State v. Caudle

174 Mo. 388 | Mo. | 1903

GANTT, P. J.

The defendant was indicted at the March term, 1899, of the circuit court of Wright county for forgery.

The indictment contains three counts. The first charges the felonious and false making of a promissory note for $600 purporting to be signed by F. L. Caudle, A. M. Caudle and E. F. Jarrett; the second count charges him with having sold and delivered said falsely made and forged note to T. E. Gaskell; and the third count charges him with passing and uttering as true the said forged note to the said Gaskell with intent to defraud.

On his trial he was acquitted on the first and second counts, and found guilty on the third count.

The record proper since its amendment is without error. The indictment is well enough and the arraignment and impaneling of the jury and the return of the verdict and sentence of the court were without objection.

I. There was no error in denying the motion for a change of venue. Outside of the fact that it was not offered for filing until after all the jurors had been examined on their voir dire and a panel selected from which to obtain twelve jurymen, and after the- State 'had made its challenges and the defendant had completed his challenges, it nowhere discloses any diligence. It does not appear when the defendant discovered the alleged bias of the judge. The courts are not to be trifled with after this manner; but no exception was saved, and the point is untenable.

II. The facts in the record- are substantially the following: The defendant was a young man ambitious to deal in buying and selling stock. The Bank of Mansfield opened an account-with him'after this manner :

‘ ‘ Tom G-askell by F. L. Caudle. ’ ’

From time to time defendant would purchase stock on credit, and sometime in July, 1898, he gave a check on the Bank of Mansfield for $194. This check was honored, and defendant came to see the bank about it, inquiring if it had been paid.

He then applied to the bank for a loan of $600 to satisfy his overdrafts and to protect Gaskell. The negotiations resulted in an agreement between him and the cashier, Mr. Marr, by which the bank was to loan him $600, and he would secure it by a chattel mortgage, and personal sureties, his father, A. M. Caudle, and his brother-in-law, Mr. Jarrett. All parties agree that defendant executed his note for $600 as set out in the indictment, and. a chattel mortgage on certain horses described therein; and the cashier, and Mr. Nichols, the notary, testify that defendant then took the note to get his father and brother-in-law to sign it. Defendant denies that he took the note and insists he left it in the bank. The agreement at the time according to the cashier and Nichols was that the proceeds of- the $600 loan should be placed to the credit of Gaskell Brothers.

The evidence for the State then strongly tends to show that defendant took the note, and a day or two afterwards gave it to Gaskell with the names of A. M. Caudle and Jarrett on it as sureties. The forgery •charged and established was of these two names. Both A. M. Candle and Jarrett testified they never signed the note. There was evidence that defendant admitted ■to the cashier that neither of them signed it, and moreover that he never had the property described in the ■mortgage, and begged for leniency. The evidence tended to show that the names of A. M. Caudle and Jarrett were hot in the handwriting of defendant, but that these names'were on the note when he delivered •it to G-askell, who indorsed it as guarantor to the bank, .and the proceeds were placed to the eredit of Gaskell Bros. The jury found defendant not guilty of the forgery, but guilty of uttering and passing it, knowing the names of these sureties had been forged thereon. The evidence if credited, as it was by the jury, was •sufficient to sustain the conviction on the third count.

III. The instructions asked by defendant were properly refused, either because there was no foundation in the evidence to support them, or because the court of its own motion had already fully instructed on the points involved. Those for the State are not open to any fair criticism.

IY. The principal objection to the exclusion of ■evidence is found in the refusal of the court to permit witness L. D. Marr to answer the following question:

“Q. I will ask you to state to the jury whether •or not you used this language in substance (to ~W. N. Newton): ‘Can’t you go down and get Caudle- to fix up a note for $600 to make us safe;.we will give him •all the time he could reasonably ask; if you will get him to do that we will not carry this prosecution any further so far as we are concerned, but can not say as for the State, but I am satisfied the State will be governed by our wishes.’ ”

To this question the State’s counsel objected and the court sustained the objection and defendant ex•cepted.

The purpose of this question, we presume, was to lay a foundation to impeach Marr, by showing that he was willing to accept payment of the note from defendant. It will be observed that the proposal, if true, did not amount to a compounding of the felony. It was an attempt to recall the witness and cross-examine him upon an irrelevant and collateral issue for the sole purpose of impeachment and this is not permissible. [State v. Rogers, 108 Mo. 202; Wharton Crim. Ev. (9 Ed.), sec. 484; McFadin v. Catron, 120 Mo. 264.]

Y. There was no error in denying a new trial on the ground of newly-discovered evidence and, indeed, it is not urged in this court.

The foregoing are the grounds upon which a reversal is sought and none of them are sufficient, in our opinion.

The judgment is affirmed;

Burgess and Fox, JJ., concur.