State v. Sharpless

• Citation: 212 Mo. 176,111 S.W. 69
• Parties: STATE v. SHARPLESS.
• Decision Date: 17 March 1908
• Court: United States State Supreme Court of Missouri

111 S.W. 69

212 Mo. 176

STATE v. SHARPLESS.

Supreme Court of Missouri, Division No. 2.

March 17, 1908.

Rehearing Denied May 19, 1908.

1. FORGERY — INFORMATION — SUFFICIENCY.

An information, which alleges that accused forged a deed of release purporting to be the deed of a third person as executor, by which the interest of the third person as executor in lands described in the deed of release were quitclaimed to another, and which sets forth a literal copy of the deed of release of a deed of trust, sufficiently charges that by the forged instrument the right or interest in real property was purported to be transferred in violation of Rev. St. 1899, § 1994 (Ann. St. 1906, p. 1335), so as to be guilty of forgery.

2. INDICTMENT AND INFORMATION — REPUGNANCY.

An information, which alleges that accused forged a deed of release of a deed of trust, and which sets forth the deed of release to designate the instrument alleged to have been forged, is not open to the objection that the allegations in the information are repugnant to each other, where the insistence is predicated on the recitations contained in the deed of release set forth simply to show the alleged forged instrument.

3. FORGERY — ELEMENTS OF OFFENSE — INSTRUMENTS SUBJECT OF FORGERY.

While one of the essential elements of forgery is the intent to defraud, it is only essential that the instrument, to be the subject of forgery, should be of some apparent legal efficacy for injury to another.

4. SAME.

A deed of release, which on its face shows that it purports to release the rights of certain parties in certain described lands, and purports to express the assurance of the person executing such deed that certain persons have no interest in the land therein described, is the subject of forgery, since the recitations therein have some apparent legal efficacy for injury to another.

5. INDICTMENT AND INFORMATION — AMENDMENTS — STATUTES.

Under Rev. St. 1899, § 2481 (Ann. St. 1906, p. 1490), providing that informations may be amended in matter of form by leave of court at its discretion, when the same can be done without prejudice to the rights of accused, the allowance of an amendment to an information, charging that accused forged a deed of release, purporting to be the deed of a third person as executor of decedent, by which all the right and interest of the third person as executor "as

aforesaid" were transferred, etc., by adding after the quoted words, the words "in and to the lands hereinafter described in the deed of release hereinafter set forth," was not prejudicial to accused.

6. CRIMINAL LAW — EVIDENCE — INSTRUMENTS WRONGFULLY OBTAINED.

Papers taken from the person of accused after his arrest by the officer making the arrest are properly received in evidence, notwithstanding Const. U. S. Amends. 4, 5, and Const. Bill of Rights, §§ 11, 23 (Ann. St. 1906, pp. 133, 158), providing that no person shall be compelled to testify against himself in a criminal case, etc.

7. SAME — HARMLESS ERROR — EVIDENCE.

The error, if any, in admitting the testimony of the prosecuting attorney that accused, after his arrest, on being asked if he had any statement to make, stated that he would not make any statement, and that he realized that the statements had better be made at the trial, was harmless.

8. INDICTMENT AND INFORMATION — ISSUES, PROOF AND VARIANCE.

An information charged accused with the forgery of a deed of release, and set out a copy of the deed, without making any allegations concerning the acknowledgment thereof. The state offered the deed in evidence, without offering to read the acknowledgment thereof, and accused called the attention of the court to the acknowledgment, and objected to the admission of the deed on the ground of variance. Held, that the deed was properly received in evidence.

9. SAME — JOINDER OF COUNTS — ELECTION.

It is not error to refuse an election where the several counts of an information refer to the same transaction.

10. CRIMINAL LAW — HARMLESS ERROR — ERRORS NOT AFFECTING RESULT.

Where accused was convicted on the second count of the information, he could not complain of the rulings directed to the first count.

11. SAME — INSTRUCTIONS — CIRCUMSTANTIAL EVIDENCE.

Instructions that, before accused can be convicted on circumstantial evidence, the facts must form a complete chain and point to his guilt, and must be irreconcilable with any reasonable theory of his innocence, and the facts must be such as to exclude, to a moral certainty, every hypothesis but that of guilt, etc., sufficiently charges the law, where a conviction is sought on circumstantial evidence.

12. SAME — HARMLESS ERROR — INSTRUCTIONS NOT AFFECTING RESULT.

Where accused was convicted on the second count of the information, instructions applicable to the first count are not reviewable.

13. SAME — CAUTIONARY INSTRUCTIONS.

Where the court charged that the jury were the sole judges of the credibility of the witnesses and of the weight of their testimony, and that, in determining the credit due to a witness, they should take into consideration his conduct and appearance on the stand, his interest, the motives actuating him, his relation to or feeling for or against accused or the alleged injured party, the opportunity the witness had to be informed as to the matters respecting which he testified, etc., the failure to caution the jury against the evidence of witnesses as to admissions and statements of accused was not prejudicial.

14. SAME — VERDICT — CONCLUSIVENESS.

It is the exclusive province of the jury to determine the credibility of the witnesses and the weight of their testimony, and where there is substantial evidence supporting the verdict, it will not be disturbed on appeal.

Appeal from Criminal Court, Jackson County; Wm. H. Wallace, Judge.

M. M. Sharpless was convicted of forgery, and he appeals. Affirmed.

This cause is now pending in this court upon appeal by the defendant from a judgment of conviction in the criminal court of Jackson county, convicting him of the offense of forgery. On the 18th day of November, 1905, at the September term, 1905, of the criminal court of said county, the prosecuting attorney of said county filed an information against the defendant, which was duly verified, charging him in two counts with forgery in the first degree. The second count of the information, the one upon which defendant was convicted, omitting formal parts, charged that "on the 6th day of November, 1905, one M. M. Sharpless, whose Christian name in full is to said prosecuting attorney unknown, did then and there unlawfully and feloniously cause and procure to be falsely made, forged, and counterfeited a certain deed of release, purporting to be the act and deed of one W. C. Moore, as executor of the estate of one Thos. W. Mallory, Sr., deceased, by which all the right and interest of the said W. C. Moore, as executor of Thos. W. Mallory, Sr., as aforesaid (in and to the lands hereinafter described in the deed of release hereinafter set forth), purports to be transferred, conveyed, released, and quitclaimed to one James P. Grove, which said false, forged, and counterfeit deed of release is as follows; that is to say: `Deed of Release. Whereas, Thos. W. Mallory, Jr., by deed of trust, dated July 27, 1900, did convey to S. M. Locke as trustee for the use of me, W. C. Moore, as executor of the estate of Thos. W. Mallory, Sr., deceased, all his undivided interest in the property hereinafter described, together with other lands described in said deed of trust to secure the payment of the debt described therein, consisting of a note payable to Thos. W. Mallory, Sr., for four hundred dollars, with interest at the rate of eight per cent. per annum, dated November 25, 1895; and whereas, James P. Grove has purchased the hereinafter described land from Thos. W. Mallory, Sr., by good and sufficient warranty deed prior to said deed of trust, and at his death, leaving no interest whatsoever to any of his heirs, including Thos. W. Mallory, Jr., in the following tract or parcel of land: Now, therefore, know all men by these presents, that I, W. C. Moore, executor of the estate of Thos. W. Mallory, Sr., deceased, in consideration of the premises, and one dollar in hand paid, the receipt of which is hereby acknowledged, do release and forever quitclaim unto the said James P. Grove, and unto his heirs and assigns all of the following described tract or parcel of land described in the above-described deed of trust, located in the county of St. Clair and state of Missouri, described as follows, to wit: The southeast quarter of the southeast quarter of section fifteen (15) and the northeast quarter of the northeast quarter of section twenty-two (22), in township thirty-eight (38) of range twenty-seven (27), containing in all eighty acres, but this deed shall in no way release any other lands in said deed of trust, but release said deed of trust to the above-described land only. Witness my hand and seal this 6th day of November, 1906. W. C. Moore, Executor. [Seal.]' — with intent then and there unlawfully and feloniously to defraud, against the peace and dignity of the state." On November 20, 1905, defendant was arraigned, and entered his plea of not guilty. The case was continued from term to term, until the 29th day of May, 1907, at the April term of said court, the court having overruled defendant's motion to discharge defendant because of delay in bringing him to trial, defendant was put upon his trial.

The evidence on the part of the state tended to prove that during the greater part of the year 1904, defendant resided at Mexico, Mo., where he was engaged in the law business. While there he resided across the street from Fanny Bell Moore, widow of W. C. Moore, deceased, with whom he became acquainted, and from whom he learned that she was interested, as heir of her father, Thomas W. Mallory, Sr., in certain lands in St. Clair county, Mo., being the...