The State v. Tull

• Decision Date: 31 January 1894
• Citation: 24 S.W. 1010,119 Mo. 421
• Parties: The State v. Tull, Appellant
• Court: Missouri Supreme Court

24 S.W. 1010

119 Mo. 421

The State v. Tull, Appellant

Supreme Court of Missouri, Second Division

January 31, 1894

Appeal from Jackson Circuit Court. -- Hon. J. W. Wofford, Judge.

Affirmed.

Boland & O'Grady for appellant.

(1) The court erred in its direction to the jury as to the punishment to be inflicted if they found defendant guilty. Watson v People, 25 N.E. 567; Irvin v. State, 8 S.W. (Tex.) 681. (2) The court erred in excluding the evidence offered by defendant as to the relative property interests of defendant and his mother.

R. F Walker, Attorney General, and Marcy K. Brown, Prosecuting Attorney, for the state.

(1) The indictment charged the forgery of a promissory note; the evidence was as to such forgery, which is forgery in the third degree. R. S. 1889, sec. 3641. (2) The penalty affixed by the jury was five years, which might lawfully have been assessed under an accurate charge of the court. 2 Thompson on Trials, sec. 2189. (3) The judgment of the court reduced the penalty to two years, the minimum penalty which might lawfully have been assessed by the jury if they had been accurately charged -- the court acting under Revised Statutes, 1889, section 4233. (4) The court committed no reversible error in the matter of giving or refusing instructions.

OPINION

Gantt, P. J.

This is an appeal from Jackson county. Defendant was indicted in the criminal court for forgery in the third degree, and convicted.

The jury by their verdict assessed his punishment at five years in the penitentiary, but the court reduced it to two years under section 4233, Revised Statutes, 1889, and sentenced him accordingly. The errors assigned in this court are three and will be determined in the order of appellant's brief.

I. The indictment charged forgery in the third degree, the evidence tended to prove that degree and no other, and the instructions were for that degree, but by some oversight or inadvertence of the court and prosecuting counsel, the jury were instructed that if they found defendant guilty, they would assess "his punishment at imprisonment in the penitentiary for not less than five nor more than ten years."

The punishment for forgery in the third degree by section 3656, Revised Statutes, 1889, is not less than two years and not exceeding seven years. It is clear that as to the punishment the instruction was erroneous, but as the court subsequently reduced it to the minimum punishment prescribed by the law, ought the case to be reversed?

Affixing a punishment, either by the court or jury, is necessarily dependent upon a finding of guilty of the offense charged. Until that is done none can be inflicted. The instruction was correct as to all the essentials of forgery in the third degree. The jury found defendant guilty of that offense. The court had erroneously given them the privilege of assessing it from five to ten years, instead of two to seven. The jury placed it at five. The court reduced it to the lowest possible punishment, as soon as its attention was called to the error. How was defendant injured? Concede the jury would have inflicted the minimum, that is all he is called upon to suffer. If the court had properly instructed, and the jury had exceeded the punishment allowed by law, the court could have reduced it. R. S. 1889, secs. 4230-4233.

Had the trial court not interfered and given defendant the benefit of the lowest punishment prescribed, we think it would have constituted error, as was held in State v. Sands, 77 Mo. 118; State v. McNally, 87 Mo. 644, and People v. Watson, 25 N.E. 567; but as he was found guilty of the offense with which he was charged, and by the judgment...