The State v. Pyscher
| Decision Date | 23 December 1903 |
| Parties | THE STATE v. PYSCHER, Appellant |
| Court | Missouri Supreme Court |
Appeal from Saline Criminal Court. -- Hon. John A. Rich, Judge.
Affirmed.
W. C Todd, Com. P. Storts, W. G. Lynch and S. B. Burks for appellant.
(1) It was error to allow the prosecuting attorney to file three amended informations. It is an abuse of his power. All amended informations being filed during the term of court and on day set for trial, one while jury was being examined on voir dire caused a continuance. Defendant being unable to give bail, it worked great hardship on him. It was repugnant to his rights. R. S. 1899, sec. 2641; Const., art. 2, sec 22; Const. U.S. art. 6. (2) The court erred in permitting the prosecuting attorney, over the objection of defendant, to state to the jury the statements of defendant in his affidavit for a continuance in the case of G. M. Francisco v this defendant. The court sustained the objection to the reading of the same, but the poison had been injected. R. S. 1899, sec. 4657. (3) The court erred in not allowing the witnesses, McGuire, Samuel Pyscher, Christina Ellerbrecht, Emma Pyscher and others to testify to the jury the acts and statements of Anna Kroecker in regard to the deed and land in question. (a) Had it been that Anna Kroecker had no interest in the land, her actions being so closely connected with the transactions and all of her mother's business, her actions and statements would be part of the res gestae; such declarations are not hearsay, and are therefore admissible. State v. Gabriel, 88 Mo. 631. (b) It is admitted that statements of Katherine Kroecker in regard to the deed, are part of the res gestae, and competent testimony; Anna Kroecker being the only child and heir of Katherine Kroecker, she had a fee simple title to all the lands of which her mother died seized, and any statements made by her after her mother's death is on a par, is the same evidence as her mother's statements. Landree v. Warren, 53 Mo.App. 442; In re Estate of Lloyd, 44 Mo.App. 670; McPike v. McPike, 111 Mo. 232; Hall v. Bank, 145 Mo. 418; Becraft v. Lewis, 41 Mo.App. 552. Statements of the party in interest are not hearsay. Wharton, Crim. Ev., secs. 248, 249, 250. (c) Anna Kroecker's statements do not fall under the doctrine of hearsay evidence. It is a part of the res gestae. State v. Gabriel, supra. (d) Defendant did not offer to prove that Anna Kroecker heard her mother say she made the deed, or heard that was the deed she made defendant, but offered to prove a positive and personal knowledge, viz., "That Anna told him that was the deed which her mother had given Simon to the land." (4) Witness should have been allowed to state that Mrs. Kroecker "said she owed Simon money." It was germane to the issue. It was the consideration for the deed. It was the theory of the defense. The court, over the objection of defendant, let the State prove she did not owe defendant. The court was inconsistent. Both rulings could not be right. (5) The court erred in sustaining objection by the State to questions asked Dr. Sullivan. The questions tended to show the great interest he had, and took, in the prosecution, and is the theory given as the law in the eleventh instruction given by the State. State v. Painter, 67 Mo. 84; "Falsus in uno, falsus in omnibus." (6) The second instruction is wrong in not telling the jury they should find and believe from the evidence beyond a reasonable doubt, etc. (7) The court erred in giving the fourth instruction, because it singles out certain parts of the evidence, viz., that if they believe the deed was forged, and that the defendant had it in his possession, this "constitutes evidence that he committed the forgery." This is commenting on the evidence. It is invading the province of the jury. State v. Jackson, 99 Mo. 62; State v. Jackson, 95 Mo. 658. (8) The fifth instruction is manifestly wrong. It tells the jury that unless the defendant's claim to the deed is "satisfactorily explained to the jury," "in a manner consistent with the innocence of the defendant," his guilt "becomes conclusive." These positive statements throw a burden on the defendant that has never been sanctioned by this court. State v. Good, 132 Mo. 125. While it is not necessary to apply reasonable doubt seriatim to each instruction, yet, when an instruction like the fourth and fifth singles out certain facts, and states they are sufficient to convict, unless satisfactorily explained, the jury should be instructed to give the defendant the benefit of any reasonable doubt. The instruction in State v. Good, supra, is the law, and anything less is error.
Edward C. Crow, Attorney-General, and Sam B. Jeffries, Assistant Attorney-General, for the State.
(1) The fact that the prosecuting attorney filed three amended informations is alleged as error. No showing is made to the effect that defendant was thereby deprived of his rights under article 6 of the Constitution of the United States or under article 2, section 22 of the Constitution of Missouri. The provisions of section 2641, Revised Statutes 1899, were not violated. The conditions there required in order to warrant defendant's release did not exist. (2) Complaint is made that the trial court erred in not allowing witnesses McGuire, Samuel Pyscher, Christine Ellerbrecht, Emma Pyscher and others, to testify as to the acts and statements of Anna Kroecker in regard to the deed and land in question. The fact that Anna Kroecker, deceased, had or held no interest in the real estate in question is of no consequence, so far as the admissibility of her statements is concerned. Such declarations are not and can not be natural and inartificial concomitants of any act done by defendant, as was held essential in the case of State v. Gabriel, 88 Mo. 631. The declarations so much desired by defendant come as from the lips of a third person not on oath. They come clearly under the rule of excluding hearsay testimony and, therefore, were properly kept from the jury. The testimony of a witness must be confined to matters within his own knowledge and not such as he may have gathered from others or from persons who were closely related to or associated with the parties to the principal fact. 1 Greenleaf on Evidence, sec. 98. (3) Defendant assails the correctness of instruction number 2, given on part of State, for the reason that it did not require the jury to find and believe from the evidence beyond a reasonable doubt. This instruction did require the jury to "find and believe from the evidence," which, when taken in connection with all other instructions, was sufficient. State v. Baker, 136 Mo. 74. By instructions 14, given for the State, and number 2 for the defendant, the jury was properly instructed on the question of reasonable doubt. None other was necessary. State v. Fannon, 158 Mo. 156. (4) Instruction number 4, given on the part of the State, conforms in every essential to the one approved in State v. Good, 132 Mo. 125, the law of which applies to the case at bar. Upon proof of the fact that defendant had in his possession a forged and falsely made instrument, the same presumption arises as in the case of an accused being found in the recent possession of stolen property. State v. Patterson, 116 Mo. 504; State v. Baker, 64 Mo. 282; State v. Owens, 79 Mo. 619; State v. Kelley, 73 Mo. 609; State v. Tutt, 63 Mo. 598; State v. Haws, 98 Mo. 188.
The original information in this case was filed by the prosecuting attorney of Saline county on the 21st day of September, 1901. Various amended informations and motions to quash the same were filed until the 11th day of March, 1902, when the third amended information was filed by the prosecuting attorney. This last amended information contains three counts. It is unnecessary to notice any other count than that upon which the defendant was convicted, to-wit, the second count in the third amended information, which charges that the defendant unlawfully and feloniously caused to be forged and falsely made a certain deed purporting to be the act of one Katherine Kroecker, whereby the title to certain real estate therein specified was purported to be conveyed to the defendant. Upon this count, defendant was convicted and his punishment assessed at ten years in the penitentiary.
The body of the crime is laid in Saline county, the date of its commission being October 26, 1899.
Defendant filed a motion to quash the third amended information, and upon consideration it was overruled by the court. After conviction, motions for a new trial and in arrest of judgment were presented and were overruled, whereupon an appeal was taken to this court.
The defendant, Simon Pyscher, worked for and lived at the home of a woman by the name of Katherine Kroecker for several years prior to December, 1899. Mrs. Kroecker owned a farm adjoining and comprising a part of what is known as the old part of New Frankfort, Missouri, situated in Saline county. The farm consisted of something more than sixty-eight acres. Mrs Kroecker died in December, 1899, leaving a daughter, Anna Kroecker, as her only heir. Defendant administered upon the estate, Anna Kroecker being surety on his bond as administrator. Defendant filed an inventory of the real estate belonging to the deceased, Katherine Kroecker, and this inventory contained a list of the property claimed by defendant under the alleged forged deed. Defendant also had the real estate appraised for the purpose of obtaining an order of sale to pay the debts of the estate and no claim seems to have been made to the property by him until after the death of Anna Kroecker in February, 1901. After the death of Anna Kroecker, the probate court made an order requiring the...
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