of Wayne S. Bishop to a deed purporting to transfer a farm in Lafayette county, Missouri, worth some $ 15,000, to said Crab. It is unnecessary to set forth the testimony as it is already set forth in all of its salient features in Crab's case decided at the present delivery in an opinion delivered by Burgess, J. Severances were granted the respective defendants, the trial of defendant resulting in his conviction of forgery in the first degree, his punishment being assessed at imprisonment in the penitentiary for the term of ten years.

The evidence in this case, if believed by the jury, was amply sufficient for the purpose of conviction, though much of it was that of Cottrell, an accomplice; but the jury was properly instructed on the value to be placed on such testimony and how it should be received etc., and, besides, there was much other corroborative testimony and a variety of circumstances aliunde the accomplice's testimony, which tended strongly to support such testimony, as, for instance, the extreme poverty of the conspirators; the taking of an unsecured note from Crab for $ 2,050, and a deed for three thousand acres of wild and worthless Kentucky land which he did not pretend to own, and which was made out in blank and which he had obtained the night before from Tobie, being given in exchange for the true Bishop's valuable farm; the only additional consideration being a contract between Crab and Cottrell, alias Bishop, for $ 300, signed by Crab, and purporting to be signed by Bishop. This contract was drawn up by Pratt, but did not describe the Kentucky land, which was to be exchanged for Bishop's farm, nor was the note for $ 2,050 secured on that farm; but it was to "be due on or before thirty days from the completion of this Traid, Which is to give time that a lone can be made on said farm, so as to pay note."

Though this contract called for only $ 300 in cash to be paid, yet even the payment of this small sum in so large a trade was waived by the obliging Bishop, though he did not have money enough to pay the notary. This contract was left with Thompson by Crab. After the parties had thus exchanged deeds, they separated without appointing time and place for another meeting, and leaving Crab in possession of a deed to a valuable farm, without any security that the Kentucky land was worth a cent, and without anything to prevent Crab, a stranger, whose address was unknown, from selling or incumbering it for any amount he pleased. This transaction, so out of the way of ordinary business usages, was enough of itself to excite the apprehensions of Pratt, if indeed he was a real estate agent and innocent of intent to defraud.

Several errors have been assigned why the judgment should be reversed, and first as to the instructions. It is unnecessary to notice the most of them as they are in usual form, and require no further notice.

I. The seventh instruction given on the part of the state is the following: "Although you may believe that the act of signing the name of Wayne S. Bishop to the deed in evidence with the felonious intent of forging said name to said deed was in fact done by some person other than the defendant, C. C. Pratt; yet if you shall further believe that the defendant, C. C. Pratt, knowing of such felonious purpose on the part of such other person, was present at the time, knowingly or intentionally aiding, abetting, assisting, counseling or advising in the doing of such act, you must treat such act as done and performed by said C. C. Pratt himself."

It is insisted this instruction is erroneous, and it is said that it assumes "that the act of signing the name of Wayne S. Bishop to the deed in evidence, with the felonious intent of forging said deed was in fact done by some person other than the defendant." In our view the instruction makes no such assumption. Everything is made to depend on the belief of the jury.

As to the instruction failing to declare that the act should have been done with a felonious intent to defraud, this is immaterial, since such seeming lack is supplied by instruction 9 given for the state in which such an intent on the part of defendant to defraud is required. Reading these instructions together, as always should be done, leaves nothing wanting. The eighth instruction in ...