The State v. Tobie
| Decision Date | 23 November 1897 |
| Citation | 42 S.W. 1076,141 Mo. 547 |
| Parties | The State v. Tobie, Appellant |
| Court | Missouri Supreme Court |
Appeal from Jackson Criminal Court. -- Hon. John W. Wofford, Judge.
Affirmed.
Marcus T. C. Williams for appellant.
(1) The second count of the indictment upon which defendant was convicted fails to charge that defendant caused to be forged the deed alleged in the indictment, with a felonious intent to defraud, and therefore fails to state facts sufficient to constitute any offense under the law of this State. R. S 1889, sec. 3626; Mattison v. State, 3 Mo. 421; State v. Jackson, 89 Mo. 561; State v Clayton, 100 Mo. 519; State v. Taylor, 117 Mo 181; State v. Fairlamb, 121 Mo. 137; State v. Norman, 136 Mo. 1; State v. Rucker, 93 Mo. 91; State v. Rowlen, 114 Mo. 626; State v. Patterson, 116 Mo. 505; State v. Allen, 116 Mo. 548; State v. Gullette, 121 Mo. 448; State v. Crab, 121 Mo. 554; State v. Pratt, 121 Mo. 556; State v. Dawson, 124 Mo. 418; State v. Pierce, 136 Mo. 34. (2) The court erred in refusing to permit the identification of the paper handed to defendant while on the witness stand as the genuine handwriting of defendant, for use as a standard of comparison with the forged deed. Acts 1895, p. 284; Rogers, Exp. Test., sec. 137; 9 Am. and Eng. Ency. of Law, pp. 283, 298; 2 Taylor's Evidence, sec. 1668; Mallory v. State, 36 S.W. 751. (3) The instruction 1 for the State is erroneous in failing to require, in order to convict defendant, that he should have aided in or abetted the forgery by Ebbs with an intent to defraud. State v. Umble, 115 Mo. 452; R. S. 1889, sec. 3626; State v. Clayton, 100 Mo. 519; State v. Gullette, 121 Mo. 448; State v. Fairlamb, 121 Mo. 155; State v. Hayes, 105 Mo. 82. (4) Instruction 2 for the State is subject to same objection. In that instruction the intent to defraud is limited to the conspiracy to forge the deed and is not required to be forgery itself. (5) The word "deed" imports a complete instrument, signed, sealed, and delivered. State v. Fisher, 65 Mo. 438. (6) Delivery is essential to the complete execution of a deed, and if a deed is not delivered it is no more a deed than if not signed. Huey v. Huey, 65 Mo. 689; Turner v. Carpenter, 83 Mo. 333; Hammerslough v. Cheatham, 84 Mo. 13; Goddard's case, 2 Rep. (Coke) 4b. (7) Instruction 3 given for the State authorizing a conviction on the uncorroborated testimony of an accomplice alone, although it has heretofore received the sanction of this court, is wrong in principle, opposed to the great weight of authority, and should be repudiated. 29 Am. and Eng. Ency. of Law, p. 825, and cases cited; State v. Jones, 64 Mo. 391; State v. Chiagk, 92 Mo. 413.
Edward C. Crow, Attorney-General, and Sam B. Jeffries, Assistant Attorney-General, for the State.
(1) The indictment is good. State v. Fisher, 65 Mo. 407; 4 Parker's Crim. Rep. 217; Kelley's Crim. Law, 523; State v. Gullette, 121 Mo. 447. (2) It is alleged that the forgery was done with felonious intent to defraud. The second count of the indictment alleges that defendant "unlawfully and feloniously caused to be forged, etc., etc.," and these terms, "unlawfully and feloniously," are connected with the intent by the words "then and there to defraud." State v. Herrell, 97 Mo. 109. (3) It is not necessary for the indictment to show in what manner the act charged is to result in fraud. That is a matter of evidence. Commonwealth v. Dunlehay, 157 Mass. 386; Traverse v. The State, 83 Ga. 372. (4) The instruction numbered 1 properly submits to the jury the question whether the act was done with the intent to injure or defraud. State v. Warren, 109 Mo. 430; State v. Gullette, 121 Mo. 447. (5) Instruction 3, as to an accomplice and the testimony thereof, correctly states the law under the decisions of this court. State v. Donnelly, 130 Mo. 642; State v. Dawson, 124 Mo. 422; State v. Crabb, 121 Mo. 554; State v. Woolard, 111 Mo. 248; State v. Jackson, 106 Mo. 179. (6) The refusal of the two instructions was no error, because the court had previously given instructions upon the same propositions. State v. Elliott, 98 Mo. 150; State v. Jackson, 99 Mo. 60; Kelley's Crim. Prac., sec. 397.
The defendant was jointly indicted with Alan F. Reed and John T. Ebbs in the criminal court of Jackson county at the September term, 1895. A severance was granted, and Reed and Tobie were separately tried. The latter, the defendant herein, was convicted on the twenty-ninth of April, 1897, of having feloniously caused to be forged in Jackson county, Missouri, a certain deed, purporting to be the act of one C. E. Wetmore, to certain lands in Leavenworth county, Kansas, by which the title thereto purported to be conveyed to one F. L. Kirkbride with the intent then and there to defraud said Kirkbride.
The facts are that Reed was a barkeeper in Kansas City, Missouri; the defendant Tobie was a carpenter, and these two and one John T. Ebbs agreed and conspired together to swindle one F. L. Kirkbride, a grocery merchant in Kansas City, out of his stock of groceries by inducing him to accept a forged deed to certain lands near Leavenworth, Kansas, to which they had no semblance of a title. They proceeded in this manner: These three men represented to Kirkbride, through Ebbs, that Ebbs's name was C. E. Wetmore, and that he owned the northwest quarter of section number 28, township number 10, range 21 east, of sixth principal meridian, in Leavenworth county, Kansas, and Ebbs agreed to trade the said quarter section of Kansas land, together with some other property, for the grocery store of Kirkbride and $ 200 cash, and in order to accomplish this result, Tobie procured an abstract to the land named, and by means of chemicals removed certain words and figures in the abstract, and removed two sheets thereof, so that the same, when presented to Kirkbride, showed a clear title in C. E. Wetmore to the one hundred and sixty acres of Kansas land. Ebbs represented himself to be Wetmore, and took the abstract to Kirkbride, and Kirkbride in turn took the abstract to William T. Reed, his attorney, in the New York Life Building in Kansas City, Missouri. Ebbs here signed as C. E. Wetmore the deed conveying the quarter section of land in Leavenworth county, Kansas, and the attorney, William T. Reed, examined the abstract for Kirkbride, whose attorney he was, and pronounced it all right, showing a clear title in C. E. Wetmore to the land described. Reed was not a notary in this State, but lived in Kansas City, Kansas, and had an office there, and was a notary in Kansas, and Ebbs asked Reed to take the acknowledgment, and Mr. Reed said to him that he was not a notary in this State, and suggested to him that he go to some notary in Kansas City, Missouri, but Ebbs replied that he was a stranger in Kansas City, Missouri, and unacquainted. Thereupon Mr. W. T. Reed replied that it was too late to find another notary that evening in Kansas City, Missouri, but if they would step over into Kansas within his jurisdiction he would take the acknowledgment. Kirkbride then and there in the office of W. T. Reed, Esq., in the New York Life Building in Kansas City, Missouri, on June 20, 1895, delivered his check for $ 200 to Ebbs, and also a bill of sale of his stock of groceries, and thereupon, at the same time and place, Ebbs, simulating C. E. Wetmore, delivered the deed to the land in Kansas to Kirkbride, and both then accompanied Mr. W. T. Reed to his office in Kansas City, Kansas. On their way over Kirkbride, who had the deed, gave it to Mr. Reed. When they arrived at his office in Kansas City, Kansas, he took Ebbs' acknowledgment of the deed and made his certificate and sent it that same night by mail to Leavenworth for record. After they returned from Kansas City, Kansas, Kirkbride gave formal possession of the stock of goods to Ebbs. The next day Tobie and Ebbs remained in charge. It seems to have been a part of the scheme to trade or turn over the stock to one Deeter. For some reason not clearly disclosed, soon after the consummation of the trade, Kirkbride began to suspect that he had been defrauded. On the evening of the twenty-second of June, Ebbs, Tobie, the defendant, Alan F. Reed, James Steele and Dan Deeter all met at or about the store. The defendant Tobie had gone to the residence of Ebbs about 4 o'clock in the afternoon of that day and advised Ebbs that all the parties would be at the store between 7 and 8 o'clock for the purpose of turning over the goods to Deeter, another Kansas man. On their way down Tobie remarked that the other fellows were trying to "hog" Ebbs and himself, and leave them out, whereupon Ebbs said that "nobody will get the bill of sale unless I get some money out of it." When they reached the store that evening the clerk had closed up, and was upstairs with Kirkbride and his wife. Thereupon they called for the clerk, whereupon Mr. Kirkbride came down, and coming up to the crowd said "This deal is a fraud." Whereupon Tobie, Alan F. Reed, and Deeter hurriedly left, going in different directions, leaving Ebbs alone with Kirkbride. Ebbs soon wilted, and returned the bill of sale to Kirkbride. On the succeeding morning, about 6 o'clock, Tobie appeared at the home of Ebbs, and gave him $ 2 and advised him to "skip" and demanded the bill of sale, but Ebbs told him he had returned it to Kirkbride. Thereupon they were all arrested. The errors assigned will be noted in their order.
I. As the indictment is challenged, it is thought best to give it at length, as follows:
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