State v. Schneiders

• Citation: 168 S.W. 604,259 Mo. 319
• Decision Date: 23 June 1914
• Docket Number: No. 18090.,18090.
• Parties: STATE v. SCHNEIDERS.
• Court: United States State Supreme Court of Missouri

168 S.W. 604

259 Mo. 319

STATE v. SCHNEIDERS.

No. 18090.

Supreme Court of Missouri, Division No. 2.

June 23, 1914.

1. FORGERY (§ 29)—INDICTMENT—NAME OF PURPORTED SIGNER.

Under Const. art. 2, § 22, providing that in criminal prosecutions the accused shall have the right to demand the nature and cause of the accusation, an indictment for forging a note should have alleged the name of the person whose act the note purported to be, instead of merely alleging that it purported to be the act of another, where though it set out a copy of the note, it was claimed only that accused forged two of the five signatures to the note.

2. CRIMINAL LAW (§ 304)—EVIDENCE—JUDICIAL NOTICE.

In a prosecution for forgery and uttering a forged instrument, where there was evidence that the forged instrument was delivered to a Missouri corporation at its office on Olive street, judicial notice could not be taken that Olive street was in St. Louis or in the state of Missouri.

3. CRIMINAL LAW (§ 564)—SUFFICIENCY OF EVIDENCE—VENUE.

On a trial for forgery and uttering a forged instrument, evidence that a blank note was exhibited to the pretended signer in St. Louis, but that he did not then sign it, and that it was subsequently delivered, bearing his forged signature at the office of a Missouri corporation, not shown to be in St. Louis or in Missouri, did not sufficiently establish the venue of the offense.

4. CRIMINAL LAW (§ 724) — TRIAL — ARGUMENT OF PROSECUTING ATTORNEY.

Where, on a trial for forgery, it appeared that accused had never before been charged with a crime, and there was no evidence that he was a perjurer, suborner of perjury, or a crook, or that he bore a bad reputation, the remarks of the state's attorney, constituting a large part of his closing argument, that accused had sworn falsely; that "the whining man sitting there" was just the kind of a sneak that would besmirch his wife and have his own child perjure himself to save him; that he never saw a defendant that would besmirch his own wife and perjure himself and family that wasn't guilty; that the actions of the courts and the security of the general public and taxpaying community was too sacred to have one crook

committing forgery to get another crook out of jail; that they had something to do besides listening to the maudlin weeping of a crook; that he did not like to have a defendant sit and weep, with the expectation that the jury would perjure themselves to save a crook; that the exhibition brought into the case was an appeal to maudlin men, and not real men, because anything that would get behind a skirt to save himself was a coward at heart, and that it took a coward to do the sneaking work of forgery; that even a highwayman or burglar would not bring in a woman to save himself; and that he did not think the jury could say that the witnesses were perjurers and liars and "this crook" a decent man—required a reversal in the absence of any rebuke by the court or ruling on accused's objections.

5. CRIMINAL LAW (§ 1166½) — APPEAL — HARMLESS ERROR.

The denial of a fair and impartial trial guaranteed by the Constitution cannot be regarded as harmless because of accused's probable guilt.

Appeal from St. Louis Circuit Court; James E. Withrow, Judge.

Edgar Schneiders was convicted of forgery in the third degree, and he appeals. Reversed and remanded.

From a conviction in the circuit court of the city of St. Louis of the crime of forgery in the third degree, and a sentence therefor to imprisonment in the penitentiary for a term of two years, defendant has appealed.

The indictment contained two counts, the first of which charged him with forging a certain promissory note, and the second thereof with uttering said forged note.

The facts in the case as we gather them from the record, are that the Industrial Loan Company (hereafter for brevity called Loan Company), the payee in the note said to have been forged and uttered, is a corporation under the laws of Missouri, and engaged inferentially in the city of St. Louis in the making of loans in small sums, seemingly to persons of small means, which loans are agreed to be repaid in weekly installments. In order to procure a loan it is necessary for the applicant therefor, who in this case was the defendant, and who is styled "the maker" in the note he is required to make, and "the holder" in the contract in which he is required to enter into, to sign an application for such loan, which application must also be signed by two guarantors who obligate themselves to pay in the event of the borrower's default. The note made is also required to be signed by such guarantors, who are styled therein "comakers."

About the 8th of January, 1913, defendant being desirous to obtain a sum of money approximating $200, for the purposes, as he contends, of meeting pressing demands and of procuring medical treatment for a small son, or, as the state on the other hand contends, for the purpose of procuring the signing of a bail bond for the brother of defendant then in jail on the charge of embezzlement, made an application to the loan company for a loan in said sum of $200. This application was signed by F. E. Thorwegen and Joseph M. Press. The latter testifies that he signed this application himself, and that his name is "Joseph H. Press." It appears in the record as "Joseph M. Press," and he swears that he was in the habit of signing his name as "Joseph W. Press." The application for this loan was either written by or in the presence of said Press. Just here we would as well say that there is no contention by the state that any other names on this note except that of Joseph H. Press and J. W. Breen have been forged by defendant or any one else. The proof in the case shows that after the application for this loan was made out and signed by said Press he agreed to sign, and intended later to sign, the note. This note was afterward presented to him; but, since the time of its presentation to him for his signature was not within business hours, he declined to sign it at that time, but requested defendant to come again the next day. Afterward, he says, he was told by defendant that he had gotten the matter through without the necessity of having the witness Press sign it. Defendant contends, and this is his defense as to this signature, that Press did sign this note and as to him there is no forgery.

After the note was signed by the defendant, by the latter's wife, Helen Schneiders, and F. E. Thorwegen, all of whom, as stated, are bona fide signers and touching none of whom is there any contention of forgery, it was presented to the loan company, containing also the name thereon of "Joseph M. Press." The loan company took time to investigate the standing of the maker as well as the comakers, and after making such investigation and laying, as the cashier thereof testifies, the matter of this loan before the loan company's directors, defendant was requested to obtain further security, which he did, or pretended to do, by placing thereon the name of J. W. Breen. Subsequently the note was delivered to the loan company with the names of said Press and said Breen thereon. The defense as to the alleged forgery of the name of J. W. Breen is that his name was not on this note when it was delivered to the loan company. A number of witnesses, however, called by the state, and who are connected in divers capacities with the loan company, testified that the name of Breen was on the note when it was delivered to them by defendant. Upon delivery of the note it was discounted at the rate of 6 per cent. for a year, and defendant paid by a check the sum of $188, on which check he obtained the cash.

The testimony of J. W. Breen, whose name the state contends was forged on said note is in substance that he never signed his name thereon, and was never asked by defendant to do so, but that he did write a letter of recommendation to the loan company, which letter was offered by the state. The witness Breen further says that upon receiving notice from the loan company of defendant's default in making his payments, he immediately notified the loan company that he had not signed the note, and he also notified defendant and asked for an explanation, and that shortly afterward he met defendant in an office building in St. Louis, and defendant said to him, "I suppose you want to kill me," and the witness replied, "No, I am sorry for you." This witness also testified that he was familiar with the handwriting of defendant, and that the signature of witness' name upon the alleged forged note was not, in his opinion, the writing of the defendant.

The witnesses Arthur A. Blumeyer and Alice Miles, the first of whom is cashier and the other a stenographer for the loan company, both testified for the state that defendant brought the note into the office of the loan company on January 8, 1913, and that when the note was delivered it contained the names of both Press and Breen, signed thereto as "comakers."

Defendant, testifying for himself, corroborates the facts shown by the state down to the point where the note was given him by the loan company for the purpose of having it signed by himself and his comakers. Thereafter he said he saw Mr. Thorwegen and Mr. Press, and that all three went to defendant's home together and signed the note. To corroborate his defense that the witness Press did in fact sign the note, he called Ella Schneiders, the wife of his brother, and his son Arthur Schneiders, a boy aged some 11 years, both of whom testified that they saw Press making out at the home of defendant certain papers, which were called, while the work of preparing the same was progressing, "comaker's papers," and both of these witnesses testified that Press did sign this note. Upon cross-examination, however, it becomes somewhat doubtful whether much credence is to be placed upon this phase of their testimony, since the witness Press himself admits signing the...