State v. Shaw, 48839
| Decision Date | 11 June 1962 |
| Docket Number | No. 1,No. 48839,48839,1 |
| Citation | 357 S.W.2d 894 |
| Parties | STATE of Missouri, Respondent, v. George B. SHAW, Appellant |
| Court | Missouri Supreme Court |
Grace S. Day, St. Joseph, for appellant.
Thomas F. Eagleton, Atty. Gen., Paul N. Chitwood, Asst. Atty. Gen., Jefferson City, for respondent.
Defendant, George B. Shaw, has appealed from a sentence of imprisonment in the State Penitentiary for a term of two years imposed in conformity with the verdict of a jury finding him guilty of the offense of forgery and felonious alteration of a certain check issued to defendant by Julian Bulla for the principal sum of $60 and thereafter by defendant feloniously so altered as to purport to have been issued for the principal sum of $604. A brief statement of the material evidence adduced in behalf of the State will suffice for determination of the errors assigned in appellant's brief.
On Saturday, June 18, 1960, defendant called at Harrison Asbury's home in King City, Gentry County, Missouri. Representing himself as a 'termite extinguisher', he inquired of Mr. Asbury if he desired any work of that nature done. Advised in the negative by Mr. Asbury, defendant, followed by Mr. Asbury, went to the home of Julian Bulla, an approximately ninety-year-old citizen of King City, residing about one-half block from the home of Mr. Asbury. There defendant, in the presence and hearing of Mr. Asbury, talked with Mr. Bulla about termites and told Mr. Bulla that it would cost $60 to free his home of termites. Mr. Bulla assented to that proposal. Thereupon, a man, working for defendant, dug a small hole in the foundation of Mr. Bulla's home and entered the hole, staying there about an hour, presumably 'spraying' the premises. During that time, Mr. Bulla and Mr. Asbury sat on Mr. Bulla's porch. Defendant then advised Mr. Bulla that he was ready for his check and defendant and Mr. Bulla went into Mr. Bulla's house. While they were in the house, defendant told Mr. Bulla, 'It was sixty dollars.' Mr. Bulla said, 'You write out the check and I'll sign it.' Defendant wrote the check, Mr. Bulla looked at it, saw that it was for the amount of $60 and signed it. On Monday, June 20, 1960, defendant and another man came to Mr. Bulla's home. The man had a hammer and some short pieces of lumber. That man remained at the home about one-half hour. On the same day, defendant came to the First State Bank of King City and presented to Roy Lux, cashier of said bank, the check signed by Mr. Bulla. It bore the date of June 17, 1960, and was drawn on said bank, purportedly for the sum of $604. Mr. Lux knew Mr. Bulla's signature and knew defendant by sight and priorly had cashed checks payable to him. Defendant endorsed the check in Mr. Lux's presence and Mr. Lux cashed it. Before doing so, however, Mr. Lux inquired of defendant what he had done for Mr. Bulla and was informed by defendant that he 'had put a new foundation under Mr. Bulla's house.'
Defendant did not testify. Earl Robertson of Stanberry, Missouri, called as a witness in behalf of defendant, testified that he had met defendant one time, to wit: on June 20, 1960; that on that date, around eleven o'clock, defendant did some 'termite work' for him, finishing the job within about an hour, for which Robertson paid defendant $196; and the work was satisfactory.
The information, as originally drawn, consisted of two counts. The first count contained the charge of which defendant was tried and convicted. The second count charged defendant with felonious possession and utterance of the aforesaid check. At the conclusion of all of the evidence, the State, with consent of defendant, dismissed as to the second count. Other trial incidents will be referred to as necessary.
Counsel for defendant charges error in the refusal of the trial court to grant the defendant a continuance. On the morning of February 13, 1961, when the case was called for trial, counsel for defendant requested two or three days' time for the stated purpose of procuring the attendance of witnesses who, counsel for defendant said, would testify that defendant was not present when the alleged crime was committed. Counsel for defendant then stated that she had also understood that the prosecuting attorney, if asked by the court, would recommend, upon defendant's plea of guilty, a jail sentence and the placing of defendant on probation, if defendant would make restitution, and that she had thought the case might be disposed of without trial. Counsel for the State agreed that he had promised counsel for defendant, if asked by the court for a recommendation, to so recommend to the court. It was evident that the court was not interested in disposing of the case in that manner. Interrogated by the court, counsel for defendant also expressly admitted that she had in open court agreed on the 27th day of December, 1960, the case was to be set for trial on February 13, 1961, and that defendant would be ready for trial on that date. No written application for continuance was made and nothing further was said with reference to the procurement of witnesses who would testify as counsel for defendant had priorly stated to the court. Although the court unnecessarily permitted trial of the case to continue into the second day in order to afford defendant opportunity to procure the attendance of any witnesses that might be available, there is no showing or suggestion that any effort was ever made to subpoena or otherwise procure the attendance or testimony of any of the witnesses referred to by counsel for defendant as having knowledge that defendant was not present when the crime with which he was charged was committed. The trial court did not err in denying the application. ...
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State v. Wilkinson
...The court did not err in overruling the application for a change of judge. State v. Crow, Mo., 388 S.W.2d 817, 822(13); State v. Shaw, Mo., 357 S.W.2d 894, 896(2). We have examined those parts of the record subject to review under S.Ct. Rule 28.02, V.A.M.R., and find them legally sufficient......
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State v. Gee, 51621
...State v. Richardson, Mo.Sup., 347 S.W.2d 165, 169; Tucker v. Kaiser, Mo.Sup., 176 S.W.2d 622; State v. Keeble, supra; State v. Shaw, Mo.Sup., 357 S.W.2d 894, 896(3). However, before these rules of law may be applied, it must first be ascertained whether the plea of guilty, which makes such ......
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State v. Caldwell, 53105
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State v. French, 56202
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