State v. Stark

• Decision Date: 05 March 1907
• Citation: 202 Mo. 210,100 S.W. 642
• Parties: STATE v. STARK.
• Court: Missouri Supreme Court

100 S.W. 642

202 Mo. 210

STATE v. STARK.

Supreme Court of Missouri. Division No.

March 5, 1907.

1. FORGERY—INFORMATION—INSUFFICIENCY IN GENERAL.

Under Rev. St. 1899, § 2012 [Ann. St. 1906, p. 1342], having in possession a forged instrument of writing, the forgery of which is an offense (except evidences of debt issued by a bank), knowing the same to be forged, with intent to injure or defraud by uttering the same or causing it to be uttered, is an offense. Held, that an information charging that on or about a certain date, in a certain county, defendant knowingly and feloniously had in his custody and possession a forged instrument in writing purporting to be a deed of certain described real estate, naming the grantor and grantee, and setting forth the deed in full with certificate of acknowledgment, charged an offense under that section.

2. SAME—WEIGHT OF EVIDENCE—IGNORANCE OF DEFENDANT.

In a prosecution under Rev. St. 1899, § 2012 [Ann. St. 1906. p. 1342], for having in possession a forged deed, that defendant was 50 years of age, illiterate, and could only write his name does not show his innocence, as the charge is not forgery, but having a forged deed in possession.

3. SAME.

Evidence in a prosecution for having in possession a forged deed considered, and hela sufficient to sustain findings that the deed was forged, that defendant knew it was forged, and was in possession with intent to utter the same as a genuine deed in the county in which the land was situated.

4. CRIMINAL LAW — EVIDENCE — DEMONSTRATIVE EVIDENCE—COMPARISON OF WRITINGS.

In a prosecution for having in possession a forged deed, a note and chattel mortgage executed by defendant were admissible to prove his handwriting for the purpose of comparing it with the signature to the deed, under Rev. St. 1899, § 4679 [Ann. St. 1906, p. 2549], authorizing comparison of a disputed writing with any writing proved to be genuine for the purpose of proving the genuineness or otherwise of the writing in dispute.

5. SAME—APPEAL—NECESSITY OF OBJECTION— CROSS-EXAMINATION.

Where no objections are made in a criminal prosecution that the cross-examination is on matters not covered by the examination in chief, and no exceptions saved, the matter cannot be considered on appeal.

6. SAME—MOTION FOR NEW TRIAL—FAILURE TO ASSIGN ERROR.

Where a motion for a new trial in a criminal prosecution does not assign receiving the testimony of experts as error, the error will not be considered on appeal.

7. SAME—EVIDENCE—OTHER OFFENSES.

In a prosecution for having a forged deed in possession, evidence that defendant had in his possession about the same time a forged deed from the grantee of the first deed for the same land is admissible.

Appeal from Circuit Court, Miller County; Wm. H. Martin, Judge.

William S. Stark was convicted of having in his possession a forged deed, and appeals. Affirmed.

Hazell & Lay, for appellant. The Attorney General and N. T. Gentry, for the State.

GANTT, J.

This prosecution was commenced on the 23d of February, 1904, by information filed by the prosecuting attorney of Miller county, duly verified, wherein it is charged that the defendant on or about the 14th day of October, 1903, at the county of Miller, knowingly, unlawfully, and feloniously had in his custody and possession a certain false, counterfeited, and forged instrument of writing purporting to be a deed of conveyance of real estate situated in Miller county, Mo., and described as the E. ½ of the N. E. ¼ of the S. W. ¼ of the N. E. ¼, all in section 12, township 41, of range 15, from W. F. Brown to W. J. Wait, and purporting to be made by the said W. F. Brown and to be his free act and deed, and which said false, counterfeited, and forged written instrument, to wit, a deed from the said W. F. Brown to the said W. J. Wait for the land aforesaid was in said information fully set forth according to the tenor thereof, and with a certificate of acknowledgment attached thereto, which purported to have been taken before and by one J. N. Craig, a notary public, at his office in Independence, on the 27th day of August, 1903, and was filed for record on the 14th day of September, 1903, in the office of the recorder of deeds of Miller county. The information then proceeded to charge further that "said deed and instrument of writing so purporting to be the act and deed of the said W. F. Brown purported and pretended to convey the land aforesaid to the said W. J. Wait, he, the said W. F. Brown, being then and there the owner of the land aforesaid, and which said false and forged instrument and deed so as aforesaid made and forged, the said real estate purported to be transferred from the said W. F. Brown to the said W. J. Wait and the title to the said land to be thereby affected, transferred, and conveyed as in said deed specified and set out, and the said William S. Stark, did then and there on the day and year aforesaid at the county and state aforesaid, unlawfully, knowingly, and feloniously have the said falsely made, forged, and counterfeited instrument of writing and deed hereinbefore set out and described in his possession, then and there well knowing the same to be forged, counterfeited, and falsely made, with the intent then and there and thereby to unlawfully and feloniously injure and defraud by then and there unlawfully and feloniously uttering and passing the same as true, and against the peace and dignity of the state." The defendant was put upon his trial at the September term, 1904, and was convicted, but was granted a new trial. Afterwards, at the March term, 1905, the defendant was again put upon trial, and was again convicted, and his punishment assessed at two years in the penitentiary. From that judgment he has prosecuted this appeal.

The testimony tended to prove, without any contradiction, that the land described in the information was the property of W. F. Brown of Kansas City, and that he had never signed any deed to any person for said property. A short time before the date of the forged deed the defendant visited L. M. Musser, a lawyer and abstractor at Tuscumbia, and requested Musser to ascertain the name of the last record owner of this real estate. Mr. Musser examined his abstract books and told the defendant that W. F. Brown was the last owner. The defendant then desired to know where Brown lived. Musser was unable to tell him his residence, but told him he could ascertain by examining the deed in the recorder's office, and gave him the book and page in which said deed was recorded. Shortly after this the defendant stated to Mr. Marshall, the cashier of the bank in Tuscumbia, that he had bought this real estate from a man by the name of Wait, and he needed a small sum of money to finish paying for the same, and that he had instructed Wait to mail the deeds directly to the bank. Marshall already had a chattel mortgage on some of defendant's live stock, and defendant agreed to give the deed of trust on this real estate after he got his deeds, and include both loans in one. In a few days Marshall received an envelope containing the deed from W. F. Brown to W. J. Wait, and a deed from Wait to the defendant; both deeds purporting to convey the land in question. On the Sunday following the defendant, who lives several miles west of Tuscumbia, came to that town and learned from Marshall that he had received both deeds, and he thereupon requested Marshall to have them both recorded, which was done. The defendant then gave the bank a deed of trust on said real estate. In the...