State v. Rose

• Decision Date: 29 May 1917
• Parties: THE STATE v. O. J. ROSE, Appellant
• Court: Missouri Supreme Court

195 S.W. 1013

271 Mo. 17

THE STATE v. O. J. ROSE, Appellant

Supreme Court of Missouri, Second Division

May 29, 1917

Appeal from Buchanan Criminal Court. -- Hon. Thomas F. Ryan, Judge.

Affirmed.

Mytton & Parkinson for appellant.

(1) The court erred in refusing to quash the array of jurors, for the reason that they had served during the preceding week of the same term of court. Laws 1911, p. 307, sec. 13; Williamson v. Transit Co., 202 Mo. 345. (2) The court erred in permitting the prosecuting attorney to ask the hypothetical questions propounded to the witnesses, for the reason that they contained many facts not included in the evidence. State v. Palmer, 161 Mo. 152; State v Dunn, 179 Mo. 95; State v. Brown, 181 Mo. 192. (3) The hypothetical questions called upon the witness to express his opinion on matters peculiarly within the province of the jury and required the witness to reach his own conclusions and be the judge of certain facts pertaining to the handwriting on the check, the witness not having qualified as a handwriting expert, instead of leaving that fact to the jury. State v. Hyde, 234 Mo. 252; State v. Witherspoon, 231 Mo. 719; Sec. 6382, R. S 1909. (4) The court erred in permitting witnesses to answer hypothetical questions when the witnesses themselves admitted they were not experts along that line. (5) The court erred in refusing to permit the defense to recall appellant's mother for further testimony at the close of the State's rebuttal. (6) Defendant had been adjudged insane by a competent tribunal and the court was without power to put defendant on trial.

Frank W. McAllister, Attorney-General, and Henry B. Hunt, Assistant Attorney-General, for the State.

(1) The court's action in overruling the motion to quash the array of jurors, filed by appellant, was correct. The language of section 13, Laws 1911, page 307, means that such jurors shall actually serve for one whole week. Humphrey v. State, 86 S.W. 431; Provident Institution for Savings v. Burnham, 128 Mass. 461. (2) The hypothetical questions propounded to the witnesses fully recited all the material facts in evidence, and did not include facts not in evidence. State v. Duestrow, 137 Mo. 87; Rogers on Expert Testimony (2 Ed.), 71, 72. In putting hypothetical questions to the expert witnesses, counsel for the State had the right to assume the facts in accordance with his theory of them; it was not essential that he state the facts as they actually existed. State v. Bell, 212 Mo. 124; State v. Privitt, 175 Mo. 225; Rogers on Expert Testimony (2 Ed.), 65. (3) The check described in the information was properly submitted to the experts in the hypothetical questions; with regard to said check, they were not required to qualify as handwriting experts. State v Holloway, 156 Mo. 230; State v. Pagels, 92 Mo. 309; State v. Welsor, 117 Mo. 579; State v. Soper, 148 Mo. 239. (4) The other checks introduced by the State and included in the hypothetical questions given to the experts were relevant on the question of sanity or insanity of appellant; and the witnesses were not required to qualify as handwriting experts. State v. Hodges, 144 Mo. 53; State v. Bell, 212 Mo. 123; State v. Holloway, 156 Mo. 230. (5) Possession of forged instruments and the utterance of them soon after they were forged are cognate evidence that the appellant was the forger. State v. Bell, 212 Mo. 128. (6) Where a physician has had eighteen years experience as a practitioner of medicine, and during that time has been a student of mental and nervous diseases and in charge of a sanitarium for one and one-half years where mild forms of insanity and nervous troubles were treated, he is qualified as an expert on insanity, although disclaiming to be an expert on the subject of insanity generally. State v. Bell, 212 Mo. 125. (a) The question whether the witness possesses the necessary qualifications to render him competent to testify in the character of an expert, is a preliminary question addressed to the court. State v. Daly, 210 Mo. 676; Rogers on Expert Testimony (2 Ed.), 39. (b) And such decision resting largely in the discretion of the court, a case will not be reversed unless such discretion is abused. Helfenstein v. Medart, 136 Mo. 615; Commonwealth v. Sturtivant, 117 Mass. 137; Allen's Appeal, 99 Pa. St. 202; Rogers' Expert Testimony (2 Ed.), 56. (7) It is a matter within the discretion of the trial court whether a party shall be allowed to reopen his case and introduce further testimony. State v. Currier, 225 Mo. 651; State v. Pennington, 124 Mo. 391; State v. Eisenhour, 132 Mo. 148; State v. Smith, 80 Mo. 520; State v. Dunn, 179 Mo. 118. (8) The fact that appellant had been adjudged insane by the county court of Platte County after the information in this cause was filed did not take away the right and authority of the circuit court to put appellant on trial. Sec. 5207, R. S. 1909; State v. Crane, 202 Mo. 80; State v. Church, 199 Mo. 634. The question of appellant becoming insane after the filing of the information should have been raised by motion. State v. Church, 199 Mo. 626; State v. Crane, 202 Mo. 79.

OPINION

WALKER, P. J.

Appellant was charged with forgery in the second degree in the criminal court of Buchanan County and upon a trial was convicted and his punishment assessed at five years' imprisonment in the penitentiary. From this judgment he appeals.

The specific charge, by information, against the defendant was the forgery of a check for $ 2700.95 drawn on the Bank of Buchanan County, made payable to himself and signed by S. S. Allen. The latter at the time the check is alleged to have been made, August 15, 1914, was president of the Allen Grocery Company of St. Joseph. On this day he was absent from the city and the defendant came to the store on other business and in the temporary absence of the manager sat down at the latter's desk and was seen by the stenographer to be writing. A book of blank checks on the Bank of Buchanan County, to some of which S. S. Allen had signed his name, had been left lying on the desk where the defendant sat. Morrow, the manager of the grocery company, on his return from luncheon discovered that three checks having Allen's name thereon had been torn from the book. Defendant left the store before Morrow's return. The same day defendant presented to the Empire Trust Company of St. Joseph for deposit and credit the check described in the information, indorsed with his name, which was accepted by the Trust Company and he was credited with the amount of same. On the Wednesday following the 15th day of August, 1914, which was Saturday, inquiry was made of Morrow, the manager of the grocery company, by the Buchanan County Bank in regard to three checks drawn on the bank payable to the defendant, signed by S. S. Allen and indorsed by the defendant. In reply to this inquiry Morrow went to the bank and identified the checks as the ones which had been torn from the grocery company's check book. One of these checks was that for $ 2700.95 described in the information. It appears that the defendant, when this check was placed to his credit by the Trust Company, obtained a cashier's check for $ 2000 payable to himself. He tried at several banks to cash it and finally succeeded in so doing at a bank in Atchison, Kansas, where he purchased a diamond from the cashier and presented the check for payment, receiving the balance in excess of the price paid for the diamond in cash. Evidence was introduced in regard to two other checks signed by S. S. Allen and drawn on the Bank of Buchanan County. All of these checks were stated by the defendant to represent money made by him in speculating in sugar and that he had sold his holdings to the Allen Grocery Company. There had been no business dealings between the defendant and the Allen Grocery Company in which the former had been given checks by the latter. Thereafter the defendant fled from the State and was subsequently apprehended on the Pacific Coast, brought back and let to bail. At the trial the defense of insanity was interposed, resulting in the introduction pro and con of a great volume of testimony, much of which was wholly irrelevant. Same will be considered where it is necessary to a discussion of the errors complained of.

I. Error is assigned in the refusal of the trial court to quash the array of jurors. The ground alleged was that each member of the array had served on the petit jury of said court more than one week consecutively during the special adjourned term at which the defendant was tried. The admission of the parties at the time of the overruling of defendant's motion to quash the array contains a sufficient statement of the facts. It is as follows:

"It is admitted by the State and the defendant that each of the jurors were subpoenaed to be here on the 5th day of October and that they served two days of last week, then were excused until the 11th day of October of this week and this is the second day of this week."

The statute alleged to have been violated is applicable to the selection and service of jurors in counties of from 100,000 to 175,000, to which class Buchanan County belongs. The pertinent portion of this statute is as follows: "No petit juror shall be permitted to serve on such jury for more than one week consecutively during any term of court: Provided, that in no case shall this section cause the discharge of any juror during the actual pendency of the trial of any cause." [Sec. 13, Laws 1911, p. 307.]

The purpose of this statute is to free trials from the presence of professional jurors and to equalize jury service, so that no juror in the counties designated shall be required subject to the proviso contained in the section, to serve more than one week during any...