The State v. Stegner

• Decision Date: 23 December 1918
• Citation: 207 S.W. 826,276 Mo. 427
• Parties: THE STATE v. THEODORE STEGNER, Appellant
• Court: Missouri Supreme Court

207 S.W. 826

276 Mo. 427

THE STATE v. THEODORE STEGNER, Appellant

Supreme Court of Missouri, Second Division

December 23, 1918

Appeal from Jackson Criminal Court. -- Hon. Edward E. Porterfield Judge.

Reversed and remanded.

M. A Fyke and E. F. Halstead for appellant.

(1) The information is fatally defective, for the reason that there is no allegation that the American National Bank was a bank incorporated under the laws of any State, territory government or country, or that it was such incorporated bank at the time of the alleged offense. State v. Washington, 259 Mo. 335. (2) The information is defective in that there is no allegation that the name of C. W. Howell is the name either of a person or of a fictitious person. State v. Minton, 116 Mo. 605; Sec. 4643, R. S. 1909. (3) The court erred in permitting witness Vining, testifying as an expert, to bolster up his own testimony, by giving argumentative testimony, and giving the reasons for his conclusions by comparison of certain strokes and letters in the disputed writing, over the objections of defendant. State v. Hyde, 234 Mo. 256. (4) The court erred in permitting witness Pickerell to testify when his name was not endorsed upon the information over the objections of defendant. (5) The court erred in permitting witness Pickerell to testify as a matter of his own conclusion and hearsay, that the American National Bank was a corporation organized under the laws of the United States over the objections of defendant. R. S. 1909, sec. 5238; 2 Words and Phrases (2nd Series), p. 724; Fitzgerald v. State, 10 Ga.App. 70. (6) The court erred in permitting witness Pickerell to testify to matters of opinion and conclusion in stating that the American National Bank refused payment on the draft because C. W. Howell had no account in said bank, over the objections of defendant. (7) The court erred in not permitting defendant to have witness Bartlett under cross-examination, recite to the jury the derogatory poem, which witness testified he had written concerning defendant. State v. Horton, 247 Mo. 664; State v. Moreaux, 254 Mo. 398. (8) The court erred in refusing to instruct the jury upon the law of circumstantial evidence as pertaining to this case, as to the sufficiency necessary to sustain a conviction, and as to the weight to be given to such evidence, as requested by defendant. State v. Fitzgerald, 201 S.W. 86. (9) The court erred in permitting the prosecuting attorney to state to the jury in his argument in referring to defendant, "Why hasn't he this man Howell here? He was tried by a jury in this court before. A jury passed on his case, and through a technicality he is back here again." Sec. 5283, R. S. 1909; State v. Leabo, 89 Mo. 248; State v. Schneiders, 259 Mo. 332; State v. Drummins, 240 S.W. 271. (10) The court erred in permitting the prosecuting attorney in his argument to state to the jury: "Do you think his honor on the bench is a crook? If there was no case here he would grab me and Bartlett and throw me out of the window, and don't you forget it. I said his honor wouldn't let you men pass on it. This is the the law. . . . His Honor gives the law and the witnesses give the testimony, and that is the law given by His Honor. . . . He passes on whether the law has been violated and you twelve men on the jury are the only ones who can stamp it out. His Honor couldn't do it, but you twelve men in the box can by making examples of these men." State v. Kring, 64 Mo. 595; State v. Webb, 254 Mo. 414; State v. Hess, 240 Mo. 160; State v. Spivey, 191 Mo. 112; State v. Deitz, 235 Mo. 341.

Frank W. McAllister, Attorney-General, and Thomas J. Cole, Assistant Attorney-General, of counsel, for respondent.

(1) Appellant attacks the information because it does not state that the American National Bank is incorporated under the laws of the United States. The information is not for that reason defective. Sec. 4643, R. S. 1909; United States v. Williams, 28 Fed. Case No. 16706; State v. Washington, 259 Mo. 335; Sec. 5115, R. S. 1909; Wentz v. Chicago, B. & Q. R. Co., 259 Mo. 450; Ann. Cas. 1916B, 317; Davis v. McColl, 179 Mo.App. 198; Contra: Sherwood's Commentaries on Criminal Law of Missouri, p. 351. The information, however, states that the check was "drawn on the American National Bank, a banking corporation duly organized and existing according to law." The words quoted show that there is no merit in this complaint. (2) The information is not defective because it fails to allege that C. W. Howell was a fictitious person. Sec. 4643, R. S. 1909; Chapman v. State, 34 S.W. 621; Johnson v. State, 35 Tex. Crim. 271, 33 S.W. 231. (3) The court did not err in allowing witness Vining to show to the jury the similar characteristics which he believed existed in defendant's handwriting and in the alleged signature, "C. W. Howell." Sec. 6382, R. S. 1909; Weber v. Strobel, 194 S.W. 274; Goodyear v. Vosburg, 63 Barb (N. Y.) 154; United States v. Chamberlain, 12 Blatch. 380; Hawkins v. Grimes, 52 Ky. (13 B. Mon.) 262; Marshall v. Thomas, 31 Ohio C. C. 368; Storey v. First National Bank of Louisville, 24 Ky. L. R. 1801; 6 Encyc. Evidence, 384. (4) The court did not err in allowing witness Pickerell to testify as to whether or not the American National Bank was a corporation. Such fact can be shown by general reputation. Sec. 5238, R. S. 1909; State v. Fitzsimmons, 30 Mo. 239; State v. Cheek, 63 Mo. 364; State v. Jackson, 90 Mo. 159; State v. Decker, 217 Mo. 322; State v. Wise, 186 Mo. 46; State v. Knowles, 185 Mo. 169. (5) The court did not err in refusing to permit the poem witness Bartlett wrote about the defendant to be read in evidence. The extent of the inquiry as to interest or bias of a witness rests in the discretion of the trial court. 40 Cyc. 2659; State v. May, 172 Mo. 647; Czezewzka v. Benton-Bellefontaine Ry. Co., 121 Mo. 201; People v. Lustig, 206 N.Y. 172. (6) If there was direct and positive evidence of defendant's guilt, it was not necessary for the court to instruct on circumstantial evidence. State v. Crone, 209 Mo. 330; State v. Bobbitt, 215 Mo. 43; State v. Salmon, 216 Mo. 529; State v. Hubbard, 223 Mo. 84. (7) The action of the prosecuting attorney in stating, in effect, that defendant had been tried before, and that through a technicality defendant was given a new trial, was not properly saved for appellate review. Appellant's counsel merely objected to this remark and then entered into a discussion with the prosecuting attorney as to the truth or falsity of the remark. No ruling was made by the court on the objection, and no exception was saved to the failure of the court to rule. Neither was there a request for a rebuke. State v. Whitsett, 232 Mo. 529; State v. Phillips, 233 Mo. 307; State v. Harrison, 263 Mo. 662, 663. This former conviction was referred to without objection, in the evidence. Therefore it was not reversible error for the prosecuting attorney to mention it in his argument. State v. Leabo, 89 Mo. 248. (8) The prosecuting attorney also, in effect, said in his argument that if the State had no case, the trial court would not let the jury pass on it. Appellant's counsel objected, and their objection was overruled, and they duly saved their exceptions. No specific reason for the objection was stated, and therefore, the objection was of no force or effect. State v. Tatman, 264 Mo. 370; State v. Miller, 264 Mo. 407; State v. Phillips, 233 Mo. 307.

OPINION

WALKER, P. J.

Appellant was charged under Section 4643, Revised Statutes 1909, by information in the criminal court of Jackson County, with forgery in the second degree. Upon a trial he was convicted and his punishment assessed at five years' imprisonment in the penitentiary. From this judgment he appeals.

Appellant was in arrears for rent on an apartment he occupied in Kansas City. Upon being notified by the landlord that unless payment was made, he would be required to vacate the premises, he brought a check to the landlord for $ 25 and tendered it in payment of the rent. The latter refused to accept the same, and sent the appellant to his, the landlord's attorney, who accepted the check. This check was payable to the order of appellant, was endorsed by him, and was drawn on the American National Bank of Austin, Texas, and purported to have been signed by one C. W. Howell. At the time of the delivery of the check by appellant to the attorney, he showed the latter a land contract from which it appeared that appellant had sold two lots, describing them, in Wing & Steen's Addition to Kansas City, for $ 1400, twenty-five dollars of which was to be paid at the time the contract was made. Appellant, in tendering the check in payment of the rent, stated that it represented the $ 25 payment made to him under the contract. The attorney, upon receiving the check in payment of the rent, gave appellant a receipt therefor, and placed the check in a bank for collection. In due course of time it was returned unpaid. Testimony was adduced for the State that there was no addition to Kansas City designated as "Wing & Steen's Addition." On behalf of defendant, however, a plat entitled, "Wing & Steen's Addition to Kansas City," was introduced in evidence, and a witness testified that he had employed appellant to sell certain lots therein, the description of same being identical with those named in the appellant's land contract. This witness testified that he knew nothing of the "C. W. Howell," by whom the check purported to have been drawn, and if any contract had been made to effect a sale of the lots to said Howell witness had no knowledge of same. Experts testified that in their opinion certain letters offered in evidence, which were shown to have been written by the appellant, were in the same handwriting as that of the...