The State v. Stark
| Decision Date | 19 March 1907 |
| Parties | THE STATE v. WILLIAM S. STARK, Appellant |
| Court | Missouri Supreme Court |
Appeal from Miller Circuit Court. -- Hon. Wm. H. Martin, Judge.
Affirmed.
Hazell & Lay for appellant.
(1) The verdict does not find defendant guilty as charged in the information. The verdict does not set forth the elements of any crime. It says, "We, the jury, find defendant guilty and assess his punishment," etc. Guilty of what? Must the information and testimony be read to determine? The verdict should be sufficiently definite to show of what offense defendant is found guilty. State v. Pierce, 136 Mo. 134; State v. Crowin, 189 Mo. 663; State v. Steptoe, 1 Mo.App. 19; State v. Pollock, 105 Mo.App. 273; State v. Rowe, 142 Mo. 439; State v. DeWitt, 186 Mo. 61; Graham and Waterman on New Trial p. 1378. The reasonable rule to be deduced from these authorities, considering the technicalities which should lodge about the liberty of the citizen, is that something should appear in the verdict designating the offense. The verdict should be in itself, if pleaded, a bar to further prosecution. State v. McGee, 181 Mo. 312; State v. Williams, 191 Mo. 205; State v. Miller, 190 Mo. 449. (2) The venue was not shown with that clearness required by the law. The evidence does not show that defendant uttered the deed from Brown to Wait, as charged in the information in Miller county. (3) Graham's testimony as to an alleged note of defendant and chattel mortgage which he, the said Graham, owned at the time of the trial, was clearly inadmissible. This note was not a note wherein Graham was payee, but was one endorsed to Graham by a third party one Austin. Graham testified that he was not present when the note was given; that he had no business dealings with defendant for twenty years. The defendant did not admit the execution of either the note or chattel mortgage and the admission of both was clearly prejudicial error. The best evidence would be that of Austin, the original payee. Like a great many other witnesses, whose testimony would have been the best evidence, no reason was assigned for Austin's absence. (4) The court erred in allowing defendant to be cross-examined on matters concerning which he was not asked on his examination in chief. Special counsel for the prosecution was allowed to ask him if he did not mail deeds at Tipton, and if he had not stated he had been in Independence. Defendant was not interrogated on either of these matters in his direct examination and his cross-examination on these matters constitutes reversible error. (5) In order to render signatures competent as a standard of comparison on an issue as to the genuineness of a signature, it is necessary that the genuineness of the signature offered as a standard be conceded by both parties. Doud v. Reid, 53 Mo.App. 553; McCombs v Foster, 62 Mo.App. 303; State v. Thompson, 132 Mo. 301. (6) The demurrer offered at the close of the State's case should have been sustained. Eliminating all that evidence which appellant believes to have been improperly admitted, there was no case made against the defendant. This court, in a very late case (State v. Gordon, 199 Mo. 561), has laid down the rule that, where there is no substantial evidence of the defendant's guilt and the evidence can be so reconciled as to show his innocence equally with his guilt, the case should be taken from the jury. (7) Defendant clearly established the fact that he could not have been present at Independence on the day the deed from Brown to Wait was executed and acknowledged. This was shown by an abundance of undisputed and unimpeached testimony, and the court failed to instruct upon this phase of the case. The presence of defendant at the necessary time and place must be shown as essential to the commission of a crime. State v. Woolard, 111 Mo. 248. On the question of alibi, generally, see: State v. Howell, 100 Mo. 628; State v. Harvey, 131 Mo. 339; State v. Tetlow, 136 Mo. 678.
Herbert S. Hadley, Attorney-General, and N. T. Gentry, Assistant Attorney-General, for the State.
(1) The information, which was duly verified by the affidavit of the prosecuting attorney, is sufficient in form and substance. R. S. 1899, sec. 2012; State v. Hathhorn, 166 Mo. 234; State v. Turner, 148 Mo. 206. (2) (a) The rule of law has long been established in Missouri that, upon an indictment for forgery, evidence is admissible tending to show that the defendant has been guilty of other forgeries than the one charged, committed about the same time. This, the courts hold, is proper in order to establish the fraudulent intent on the part of the defendant. Hence, no error was committed in permitting the State to prove that, about the time of the commission of the act charged, defendant forged and had in his possession another forged deed, which deed purported to convey title to the same land; and was a necessary link in the perpetration of the fraud attempted and consummated by the defendant on John and Frank Vernon. State v. Minton, 166 Mo. 613; State v. Myers, 82 Mo. 558; Underhill on Crim. Evid., sec. 423; 1 Wigmore on Evidence, sec. 312; 4 Elliott on Evidence, sec. 2990; 3 Greenl. on Evidence, sec. 111. (b) No error was committed by the trial court in admitting evidence tending to prove that the defendant forged the signature to the deed from Brown to Wait, and also forged the signature to the deed from Wait to defendant. Although said evidence tended to show that defendant was guilty of other and distinct offenses than the one charged, yet it was admissible in this case. State v. Kavanaugh, 133 Mo. 462. (3) Neither was error committed by the trial court in admitting in evidence the chattel mortgage and note for the purpose of comparison with the signatures to the alleged forged deeds, and then in permitting expert witnesses to testify that, in their opinion, defendant signed all of said documents. Defendant's signature to the note and chattel mortgage was "proved, to the satisfaction of the judge, to be genuine," as required by the statute. R. S. 1899, sec. 4679; State v. Thompson, 141 Mo. 416; Bank v. Hoffman, 74 Mo.App. 203. The evidence of the contradictory statements made by defendant to the various witnesses was not only admissible, but was of value in determining whether or not defendant knew that the deeds were forged. State v. Ferguson, 172 Mo. 678; 4 Elliott on Evidence, sec. 2723; State v. Benner, 64 Me. 289; Hinshaw v. State, 147 Ind. 362; Walker v. State, 49 Ala. 400; People v. Arnold, 43 Mich. 305; State v. Dickson, 78 Mo. 448 (4) There was not only substantial evidence of defendant's guilt, but the evidence was ample on that subject. While Mr. Sommerhauer would not swear positively that defendant was the man, yet he did state that it was his opinion that he was the man, and that he believed him to be the man, which is sufficient in law. State v. Howard, 118 Mo. 141; State v. Cushenberry, 157 Mo. 179; State v. Barrington, 95 S.W. 264. True, defendant denied the execution of the forged deeds and he also denied that he knew that they had been forged; but no one can read this record and be impressed with the innocence or good faith of defendant. Hodge v. Hubb, 94 Mo. 503; Baldwin v. Whitcomb, 71 Mo. 651. While defendant and several members of his family testified to an alibi, yet the jury had a right to convict him in spite of said evidence. State v. Smith, 190 Mo. 704; State v. Harvey, 147 Mo. 69.
This prosecution was commenced on the 23rd of February, 1904, by information filed by the prosecuting attorney of Miller county, duly verified, wherein it is charged that the defendant on or about the 14th day of October, 1903, at the county of Miller, knowingly, unlawfully and feloniously had in his custody and possession a certain false, counterfeited and forged instrument of writing purporting to be a deed of conveyance of real estate situated in Miller county Missouri, and described as the east half of the northeast quarter of the southwest quarter of the northeast quarter, all in section twelve, township forty-one of range fifteen, from W. F. Brown to W. J. Wait, and purporting to be made by the said W. F. Brown and to be his free act and deed and which said false, counterfeited and forged written instrument, to-wit, a deed from the said W. F. Brown to the said W. J. Wait for the land aforesaid, was in said information fully set forth according to the tenor thereof, and with a certificate of acknowledgment attached thereto, which purported to have been taken before and by one J. N. Craig, a notary public, at his office in Independence, on the 27th day of August, 1903, and was filed for record on the 14th day of September, 1903, in the office of the recorder of deeds of Miller county. The information then proceeded to charge further that "said deed and instrument of writing so purporting to be the act and deed of the said W. F. Brown purported and pretended to convey the land aforesaid to the said W. J. Wait, he the said W. F. Brown being then and there the owner of the land aforesaid, and by which said false and forged instrument and deed so as aforesaid made and forged, the said real estate purported to be transferred from the said W. F. Brown to the said W. J. Wait and the title to the said land to be thereby affected, transferred and conveyed as in said deed specified and set out, and the said William S. Stark did then and there on the day and year aforesaid at the county and State aforesaid, unlawfully, knowingly and feloniously have the said falsely made, forged and counterfeited instrument of writing and deed hereinbefore set out and described, in his possession, then and there well knowing the same to be...
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