The State v. Hayes
| Decision Date | 09 December 1922 |
| Citation | 246 S.W. 948,296 Mo. 58 |
| Parties | THE STATE v. D. H. HAYES, alias JAMES MANUEL, alias HENRY HUBBLE, Appellant |
| Court | Missouri Supreme Court |
Appeal from Buchanan Circuit Court. -- Hon. W. H. Utz, Judge.
Affirmed.
Jesse W. Barrett, Attorney-General, and Henry Davis, Assistant Attorney-General, for respondent.
(1) The trial court properly overruled the plea of former jeopardy. The facts necessary to prove the charges contained in the two informations necessarily had to be different. Appellant was convicted of a different offense from that charged in the original information. 8 R.C.L. sec. 133, p. 148; State v Oakes, 202 Mo. 86, 100; State v. Williams, 152 Mo. 115; State v. Pace, 269 Mo. 687; 16 C. J. p 243, sec. 380; State v. Moore, 66 Mo. 372. (2) The count of the information upon which appellant was convicted charges the possession of a forged draft with knowledge that it was forged and with a fraudulent intent. It is in the language of the statute and is sufficient in form and substance. Sec. 3430, R.S. 1919; State v. Stark, 202 Mo. 215; State v. Turner, 148 Mo. 206; State v Allen, 116 Mo. 548. If the instrument described is payable to accused's order it is not necessary to allege that he indorsed it. State v. Vincent, 91 Mo. 662. (3) On a trial for the forgery of an instrument the State may prove as a part of the transaction the manner in which the money was obtained. State v. Witherspoon, 231 Mo. 718. (a) The court will not reverse a conviction on account of the exclusion of a question asked by the accused where the record does not show that the answer would have benefited accused. State v. Bobbitt, 242 Mo. 273, 291. (b) Whether or not a bank upon which a certain kind of draft has been forged has received another draft similar in form is immaterial and that sort of evidence should have been refused. It was not of such a nature as to warrant a reversal. (c) The fact that the bank draft and the evidence pertaining to it showed that it was indorsed by the appellant under the name of D. S. Hayes and that the information charged appellant under the name of D. H. Hayes is no ground for refusing to admit the draft in evidence. There were no allegations in the information as to indorsements of the draft. (4) Where the record on the plea in bar, where former jeopardy is alleged, shows that the offenses are distinct, the issue is for the court and not the jury. State v. Williams, 152 Mo. 121; State v. Pace, 269 Mo. 687; State v. Schyhart, 199 S.W. 210. (5) The evidence for the prosecution made out a strong case against appellant for having in his possession a forged instrument, and the court very properly overruled the instructions in the nature of a demurrer to the evidence offered at the close of the State's evidence and again at the conclusion of the whole evidence. (6) The instructions given at the request of the State were in approved form. Sec. 3430, R.S. 1919; State v. Allen, 116 Mo. 548; State v. Stark, 202 Mo. 210. (7) Exceptions for failure to more fully instruct must be taken and saved during the trial to warrant review. State v. Smith, 190 S.W. 288; State v. Cook, 207 S.W. 831; State v. McGruder, 219 S.W. 700.
RAILEY, C. White and Reeves, CC., concur.
On September 29, 1921, the Prosecuting Attorney of Buchanan County, Missouri, filed in the circuit court of said county, an information in two counts, charging appellant, in the first count, with forgery in the second degree, and, in the second count, with having in his possession, with intent to defraud, on January 5, 1921, a forged sight draft or cashier's check, purporting to be made and issued by the First National Bank of Muskogee, Oklahoma.
On the 17th of October, 1921, appellant filed a plea in bar, which was overruled by the trial court, and on said date the cause was tried, and appellant was acquitted on said first count, and convicted on the second count. His punishment was assessed at imprisonment in the Penitentiary for a term of three years. Judgment and sentence were rendered in accordance with the verdict of the jury, from which defendant appealed to this court.
The evidence of the State shows that appellant was introduced to a real estate agent at St. Joseph, Missouri, by the name of Jones, on the morning of January 5, 1921; that he then told Jones he was a retired farmer from Muskogee, Oklahoma, and wanted to purchase some real estate as soon as possible. Jones showed him the property of a Mrs. Hayes, and he agreed to buy it. Appellant then went with Jones to the office of an attorney by the name of Kelly. The contract of purchase was prepared by Kelly, and the appellant had Mrs. Hayes sign it. Defendant then went to the bank of Buchanan County, Missouri, and cashed a sight draft, purporting to have been made and issued by the First National Bank of Muskogee, Oklahoma. After being shown endorsements by Jones and others, identifying appellant, the Bank of Buchanan County aforesaid paid appellant the amount of the draft or $ 625. The teller of the Buchanan County Bank, after the draft had been taken by it, noticed something peculiar about it, and after discussing the same with the cashier, the latter wired the bank at Muskogee. He asked if such a draft had been issued to D. H. Hayes. The Muskogee bank answered in the negative, and said it was a forgery.
Mr. J. W. Hockman, the cashier of the First National Bank at Muskogee, Oklahoma, testified, in behalf of the State, that during the year 1921, M. J. Mills was not connected with the Muskogee bank, as assistant cashier, although he at one time occupied such a position. The draft in controversy was shown witness and, after testifying that he was familiar with the hand-writing of M. J. Mills, said that the signature to said draft was not in the handwriting of said Mills, and that said draft was not issued by his bank. This witness also said his bank had not used that form of draft for many years.
Appellant offered in evidence the records of the previous term of the Buchanan Circuit Court pertaining to the forgery charge then pending against him. The court records disclosed that, at a previous term of said court, a jury was sworn to try a case against appellant, wherein the information, in a single count, charged the forgery of an instrument, in all particulars, the same as the draft described in the first count of the information herein, except that the name alleged to have been forged in the first information was Miller instead of Mills.
The prosecuting attorney was sworn, and testified that he had never been in possession of but one forged instrument, which is the one described in the present information and used as a basis for this prosecution. He said both informations were intended to be founded on the same draft or check. After the jury was sworn at the former term of said court, the prosecuting attorney offered in evidence the above draft or check, and the same was objected to by counsel for appellant on the ground that there was a variance between the one introduced and that described in the first information. The latter charged that the name of M. J. Miller, assistant cashier, had been forged by appellant. The court sustained appellant's objection on account of said variance, and thereupon the prosecuting attorney, with the permission of the court, entered a nolle prosequi as to the first information, and discharged the jury that was called to try appellant under the same. Defendant herein offered in evidence all the record, proceedings and evidence in the former case in support of his plea in bar, which said plea was overruled. Thereupon appellant waived a formal arraignment, entered a plea of not guilty, and the case proceeded to a final determination as heretofor stated.
Such other matters as may be deemed of importance will be considered in the opinion.
Appellant has filed no brief in this cause, but in his motions for a new trial, and in arrest of judgment, has assigned certain errors, alleged to have been committed by the trial court, which will be considered in the opinion.
I. It is contended that error was committed by the trial court in overruling his plea in bar.
The former information, in a single...
To continue reading
Request your trial