The State v. Pace
| Decision Date | 02 February 1917 |
| Citation | 192 S.W. 428,269 Mo. 681 |
| Parties | THE STATE v. G. E. PACE, Appellant |
| Court | Missouri Supreme Court |
Appeal from Dent Circuit Court. -- Hon. L. B. Woodside, Judge.
Reversed and remanded.
J. J Cope, Clyde C. Cope and G. C. Dalton for appellant.
(1) It is impossible to tell from this verdict on which count the jury found the defendant guilty and it is obvious from the punishment assessed against him that they only intended to punish him for one of the distinct and separate offenses charged in the information; this verdict so rendered is nothing more that a general verdict and is insufficient and cannot stand. The verdict must be certain, positive and free from all ambiguities. State v. Pierce, 136 Mo. 40; State v. Harmon, 106 Mo. 635; State v Bedell, 35 Mo.App. 551. (2) The State was permitted to prove that the note marked "Exhibit A" was a forgery by comparing the same with the note marked "Exhibit C," which it was never proven that Willis Pace had executed. This was error for which this case ought to be reversed.
John T Barker, Attorney-General, and Lewis H. Cook for the State.
(1) It is settled in this State that where there are several counts for different offenses of the same nature and for which the punishment is the same, there is no misjoinder, and a general verdict of guilty is good. State v. McDonald, 85 Mo. 539; State v. Core, 70 Mo. 491; State v. Blan, 69 Mo. 317; State v. Lesterman, 68 Mo. 408; State v. Sattley, 131 Mo. 464; State v. Schmidt, 137 Mo. 266; State v. Simpson, 126 Mo.App. 169; Kelly, Crim. Law & Prac., sec. 407. Where the several counts relate to the same transaction, but were framed differently to meet the proof, or each count is framed on a different section of the statute, a general verdict of guilty, and assessing the punishment at or within the maximum of that specified in any section on which any count is based, though no particular count or offense is specified, will be sustained. State v. Jackson, 90 Mo. 159; State v. Stewart, 90 Mo. 507. (2) By statute in Missouri, comparison of a disputed writing with any writing proved to the satisfaction of the judge to be genuine shall be permitted to be made by witnesses, and such writings and the evidence of witnesses respecting the same may be submitted to the court and jury as evidence of the genuineness or otherwise of the writing in dispute. R. S. 1909, sec. 6382; Kelly, Crim. L. & P., sec. 819; State v. Thompson, 141 Mo. 408.
The appellant was convicted of forgery at the April term, 1916, of the circuit court of Dent County. The information upon which he was tried is in two counts. The first charges him, under section 4651, Revised Statutes 1909, with the forgery of a certain promissory note purporting to be made by G. E. Pace, J. A. Pace and Willis Pace, which note was payable to the Holland Piano Manufacturing Company. The second count charges the appellant, under section 4654, with having the same forged instrument in his custody and possession with intent to utter it.
The defendant, while engaged in the piano business at Salem, Missouri, in December, 1913, ordered four pianos from the Holland Piano Manufacturing Company of Minneapolis, Minnesota, and gave in payment for them two notes signed by himself as principal and by his father, Willis Pace, and his brother, J. A. Pace, as sureties, each note being for the sum of $ 230. One of these notes was paid at maturity and the other was renewed. The renewed note is the one to which it is claimed the defendant forged the names of his father and brother.
It appears that the father and brother had signed the original notes and in fact had been accustomed to sign notes for the defendant at various times while he had been in business. Each of them states in his testimony that he had never refused to sign a note for the defendant when requested.
The father, Willis Pace, testified that he had no recollection of signing the note in question and thinks that he did not. He admitted on cross-examination, however, that he might have signed it. He admitted saying to an attorney who brought the note to him for collection that he might have signed it. It is conceded that the brother of the defendant, J. A. Pace, did not sign the note, but the defendant claimed that J. A. Pace gave him authority to sign the latter's name to the note, he being too busy at the time to come to the defendant's place of business for the purpose. J. A. Pace denied giving any such authority. The defendant asserts very stoutly in his testimonial that his father did sign the note. Testimony was offered by the State to show that the signature attached to the note, purporting to be that of Willis Pace, was not in fact his signature. The evidence further shows, in support of the second court of the information, that the note alleged to be forged was by defendant taken for the purpose of delivery to the Holland Piano Manufacturing Company in renewal of the former unpaid note, and was so delivered.
In the progress of the trial a witness, W. W. Young, a bank cashier, was shown a note marked "Exhibit C," purporting to be signed by Willis Pace, and stated that the signature attached to the note was the signature of Willis Pace. He was then shown the note, "Exhibit A," the note alleged to be forged in this case, and stated that the signature attached to it was not the signature of Willis Pace. The witness was not qualified in any manner as to his knowledge of the signature of the handwriting of Willis Pace. Both notes were then offered in evidence and exhibited to the jury over the objection of the defendant, who duly excepted. The witness was later recalled and was asked by one of the jury whether he saw Willis Pace sign the note marked "Exhibit C." He answered that he did not, but was familiar with his signature and had seen it a great many times. No other question was asked of him for the purpose of qualifying him as to his knowledge of such signature. No other evidence was offered as to the genuineness of the signature to "Exhibit C." The two notes were thereafter exhibited to other experts for the purpose of comparison. The admission of "Exhibit C' in evidence under the circumstances is assigned as error.
Upon the issues thus presented the jury returned the following verdict:
"We the jury, find the defendant guilty of forgery in the third degree, as charged in the information, and we assess his punishment at imprisonment in the State Penitentiary for the term of two years."
I. It is claimed by the defendant that the general verdict, because it did not designate on which count the defendant was found guilty, was a reversible error.
The general rule is, where an indictment is in two or more counts, each of which charges the same offense in a different form, or where the several counts relate to the same transaction and are framed on different sections of the statute, to meet the exigencies occurring at the trial, or where the several counts state different degrees of the same offense, a general verdict of guilty will be sustained. Such is the ruling in cases cited by the respondent where a defendant is charged with murder in the first and second degrees and manslaughter, in different counts, as in the case of State v. Core, 70 Mo. 491, and the case of State v. Blan, 69 Mo. 317; and where robbery is charged in different forms in several counts, as in the case of State v. McDonald, 85 Mo. 539. Also, in the case of State v. Sattley, 131 Mo. 464, 33 S.W. 41, cited by respondent, where the defendant was charged in one count with feloniously receiving deposits as cashier of a bank, while knowing the bank was in a failing condition, and in another count with having assented to the creation of an indebtedness of the said bank, while knowing it was in a failing condition, a general verdict was sustained.
On the other hand, the rule is well established that a general verdict where the several counts of the indictment charge several distinct crimes will not be upheld. Such is the case where several different larcenies were charged in the different counts of the indictment. [State v. Harmon, 106 Mo. 635, 18 S.W. 128.]
Another class of cases cited by respondent are those where the different counts of the indictment did not charge in different forms the same offense, nor yet charge offenses arising out of entirely different transactions, but where the several acts grew out of the same transaction and that charged in one count was in the nature of a corollary to the original offense charged in another count. In such cases the question as to whether distinct offenses were charged in the several counts usually arose on a motion to compel the State to elect on which count it would proceed to trial. This on the theory that a defendant could not be tried at the same time and in the same trial for two different and distinct crimes. [State v. Testerman, 68 Mo. 408; State v. Daubert, 42 Mo. 242.] The last is a leading case, and often cited in later decisions. It was held in that case, where the indictment contained two counts, one for...
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