The State v. Sharpless

• Decision Date: 19 May 1908
• Parties: THE STATE v. M. M. SHARPLESS, Appellant
• Court: Missouri Supreme Court

111 S.W. 69

212 Mo. 176

THE STATE v. M. M. SHARPLESS, Appellant

Supreme Court of Missouri, Second Division

May 19, 1908

Appeal from Jackson Criminal Court. -- Hon. Wm. H. Wallace, Judge.

Affirmed.

Allen Stallings and Robert A. Moore for appellant.

(1) Certain papers were taken from the person of the accused after he was arrested and the court permitted the State to introduce them in evidence against him. When the detective was identifying the papers he said he took them from the defendant after he arrested him; the defendant objected to their introduction for the reason that they were obtained by unlawful search and seizure and as the court was apprised of that fact at the time, the objection should have been sustained. State v. Davis, 108 Mo. 666; State ex rel. v. Hardware Co., 109 Mo. 118; State v Faulkner, 175 Mo. 546. (2) The following documents and records should not have been admitted in evidence: (a) The record of a deed of trust given by T. W. Mallory and wife to S. M. Locke, trustee, for the use of W. C. Moore, executor of the estate of T. W. Mallory, deceased. The information mentions a deed of trust given Thomas W. Mallory, Jr., and mentions W. C. Moore as executor of Thos. W. Mallory, Sr. deceased, the record offered shows an instrument signed by T W. Mallory and Sallie Mallory, a variance in the names of the grantor, and W. C. Moore is described as executor of the estate of T. W. Mallory, Sr., deceased, a variance in the party for whose use the instrument was given. The record offered in evidence covered the southeast quarter of section 22 in township 38 of range 27 in St. Clair county, while the information describes the land as the southeast quarter of the southeast quarter of section 15 and the northeast quarter of the northeast quarter of section 22 in township 38 of range 27, in St. Clair county. The land described in the record is 160 acres while that described in the information is only 80 acres and is situated one fourth of a mile at its nearest point, from that in the record. (b) The note that accompanied the deed of release was not admissible for any purpose; it was not shown to be a forgery, and was not brought to the knowledge of the defendant in any way that it could be admissible against him. (c) A letter written to J. P. Grove by Leslie Rodgers, of which a copy of a copy was admitted in evidence, had no right in evidence, it was not shown that the defendant had any knowledge of it in any shape or form. In addition to the error of admitting the copy of a copy, it was res inter alios acta, and should not have been admitted. State v. Minton, 116 Mo. 605; State v. Lentz, 184 Mo. 223; Wharton's Crim. Ev. (9 Ed.), sec. 202. (d) The deed of release which was mailed to the recorder of deeds at Osceola was not admissible in evidence: First. It did not possess any apparent legal efficacy. Where an instrument is so palpable and absolutely invalid that it can under no circumstances be proof in a legal proceeding, then falsely to make it is not forgery. Wharton's Criminal Law (9 Ed.), sec. 696; Com. v. Dallinger, 118 Mass. 439; Brown v. People, 86 Ill. 239; Henry v. State, 35 Ohio St. 128; John v. State, 23 Wis. 504; Rood v. State, 5 Neb. 174; Keeler v. State, 15 Tex.App. 112; Howell v. State, 37 Tex.App. 591; State v. Davis, 53 Iowa 252; People v. Head, 1 Idaho 531; Dunning v. Brown, 3 Col. 571; State v. Cordray, 200 Mo. 29. The instrument showed on its face that it did not convey any land nor any interest therein, because the grantor had no interest to convey. Second. The instrument was made by an executor for the purpose of releasing a deed of trust without receiving payment of the note which the deed of trust was given to secure and was such an instrument that an executor had no right to make. Sec. 4358, R. S. 1899. Third. Before the instrument was admissible in evidence it was incumbent on the State to show that there was of record a deed of trust upon which the deed of release would operate. A deed of release to release a deed of trust would be absolutely worthless to any one, unless there was a deed of trust which some one was interested in having released; it could not possibly defraud any one else. Com. v. Shissler, 9 Phila. 587; State v. Rowlen, 114 Mo. 626; State v. Humphreys, 29 Tenn. 442; People v. Wright, 9 Wend. 409; Dixon v. State, 81 Ala. 61; Williams v. State, 90 Ala. 649. Fourth. There was a fatal variance between the instrument offered in evidence and the information. The information did not set out the acknowledgment; while the authorities hold that it is not necessary to set out an acknowledgment in charging the forgery of a deed it is for the reason that it is presumed to be properly acknowledged. State v. Fisher, 65 Mo. 437. Where the indictment purports to set out the forged instrument according to its tenor, and in haec verba, any material variance between the instrument forged and the copy set out in the indictment is fatal. Haslip v. State, 10 Neb. 590; State v. Fleshman, 40 W.Va. 726; Com. v. Lawless, 101 Mass. 32; State v. Clark, 23 N.H. 429; Brown v. People, 66 Ill. 344; Hart v. State, 20 Ohio 49; State v. Blanchard, 74 Iowa 628; Shirley v. State, 1 Oregon 270; State v. Fay, 65 Mo. 490. The instrument was not an instrument that was the subject of forgery; it should not have been admitted in evidence. Abbott v. Rose, 62 Me. 194; Dixon v. State, 81 Ala. 61; Shannon v. State, 109 Ind. 407; Anderson v. State, 20 Tex.App. 595; Terry v. Com., 87 Va. 672; State v. Leonard, 171 Mo. 622; State v. Cordray, 200 Mo. 29.

Herbert S. Hadley, Attorney-General, and F. G. Ferris, Assistant Attorney-General, for the State.

(1) The information charges the offense in the language of the statute, and sets forth the instrument according to its tenor, and is sufficient. R. S. 1899, sec. 1994; State v. Fisher, 65 Mo. 437; State v. Tobie, 141 Mo. 547; State v. Rucker, 93 Mo. 88; State v. Rowlen, 114 Mo. 626. And the deed of release, upon its face, would have the effect to defraud those who might act upon it as genuine. 13 Am. and Eng. Ency. Law (2 Ed.), 1082. (2) The State need not elect on which count of an indictment it will proceed to trial, where the several counts relate to the same transaction. State v. Schmidt, 137 Mo. 266; State v. Houx, 109 Mo. 654; State v. Pratt, 98 Mo. 482. (3) The documents and letters taken from the person of defendant at the time of his arrest were properly admitted in evidence. The law is well settled that stolen goods, burglar's tools, forger's implements and documents, counterfeit bills, lottery tickets, and the like, may be used in evidence against defendant in a criminal prosecution, even though illegally obtained. Sections 11 and 22 of article 2 of our State Constitution do not forbid use of such evidence so obtained. The constitutional restriction is upon the powers of government, and is not intended as a restraint upon the unauthorized acts of individuals. Such letters and documents are not in the nature of admissions made under duress, nor are they evidence furnished by defendant himself under compulsion. They are not the admissions nor evidence of defendant in any sense. State v. Pomeroy, 130 Mo. 489. And said documents and letters were competent to show intent. State v. Stark, 202 Mo. 210. (4) The release deed, on which the information is founded, possesses apparent legal efficacy, and it was properly admitted in evidence. On its face it not only purports to convey the interest of the executor and to release the land from a deed of trust, but it also purports to express the assurance of W. C. Moore, executor of the estate of Thos. W. Mallory, Sr., deceased, that the heirs of said Thos. W. Mallory, Sr., have "no interest whatsoever" in the land it describes, and it might, for that reason, have tended to prejudice the rights of the said heirs, and for that, as well as for other reasons, be the subject of forgery. (a) It is not necessary that an instrument shall have actual legal efficacy in order to be the subject of forgery; it is sufficient that, if genuine, it might apparently have such efficacy, or serve as the foundation of a legal liability, or be such that the forgery of it might tend to the prejudice of another's right. State v. Eads, 68 Mo. 150; People v. Krummer, 4 Park C. R. 217; 24 L. R. A. 33 note; 22 Am. Dec. 306, note; Barnum v. State, 15 Ohio 717. (b) A deed, valid on its face, may be the subject of forgery, though the pretended grantor is dead, or has no title. Henderson v. State, 14 Tex. 503. (c) To be the subject of forgery it is not necessary that the person by whom an instrument purports to be made should have the legal capacity to make it. State v. Eads, 68 Mo. 150. (d) A deed, to be valid as between the parties, need not be acknowledged or recorded, and it is not necessary to charge that the acknowledgment was a forgery, nor to prove the acknowledgment, though proof that the acknowledgment was a forgery would be admissible as bearing on the main fact that the deed itself was forged. Wilson v. Kimmell, 109 Mo. 264; State v. Pyscher, 179 Mo. 140.

OPINION

FOX, P. J.

This cause is now pending in this court upon appeal by the defendant from a judgment of conviction in the criminal court of Jackson county, convicting him of the offense of forgery. On the 18th day of November, 1905, at the September term, 1905, of the criminal court of said county the prosecuting attorney of said county filed an information against the defendant, which was duly verified, charging him in two counts with forgery in the first degree. The second count of the information, the one upon which defendant was convicted, omitting formal parts, charged that:

"On the 6th day of November, 1905, one M. M. Sharpless, whose Christian name in full is to said prosecuting...