State v. Rapp
| Decision Date | 13 February 1967 |
| Docket Number | No. 51937,No. 2,51937,2 |
| Citation | 412 S.W.2d 120 |
| Parties | STATE of Missouri, Respondent, v. Junior Boyd RAPP, Appellant |
| Court | Missouri Supreme Court |
Charles M. Cook, Carthage, for appellant.
Norman H. Anderson, Atty. Gen., Jefferson City, James J. Sauter, Special Asst. Atty. Gen., St. Louis, for respondent.
The defendant was convicted by a jury of uttering a forged check and, upon a finding of three prior felony convictions, he was sentenced by the court to serve a term of ten years, with an allowance of 251 days of jail time. The original notice of appeal was filed late, but this court granted leave under Rule 28.07 to file a delayed notice of appeal. The trial court permitted defendant to appeal as a poor person and furnished him a free transcript. Defendant was represented at the trial by appointed counsel who was thereafter permitted to withdraw; other counsel was appointed to prosecute this appeal and the case has been briefed here.
We are met at the outset by a motion of the State asking that we confine our consideration to the record proper because the motion for a new trial was filed four days late. We would be required to consider that question even in the absence of such a motion. The record shows that the verdict was returned on September 27, 1965, and the motion was filed on October 11; we have inquired independently of the Circuit Clerk and find that no order was made granting an extension of time under Rule 27.20. We shall therefore consider only the matters of record, and one additional point which, considered broadly, involves a constitutional issue. Counsel for defendant says that inasmuch as the prosecuting attorney and the court 'acquiesced' in the filing and consideration of the motion, its late filing was 'cured,' if indeed such action did not constitute a nunc pro tunc order. For the requirements on such an order see the case of State v. Hooper, Mo., 364 S.W.2d 542. It is obvious that there was no such order, nor could there have been one upon the present record; and neither the parties nor the court can waive the requirements of Rule 27.20.
Some points of defendant's brief are wholly insufficient in any event under our Rule 83.05, because they do not show 'wherein and why' the actions of the trial court are claimed to be erroneous. The points dealing with the admission of evidence, instructions, insufficiency of the evidence of prior convictions, alleged lack of proof of the corporate capacity of the First National Bank of Joplin, the overruling of challenges for cause to two veniremen, and the endorsement of the names of additional witnesses at the beginning of the trial, are all matters which require assignments of error in a motion for a new trial.
We consider first the information. It first alleges several prior felony convictions and imprisonment therefor; thereafter, in Count 1 it charges the making and forging on March 6, 1965, of a check for the payment of money purporting to be the act of Mrs. O. E. Kingsborough. We need not consider that count further, for defendant was acquitted on that charge, the court having instructed that he could be found guilty of forging or of passing the check, but not on both charges. The second count of the information was, in substance, that defendant '* * * feloniously did pass, utter and publish as true to Elmer Coy, d/b/a Elmer's Bar, 903 Main, Joplin, with the intent then and there and thereby to injure and defraud,' a certain check, 'forged and counterfeit,' purported to be made by Mrs. O. E. Kingsborough payable to defendant, and purporting to be drawn on the 'First National Bank of Joplin, Missouri, a national banking association duly organized and existing under the laws of the State of Missouri,' and that defendant then and there well knew that the said check was 'false, forged and counterfeit.' A copy of the face of the check was included in the information, with a notation of defendant's endorsement as it appeared on the back.
Counsel says here that a correct description of the 'banking institution' on which the check was drawn was an essential element of the information. He seems to argue that this is necessary to distinguish the check from some other form of instrument, and to establish it as a check on a known bank which the acceptor would presume to be good. He cites no authority. Respondent calls our attention to the forgery statute enacted in 1955, Section 561.011, RSMo 1959, V.A.M.S., which is, in its pertinent parts, as follows:
'(1) For any person with the intent to defraud to make or alter any writing of any kind having legal efficacy or commonly relied upon in business or commercial transactions, so that it purports to have been made by another, or at another time, or with different terms, or by authority of one who did not give such authority, or for any person with intent to defraud to totally erase, obliterate or destroy and such instrument;
'(3) For any person with intent to defraud to use as true, or to utter as true, or to possess with intent to utter as true or false, or to transfer with intent that it shall be uttered as true, any writing or other thing which said person knows has been made or altered in the manner described in either of subdivisions (1) or (2);'
This statute, in effect, describes the subject of a forgery as a 'writing of any kind having legal efficacy or commonly relied upon in business or commercial transactions.' And the crime thus defined as uttering, is the using or uttering as true of any such instrument which the person knows has been so made or altered. There is no reference in this statute to the corporate character of a drawee bank, as there was in prior statutes. Sections 561.080 and 561.090, RSMo 1949. Count 2 of this information included a verbatim copy of the face of the check which showed that it was drawn on 'First National Bank of Joplin, Mo.'; the check thus alleged was a writing 'commonly relied upon in business or commercial transactions.' Checks ordinarily do not carry a recitation of the mode of corporate organization of the bank on which they are drawn. The wording of this information is inept in that it describes the Bank as a 'national banking association' and also as one 'duly organized and existing under the laws of the State of Missouri,' but under the existing statute both references may and should be considered as surplusage. Particularly is this true after verdict. State v. Biven, Mo., 151 S.W.2d 1114, and cases there cited. No essential averment of the crime of uttering a forged check was omitted in this information, and the defendant certainly could not have been misled.
A written statement or confession of the defendant was received in evidence. Counsel contends, in a rather vague manner, that this was inadmissible in that defendant's 'constitutional rights' were not safeguarded and that he was without counsel at the time. The objection at the trial was equally as vague, on this phase. We rule here on the contention under Rule 27.20(c) the so-called 'plain error' rule because a constitutional contention may be raised on habeas corpus or in a motion to vacate a judgment and conviction under either state or federal procedure. Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837; Moore v. Dempsey, 261 U.S. 86, 43 S.Ct. 265, 67 L.Ed. 543. Thus, if it were true that the admission of...
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Toliver v. Wyrick
...had not been sufficiently definite to focus the state trial judge's attention to the defendant's federal claim. See, e. g., State v. Rapp, 412 S.W.2d 120 (Mo.1967), which properly applied principles stated in State v. Beasley, 404 S.W.2d 689 (Mo.1966). Beasley held that a Missouri appellate......
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Martin v. Wyrick
...which we should find that manifest injustice resulted. Therefore, we will consider this contention. Id. at 690 In State v. Rapp, 412 S.W.2d 120 (Sup.Ct. Mo.Div. 2, 1967) Judge Eager reached the same conclusion in regard to when Rule 27.20(c) should be applied for the same reasons. Judge Eag......
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State v. Aston, 51987
...is no evidence whatever tending to show that the oral statements or the written statements were involuntarily made. Compare State v. Rapp, Mo., 412 S.W.2d 120, decided February 13, 1967. When objection was made to the written confession, the Court offered to permit counsel to cross-examine ......
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Thompson v. State, 10739
...amounted to a waiver of his right of appeal. Such is the law now, State v. Cluck, 451 S.W.2d 103, 104(1) (Mo.1970); State v. Rapp, 412 S.W.2d 120, 122(2) (Mo.1967), and such was the law in 1966 when the petitioner was convicted. State v. Sykes, 400 S.W.2d 57, 59(1) (Mo.1966), and see State ......