The State v. Douglas

• Decision Date: 06 January 1926
• Docket Number: 26168
• Citation: 278 S.W. 1016,312 Mo. 373
• Parties: THE STATE v. REY O. DOUGLAS, Appellant
• Court: Missouri Supreme Court

278 S.W. 1016

312 Mo. 373

THE STATE v. REY O. DOUGLAS, Appellant

No. 26168

Supreme Court of Missouri

January 6, 1926

[Copyrighted Material Omitted]

Appeal from Jackson Circuit Court; Hon. Thad B. Landon Judge.

Affirmed.

I. B. Kimbrell, A. N. Gossett, W. W. McCanles and Horace Guffin for appellant.

(1) The failure of the court to sustain defendant's motion to quash the alleged indictment, it being timely, was clear and fatal error. (a) On this record defendant stands convicted on a paper purported to be a true bill of indictment, signed merely by the prosecuting attorney and a private person, D. M. Pinkerton. The statute of this State is clear and explicit that the indictment must be certified by a foreman of grand jury in his official capacity, and explicitly so. Sec. 3882, R. S. 1919; State v. Burgess, 24 Mo. 381; State v. Bruce, 77 Mo. 193. (b) A deed of trust in the nature of a mortgage does not transfer or convey any right or interest in real property, and hence is not the subject of first degree forgery. R. S. 1919, sec. 3421; Barnett v. Timberlake, 57 Mo. 499; Bailey v. Winn, 101 Mo. 649; Missouri Real Estate & Loan Company v. Gibson, 282 Mo. 75; Terminal Ice & Power Co. v. American Fire Insurance Co., 196 Mo.App. 241; Pullis v. Kalb, 62 Mo.App. 27; Dickerson v. Bridges, 147 Mo. 235; Standard Leather Co. v. Mutual Ins. Co., 131 Mo.App. 701; Kennett v. Plummer, 28 Mo. 145; Bushnell v. Insurance Co., 110 Mo.App. 223. (c) Facts constituting the offense sought to be charged must be set out clearly in the indictment. State v. Marion, 138 S.W. 491; State v. Barbee, 136 Mo. 440; State v. Stowe, 132 Mo. 199; State v. Hurt, 183 S.W. 333; State v. Crooker, 95 Mo. 389. (d) In an indictment for forgery where the name of the instrument in question does not necessarily make it a subject of forgery, the said instrument must be described by its tenor or its import. State v. Minton, 116 Mo. 605; State v. Rowlen, 114 Mo. 626; State v. Rucker, 93 Mo. 88; State v. Hurt, 183 S.W. 333; State v. Wade, 267 Mo. 249. (e) In an indictment for forgery where the mention of the name of the instrument does not advise the accused of "the nature and cause of the accusation" such name must be supplemented by setting out the instrument by its import or its tenor. Art. II, sec. 22, Mo. Constitution; State v. Fay, 65 Mo. 490; State v. Barbee, 136 Mo. 440; State v. Marion, 138 S.W. 491; State v. Stowe, 132 Mo. 199; State v. Hurt, 183 S.W. 333; State v. Wade, 267 Mo. 249; State v. Terry, 109 Mo. 601. (2) The writing alleged to be forged must possess some apparent legal efficiency to defraud. 26 C. J. 906, 20; 943, 91; State v. Jackson, 221 Mo. 478; State v. Sharpless, 212 Mo. 176; State v. Cordray, 200 Mo. 29. (3) In order to sustain a verdict of guilty in a forgery case there must be substantial evidence of an intent to defraud. State v. Cordray, 200 Mo. 29; Krup v. Corley, 95 Mo.App. 640; 26 C. J. 904; State v. Gullette, 120 Mo. 447; State v. Warren, 109 Mo. 430; State v. Stegner, 276 Mo. 427; State v. Jackson, 89 Mo. 561; State v. Witherspoon, 231 Mo. 706; State v. Tyree, 201 Mo. 574. (4) Intent to defraud will not be presumed from the mere making of a false instrument. 26 C. J. 961, 959; State v. Warren, 109 Mo. 430; State v. Rathborn, 166 Mo. 229; State v. Andrews, 248 S.W. 967. (5) If the main instruction which purports to cover the whole case and authorizes a verdict fails to include one or more of the defenses, the giving of such instruction constitutes prejudicial error, even though the defense may be adequately covered in a separate instruction. State v. Gabriel, 256 S.W. 765; State v. Helton, 234 Mo. 559; State v. Pate, 268 Mo. 431; State v. Davies, 217 S.W. 87; State v. Schmulbach, 243 Mo. 533; State v. Harris, 232 Mo. 317. (6) An instruction which singles out certain evidence and calls special attention to it, is bad as a comment on the evidence and is erroneous. State v. Mallock, 269 Mo. 235; State v. Rutherford, 152 Mo. 124; State v. Pate, 268 Mo. 431; State v. Lewis, 264 Mo. 420; State v. Rogers, 253 Mo. 399; State v. Shaffer, 253 Mo. 320; State v. Raftery, 252 Mo. 72; State v. Holmes, 239 Mo. 469; State v. Mitchell, 229 Mo. 683; State v. Shelton, 223 Mo. 112. (7) Where the evidence raises an issue and the defendant asks an instruction on the subject whether same be in proper form or not it is the duty of the court to cover the subject with a proper instruction. State v. Goode, 220 S.W. 854; State v. Moore, 160 Mo. 460; State v. Clark, 147 Mo. 38; State v. Reed, 154 Mo. 129; State v. Conway, 145 S.W. 441; State v. Barton, 214 Mo. 316; State v. Moore, 160 Mo. 443; State v. Brinkley, 146 Mo. 37; State v. Adler, 146 Mo. 18; State v. Davis, 141 Mo. 522. (8) It is error to give the so-called falsus in uno falsus in omnibus instruction in a case where it is coupled with the usual precautionary instruction on the relationship and interest of witnesses and where much of defendant's testimony was elicited from friends and relatives, including his wife, and wherein there was no conflict in testimony as to any material fact, but only a conflict of opinions. The point has not been raised in this State. The following authorities, however, will bear out the reasoning: State v. Weiss, 219 S.W. 368; State v. Hamilton, 263 S.W. 127; State v. Barnes, 204 S.W. 264; 16 C. J. 1017; State v. Martin, 124 Mo. 514; State v. Parmenter, 213 S.W. 439. (9) Insanity of a permanent or continuing character as distinguished from temporary mania, when shown to exist, is presumed to continue until the contrary is shown. 16 C. J. 538; State v. Lowe, 93 Mo. 547. (10) The defense of insanity is not repugnant to other defenses. State v. Porter, 213 Mo. 43. (11) A special verdict in order to be sufficient to support a judgment must find all the facts essential to the crime. State v. Holland, 162 Mo.App. 678; State v. DeWitt, 186 Mo. 61; State v. Cronin, 189 Mo. 663; State v. Modlin, 197 Mo. 376; State v. Grossman, 214 Mo. 233. (12) Wide latitude is permitted in the proof of insanity. State v. Porter, 213 Mo. 43. (13) Defendant's demurrer to the evidence, request for peremptory instruction, motion to quash indictment, and motion in arrest of judgment should have been sustained, for reason that the first count of the indictment being dismissed was out of the entire case, and the omission in the second count to show that a grand jury of Jackson County undertook to make the presentment is fatal. State v. Hurst, 123 Mo.App. 39.

Robert W. Otto, Attorney-General, and Harry L. Thomas, Special Assistant Attorney-General, for respondent.

(1) The second count of the indictment follows the statute and is sufficient in form and substance. State v Witherspoon, 231 Mo. 706; State v. Eaton, 166 Mo. 575; State v. Reed, 141 Mo. 546; State v. Turner, 148 Mo. 206; State v. Chissell, 245 Mo. 549; State v. Sharpless, 212 Mo. 176; R. S. 1919, secs. 3421, 3901. (a) The provisions of Section 3882, with reference to the form of the indorsement to be made by the foreman, are directory merely. R. S. 1919, sec. 3885; State v. Mertens, 14 Mo. 94; State v. Burgess, 24 Mo. 381; State v. Brooks, 94 Mo. 121; State v. Elliott, 98 Mo. 150; State v. Orrick, 106 Mo. 111; 14 R. C. L. 168; Coburn v. State, 151 Ala. 100. (b) The courts, while holding that the omission to add the words "a true bill" where the indictment is signed by the foreman cannot be attacked after verdict, recognize the right to attack the validity of such an indictment before trial by motion to quash. State v. Brooks, 94 Mo. 121; State v. Harris, 73 Mo. 287; State v. Murphy, 47 Mo. 274. The indorsement of the signature is not insufficient because the word "foreman" is omitted or if the signature is omitted altogether, for the records may be examined to show who was foreman. 31 C. J. 623, sec. 122b; 1 Bishop Crim. Proc. (3 Ed.) sec. 698; State v. Bowman, 103 Ind. 69; Terrell v. Comm., 194 Ky. 608; Whiting v. State, 48 Ohio St. 220; State v. Brown, 31 Vt. 602. The record shows the appointment of D. M. Pinkerton as foreman. (c) A deed of trust is included within the statutory designation of "deed or other instrument." R. S. 1919, sec. 3421; State v. Witherspoon, 231 Mo. 706; State v. Tompkins, 71 Mo. 613; Kelly's Criminal Law (3 Ed.) p. 684. The forged instrument was described by name and by purport and tenor. There is no suggestion in the record of any question of identity of instruments or of variance between the instrument charged and the instrument proved. All necessary averments to charge the offense are embodied therein. It leaves no difficulty in ascertaining the nature and cause of the accusation. R. S. 1919, sec. 3901; State v. Stevens, 281 Mo. 639; State v. Collins, 297 Mo. 257; State v. Carragin, 210 Mo. 351. (d) The formal parts contained in any count or counts of an indictment are included as such formal parts in every count or counts therein. The formal portions of counts quashed remain and become parts of the remaining counts. State v. Vincent, 91 Mo. 662; State v. Knock, 142 Mo. 515. (2) There is direct evidence that the forged signature was in fact the name of a real person. Intent to forge a real name is not a material issue. R. S. 1919, sec. 3421. (3) The offer was properly excluded, the witness having testified that at the time of his examination of the defendant he thought the defendant "a changed individual" due to overwork and worry. The evidence offered was based upon a hypothetical question to a lay witness and was in effect cross-examination of defendant's own witness. State v. Liolios, 285 Mo. 1; State v. Speyer, 194 Mo. 459; State v. Morris, 263 Mo. 339. (4) The offer as to resolutions by the board of directors was properly excluded, the items being too remote and relating to details merely. Further the defendant was...