State v. Stark

100 S.W. 642, 202 Mo. 210, 1907 Mo. LEXIS 292

• Court: Supreme Court of Missouri
• Decided: March 19, 1907
• Status: Published

Opinion

GANTT, J.

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. P. 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. P. 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. P. 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 forged, counterfeited and falsely made, with the intent then and there and thereby to unlawfully and feloniously injure and defraud by then and there unlawfully and feloniously uttering and passing the same as true, and against the peace and dignity of the State.”

The defendant was put upon his trial at the September term, 1904, and was convicted, but was granted a new trial. Afterwards at the March term, 1905-, the defendant was again put upon trial and was again convicted and his punishment assessed at two years, in the penitentiary; from that judgment he has prosecuted this appeal.

The testimony tended to prove without any contradiction that the land described in the information was the property of W. F. Brown of Kansas City, and that he had never signed any deed to any person for said property. A short time before the date of the forged deed, the defendant visited L. M. Musser, a lawyer and abstractor at Tuscumbia, and requested Musser to ascertain the name of the last record owner of this real estate. Mr. Musser examined his. abstract books and told the defendant that W. F. Brown was the last owner. The defendant then desired to know where Brown lived. Musser was unable to tell him his residence, but told him he could ascertain by examining the deed in the recorder’s office, and gave him the hook and page in which said deed was recorded. Shortly after this, the defendant stated to Mr. Marshall, the cashier of the bank in Tnscnmbia, that he had bought this real estate from a man by the name of Wait, and he needed a small sum of money to finish paying for the same, and that he had instructed Wait to mail the deeds directly to the bank. Marshall already had a chattel mortgage on some of defendant’s live stock, and defendant agreed to give the deed of trust on this real estate after he got his deeds and include both loans in one. In a few days, Marshall received an envelope containing the deed from W. F. Brown to W. J. Wait, and a deed from Wait to the defendant; both deeds purporting to convey the land in question. On the Sunday following, the defendant, who lives several miles west of Tuseumbia, came to that town and learned' from Marshall that he had received both deeds, andi he thereupon requested Marshall to have them both recorded, which was done. The defendant then gave the bank a deed of trust on said real estate. In the course of a few weeks, the defendant negotiated a sale of said real estate to John and Frank Yernon. The defendant and Mr. Yernon went together to Eldon where the deed was prepared, and the defendant and his wife signed the same, conveying this land to the Yernons. The defendant at that time exhibited the two deeds, which he said conveyed a perfect title from Brown to Wait and from Wait to defendant, both having been duly recorded. Upon examining the deeds, it was discovered that the wife of Wait had not joined in the deed and the Yernons objected to the title for that reason. Defendant assured them that it was all right, that the bank had taken a deed of trust on the property, and he could sell it the next day for more money. He refused to give them any time to investigate or think about the matter, but insisted that the trade must be closed then, or not at all. After advising with the gentleman who was writing the deed and receiving assurance from him that he did not think they would have any trouble, the Vernons accepted the defendant’s deed and paid him the money therefor, and the defendant then paid off the mortgage to the bank of Tuseumbia. The Vernons were saw-mill men, and they went to- work to cut the timber off of this land, but soon received notice from Mr. Bro-wn to the effect that he owned the land and they must cease cutting the timber. Thereupon the Vernons went to see the defendant and asked him where he purchased this land and he stated to them that he met Wait in Versailles and also in Sedalia, and that he finally bought the land from Wait at Tipton. U© also stated that after Wait gave him the deed at Tipton, he (defendant) mailed said deeds to- the bank of Tuseumbia. To other witnesses the defendant stated that he did not find his man at Versailles nor at Sedalia, but had to go to Independence; that Independence was a nice big town and he had a good trip Up there. The deed from Brown to Wait purported to have been executed before a notary public named Craig at Independence; and the deed from Wait to the defendant was executed before James Sommerhauer, a notary public at Tipton, Missouri. The defendant stated that he had paid the money to Wait, but did not have anything to show that he had paid it, but he did not expect any trouble to result on that account. The Vernons then visited Sommerhauer and took him with them to see the defendant and he recognized the defendant as the man who- signed the deed before him, and gave his name at the time as Wait. Sommerhauer testified at the trial that the defendant in his opinion was the man who acknowledged the deed as Wait. The State’s evidence further tended to prove that the signature to the deed from Brown to Wait was in the defendant’s handwriting as was also- the deed from Wait to defendant. The deed from Brown to Wait was acknowledged August 27, 1903, and the deed from Wait to the defendant was acknowledged August 29', 1903. The defendant’s evidence tended to prove that on the date of the alleged forgery of the deed from Wait to defendant, the defendant was not in Tipton, and did not know anything about the execution of the deed by Wait, and did not know anything about the execution of the deed from Brown to Wait; hut that he and his wife and two daughters drove in a wagon from his farm to Eldon, transacted some business there that day and returned home, when he went to seek employment on a new railroad a few miles away. Defendant further stated that he met this man Wait in Eldon; that Wait told him he had just traded for this Brown land, and would like to go and see it; that thereupon defendant took Wait in his wagon and drove around the road by the Brown land and pointed it out to Wait, and that Wait said he did not like it and wanted to sell it. The defendant then agreed to buy the land provided he could raise-the money, and then Wait left him and he did not know where he went; that afterwards the defendant made arrangements to raise the money and took it with him to Versailles, where he got the station, agent to write a letter to Wait at Sedalia to the effect that he would he there the next day and pay him for the land. In the meantime, Wait had mailed the deeds to the bank at Tuscumbia, and the defendant had been informed that they were all right. That the defendant then went to Sedalia, met Wait at the depot and paid bim the money. Wait went into the station and had the station agent write a receipt, which he signed and gave to defendant, but the defendant had lost the receipt. Defendant denied that he signed any of the forged deeds, and also testified that he was an illiterate man and could only write his name. The members of defendant’s family corroborated him in regard to his ■whereabouts on the day of the alleged forgery, and also as to his inability to write anything except his own name.

1. The information in this case is bottomed upon section 2012, Revised Statutes 1899, and is sufficient to constitute a valid charge under that section. [State v. Hathhorn, 166 Mo. 229; State v. Mills, 146 Mo. 195.]

2. It is urged by the learned counsel for the defendant that it is highly improbable and unreasonable to believe that the defendant could have been guilty of the offense charged, for the reason that his evidence tends to show that he was a man fifty years of age, of little or no1 education, and according to his testimony, and that of his family, he could only write his name in his business transactions. This contention ignores the nature of the charge in the information. The defendant was not charged with forging the deed, but with having in his possession the said forged and counterfeit instrument knowing the same to- have been forged, with the intent of injuring or defrauding by uttering and passing the same as true. It is not at all essential to his conviction under this charg*e that he should have actually forged the said -deed or have personally affixed the name of the said Brown thereto. So the proof of his limited education and want of ability to write the instrument falls far short of disproving that he had said forged instrument in his possession knowing the same to have been forged and counterfeited and with intent to- defraud by uttering the same as genuine. [State v. Allen, 116 Mo. l. c. 554, 555; State v. Hathhorn, 166 Mo. 236.] There was ample evidence to justify the jury in finding not only that the deed from Brown to Wait was forged, but that the defendant had knowledge of such forgery and was in the possession of said forged and counterfeit instrument with the intent to utter and pass the same as a genuine deed.

3. The verdict of the jury is challenged as insufficient. There was but one single charge in the indictment, and upon that charge the jury returned a verdict of, “We, the jury, find the defendant guilty and assess his punishment at imprisonment in the penitentiary for a term of two years.” This verdict was sufficient. [State v. Berning, 91 Mo. 82; State v. Elvins, 101 Mo. 243.] The verdict in this case is easily distinguished from the cases of State v. DeWitt, 186 Mo. 61, and State v. Cronin, 189 Mo. l. c. 673.

4. There is no merit in the contention that the venue was not sufficiently established. There was abundant evidence tending to show that the defendant had the forged deed in his possession in Miller county with the intent then and there knowingly to utter the same in said county.

5. The instructions one and two> given on behalf of the State were full and fair and exceedingly liberal towards the defendant. It is unnecessary to burden this opinion with reproducing these instructions.

6. During the trial, the State offered in evidence a note and chattel mortgage executed by the defendant to one Austin, and by Austin endorsed to Graham. This note was offered for the purpose of proving the handwriting of the defendant for the purpose of comparing it with the signatures to the alleged forged deed. This was clearly admissible under section 4679> Revised Statutes. 1899.

7. As to the proposition advanced that the court erred in permitting counsel for the State to cross-examine the defendant on matters concerning which he was not examined in chief, it is sufficient to say that no objection was made to his examination by the attorney for the defendant and no exceptions saved and of course the matter is not before us for review.

8. No error was committed by the court in permitting the witnesses Musser, Howenstein and Harrison to testify as experts on handwriting. They were qualified, but if they were not, tbe motion for new trial nowhere assigns their testimony as ground of error.

9. No error was committed in permitting tbe State to prove that about the time of tbe commission of tbe act charged, the defendant had in his possession another forged deed from Wait to himself, which purported to convey title to the same land. It was entirely competent to prove that the defendant forged the signatures to the 'deed from Brown to Wait and from Wait to defendant. The rule has long been established in this State that upon an indictment for forgery, evidence is admissible to show that defendant has been guilty of other forgeries than the one charged, committed about the same time. The evidence is admitted to establish, the fraudulent intent on the part of the defendant, notwithstanding such' evidence may also tend to prove the defendant guilty of another distinct offense.

10. There are various other objections, among them, the proposition made by the defendant after his conviction, that he was prosecuted by information and not by indictment, but we have carefully considered all these points and in our opinion none of them constitute reversible error. Accordingly, the judgment of the circuit court is'affirmed.

Fox, P. J., and Burgess, J., concur.