The State v. Witherspoon
| Decision Date | 27 December 1910 |
| Parties | THE STATE v. JOHN WITHERSPOON, Appellant |
| Court | Missouri Supreme Court |
Appeal from Bates Circuit Court. -- Hon. C. A. Denton, Judge.
Reversed and remanded.
C. J Henry and D. C. Chastain for appellant.
(1) Judge Denton was disqualified from hearing this case. The issue was the forgery of the deed of trust, and the record shows that M. Goss, whose name was forged to the mortgage brought in 1899 a suit against the Walton Trust Company to cancel the mortgage on the grounds of forgery. Judge Denton was one of the attorneys for the Walton Trust Company in the case, and upon the trial the mortgage was cancelled as a forgery. It certainly appears that he should not sit in the trial of a cause wherein the forgery of the identical instrument was in issue. The issue of forgery has once been decided adversely to his firm and that being true it could not be said that he was unprejudiced or unintrested in this cause. R. S. 1899, sec. 2594. (2) The court erred in the admission of testimony on the part of the State in the following instances: (a) The alleged forged deed of trust should not have been admitted in evidence, for the reason that the same is pleaded by tenor in the indictment and the State was thereby held to strict proof thereon. There are a great number of words spelled differently in the deed as pleaded and as offered in evidence. These differences constitute a variance and violate the rule of strict proof. 19 Cyc. 1397; 1 Bishop on Crim. Proc. (3 Ed.), sec. 562; Vol 2, Ib., sec. 398; State v. Fitzgerald, 20 Mo.App. 408; State v. Smith, 31 Mo. 120; State v. Fay, 65 Mo. 490; State v. Chamberlain, 75 Mo. 382. The case of Bennett v. State, supra, involves many of the same variances complained of and is on all fours with this case. In addition to the above complained variances, in the acknowledgment to the same the date appears as 12, while in the indictment the same appears as 12th; further, in the one appears the word "Missouri" while the other has "Mo.," and in one appears at the place for the notary's seal, "LS," while in the other the same is "John R. Hales, Notary Public Bates County, Missouri." While it is recognized that the acknowledgment is not a necessary part of the instrument, yet being on the same instrument on a question of the identity of the same, the acknowledgment is material as a mark of identification. (b) Under the common law rules this check was not sufficiently identified and Walton was not a competent witness as to it. State v. Clinton, 67 Mo. 385; State v. Thompson, 132 Mo. 321. If admissible at all it became so under Sec. 4679, R. S. 1899, which permits an examination and comparison with an instrument admitted to be genuine or shown to the satisfaction of the judge to be genuine. This statute being in derogation of the common law is to be strictly construed. Bank v. Huffman, 74 Mo.App. 203. The statute does not contemplate that an instrument, the genuineness of which is involved in the case in issue, may be used as a standard of comparison. Sankey v. Cook, 82 Iowa 125. (3) The court should not have allowed the witness Mrs. Cook to be sworn and testify. Counsel for the State knew she was the wife of the defendant and that she had testified to that fact at the previous trial, and in the presence of the State's counsel objection was made to her taking the stand, for it was a delicate attempt on the State's part to prejudice the jury by showing that defendant had married the witness under the name of Cook. The evidence of the witness bears this out and shows the purpose of the State. And the court erred in thereafter refusing to instruct the jury not to consider any testimony she gave and in refusing to withdraw the same from the consideration of the jury. R. S. 1899, sec. 2637; State v. Willis, 119 Mo. 485. (4) A deed of trust in Missouri is recognized as a security for a debt and not of the same class or dignity as a deed to real property. A deed of trust is not ejusdem generis with a deed to real property and hence is not included in the term "other instrument," which instruments must be of the same general class and nature as a deed to real property State v. Schuchman, 133 Mo. 111; State v. South, 136 Mo. 673; State ex rel. v. Press, 159 Mo. 466; State v. Carpenter, 164 Mo. 588; State v. Gilmore, 98 Mo. 213; Dooley v. Greening, 201 Mo. 354; Ex parte Neet, 157 Mo. 527; Shirk v. People, 11 N. E. (Ill.) 68.
Elliott W. Major, Attorney-General, and Charles G. Revelle, Assistant Attorney-General, for the State.
(1) The only way by which a judge may be disqualified from sitting in the trial of a cause is by compliance with the provisions of Secs. 5198 and 5199, R. S. 1909, and then only because of the existence of one or more of the causes mentioned therein. State v. Moore, 121 Mo. 521. A consideration of the statutory causes entitling an accused to a change of venue makes it manifest that appellant was not entitled to the change unless he filed a verified application in proper form, together with the affidavits of at least two reputable persons. State v. Brownfield, 83 Mo. 451; State v. Neiderer, 94 Mo. 81; State v. Richardson, 194 Mo. 336; State v. Spivey, 191 Mo. 87. Appellant's motion cannot be treated as his own application to disqualify the judge, but the most that can be said of it is that it is a mere suggestion addressed to the discretion of the trial court to the effect that he voluntarily disqualify himself. This suggestion the court did not see fit to adopt, and with the exercise of that discretion this court will not interfere. State v. Gilmore, 110 Mo. 1. (2) In the case at bar, by overruling the demurrer to the evidence, and by giving and refusing the instructions it did, and by overruling the motion for new trial, which again directly submitted this question to the trial court for decision, the court found and affirmatively declared that the alleged variance was not material or prejudicial, and this court will adhere to the action of the trial court on this finding. State v. Kerrigan, 210 Mo. 371; State v. Decker, 217 Mo. 321; State v. Jackson, 221 Mo. 478; State v. Barker, 64 Mo. 285; State v. Smith, 80 Mo. 520. (3) The check had been identified as the one upon which the money deposited by appellant had been paid by the bank, and had been admitted without objections or exceptions. The signatures on the deed of trust and note had been positively identified and proven to be that of defendant. The magistrate who took appellant's acknowledgment to the deed of trust had testified positively that appellant had in his presence signed the name "M. Goss" to both the note and deed of trust. Under such circumstances it was perfectly proper to compare the signature attached to the check with appellant's signature to the deed of trust and note "which had been proven to the satisfaction of the judge to be genuine." R. S. 1909, sec. 6382; State v. Tompkins, 71 Mo. 613; State v. Stark, 202 Mo. 210; State v. Thompson, 141 Mo. 408; Cook v. Strother, 100 Mo.App. 622. (4) To say that a deed of trust in the form of the one forged by this appellant does not in any way affect or change any right or interest in real estate would be taking an unpardonable liberty with the language, and completely nullifying a statutory enactment. State v. Jackson, 221 Mo. 478. The terms "deed or other instrument" are used in both the first and second divisions of the section, and this court has held, when applying the second subdivision, that such terms include a deed of trust. State v. Tompkins, 71 Mo. 613; State v. Sharpless, 212 Mo. 176.
On the 12th day of June, 1900, the grand jury of Bates county, Missouri, returned into open court an indictment jointly charging defendant and Jesse Roe and Cap Neff, alias Jones, with the crime of forgery in the first degree, the subject of the forgery being a deed of trust for $ 870 on certain real estate located in Bates county, Missouri, and owned by M. Goss, whose act and deed the forged instrument purported to be.
Owing to the absence of the defendant and the inability of the State to apprehend him, the cause was not taken up until the regular May term, 1909, of the circuit court of that county, at which time the defendant was arraigned and a plea of not guilty entered. Thereafter, to-wit, at the regular October term, 1909, defendant filed a motion praying for a change of venue, in which he sought to disqualify the regular circuit judge, Hon. C. A. Denton, alleging therein that he had been of counsel in a certain civil action in which the genuineness of the deed of trust alleged to have been forged by defendant was in issue. A statement of facts relative to the matters set out in the motion was agreed upon by counsel for the State and defendant, and the motion was thereupon overruled. Defendant was then put upon his trial, which resulted in a verdict of guilty and the assessment of punishment at imprisonment in the penitentiary for a term of ten years. After motions for a new trial and in arrest were filed and overruled, defendant was sentenced pursuant to the verdict, and an appeal to this court was granted.
On the part of the State the testimony tended to prove that during the month of March, 1898, Mr. J. W. Jameson was acting in the capacity of agent and making loans at Rich Hill, Missouri, for the Walton Trust Company, a banking institution, which had its principal business office at Butler. At that time appellant, who was unknown to Jameson appeared in person and made application to Jameson for a loan of $ 800, stating that he was M. Goss; that he lived at Merwin, and was the owner of certain designated real...
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