229 Mo. 620 | Mo. | 1910
— By information filed by the prosecuting attorney of Jackson county in the criminal court thereof, the defendant was charged with having, on the 4th day of April, 1907, forged a certain deed, purporting to be the act of one Anton Mielkey, conveying to himself (defendant) said Mielkey’s interest in certain real property in Kansas City, Jackson county, Missouri, with intent to defraud. He was convicted of said offense, his punishment being assessed at ten years in the penitentiary. From the judgment of conviction defendant appealed to this court.
The evidence on behalf of the State tended to prove that Anton Mielkey lived at 807 Linwood boulevard, Kansas City, Missouri, and was since 1882 owner of the real estate in said city, the deed to which defendant is charged with having forged. Defendant and his wife, Lotta Martin, lived at 3215 Smart avenue, in Kansas City. Mielkey became acquainted with the defendant through the latter’s wife, who had been dressmaker for Mielkey’s wife, and who often visited at his house. It appears that on August 1, 1906, Mielkey conveyed this property by warranty deed to Mrs. Martin, and that several days thereafter Mrs. Martin and her husband, the defendant, re-conveyed the same to Mielkey. As to this transaction Mielkey testified that Mrs. Martin was to hold the property for the Bank of Commerce, and that he had no trouble in getting it back. Oh Christmas day, 1906, defendant went to Mielkey’s
■ Mr. Brown says that he can’t handle the proposition in any other way. He says that he could not get the money without sending to the home office. He says it is simply a matter of your trusting the property in my name for a few days. He says he can’t understand why you would trust a transfer only a few months ago, and to the same parties, and not now. He says that he will pay for all trouble if he fails to put the deal through. He says that he will guarantee to put the trade through. Now, Mr. Mielkey, I have told you all that Brown says. Now, if you have enough confidence in my honesty (you know that I would not do you any wrong), I can pay you for the property and make some money. There is no difference in this trade than the one when you made the deed to Lottie. Only this, this proposition will go through. If it should fall through, the deed will be returned and your troubles paid for the expense of the abstract, as the deed won’t be recorded, there will be no harm done.
Your friend,
T. L. MARTIN.
I am to let him know tomorrow; if you accept, meet me Tuesday at Fidelity Trust Company at 11 o’clock a. m.
We can do this if you care to make the trade, you can execute deed and take a mortgage for $5000, neither paper to be recorded. When you receive the money you can give me the mortgage as you know' the purchase money mortgage don’t have to be filed to hold priority.
Don’t you think that this plan protects you till you get the money? This way you run no risk.
This Indenture, made on the fourth day of April A. D. one thous- and nine hundred and seven, by and between Anton Mielkey, of the county of Jackson, State of Missouri, party of the first part, and Thomas L. Martin, of the county of Jackson, State of Missouri, party of the second part,
Witnesseth, That the said party of the first part, in consideration of the sum of five thousand dollars to him paid by said party of the second part (the receipt of which is hereby acknowledged) do by these presents grant, bargain and sell, convey and confirm unto the said party of the second part,- heirs and assigns, the following described lots, tracts or parcels of land, lying, being and situate in the county of Jackson, and State of Missouri, to-wit: All of that part of the northeast % of the southeast % of section 17, township 49, range 33, described as follows:
Beginning at a pwrt on the south line of Linwood Boulevard in Kansas City, Missouri, 237 feet east of the west line of the said northeast 14 of southeast 14, thence east along the south line of said Linwood Boulevard 60 feet; thence south 125 feet; thence west 60 feet; thence north 125 feet to point of beginning in Kansas City, Missouri..
To Have and to Hold the premises aforesaid, with all and singular the rights, privileges, appurtenances and immunities thereto belonging or in anywise appertaining unto the said party of the second part and unto his heirs and assigns forever; the said party of the first part hereby covenanting that he has lawfully seized of an indefeasible estate in fee of the premises herein conveyed; that he has good right to convey the same; that the said premises are free and clear from any incumbrance done or suffered by him or those under whom he claims; and that the party of the first part will warrant and defend the title to the said premises unto the said party of the second part and unto his heirs and assigns forever, against the lawful claims and demands of all persons whomsoever.
In Witness Whereof, The said party of the first part has hereunto set his hand and seal the day and year above written.
(Seal) ANTON MIELKEY.
Mielkey denied that he ever gave defendant any such deed as he saw on the record, and a certified copy of which was introduced in evidence. On the evening of the 10th of May Mielkey called at Martin’s house, where they again played cards. Defendant accompanied Mielkey to the car line, and before separating Mielkey said: “Oh, say; I was up to the city hall and I wanted to pay my taxes, and found they were already paid. I wonder whether I had better look up by whom they were paid.” Defendant answered: “No, don’t do that; if they are paid it is so much the better for both of us.” Next day Mielkey had his attorneys examine the records, and on their advice he went to the prosecuting attorney, swore out a complaint, and had defendant arrested.
Harry E. Longenecker, notary public, testified that he never took the acknowledgment to the deed in question; that he was acquainted with the defendant, but not with Mielkey; that the defendant had been in his office a few times, and was there once while he was out; that he kept his notarial seal in a pigeon-hole of his roller-top desk, and in view of anybody who might be in his office when the desk was open. Mielkey testified that he never made, signed, or acknowledged said deed.
The evidence shows that on April 13, 1907, defendant borrowed $1200 from the Missouri Savings Association, payable on the 1st day of May, 1908, to secure, which loan he gave the Association a deed of trust on the property mentioned in the deed in question, and acknowledged same as a single person before John P. Wade, a notary public, which deed of trust was filed for record April 15, 1907; that afterwards, on May 10,1907, he gave said Association another deed of trust on said property to secure the payment of another loan
Claude S. Gossett, who was connected with the office of recorder of deeds of Jackson county, testified for the State that on April 15, 1907, the deed purporting to be from Anton Mielkey to Thomas L. Martin, and which had been recorded on April 10, 1907, was delivered by him to a woman whx> gave her name as Mrs. Lotta Martin; that about sixty days afterwards, ‘ at a preliminary hearing of some kind in Judge Remley’s court,” Mrs. Martin being present, he was asked if she was the woman who got the deed from him, and his reply was, “To the best of my judgment she was the woman that got the deed.” The witness, however, “could not say positively she was the woman.”
The evidence for the defendant tended to prove that the defendant was in St. Louis from the 16th until the 21st of April, 1907, and that his wife, Mrs. Martin, was in St. Louis from the 12th to the 22nd of April, 1907, and that she was not the woman who took the deed in question from the recorder’s office on April 15, 1907.'
J. W. McCann, a witness for defendant, testified that he was with Mielkey and the defendant in a bank building in Kansas City on April 22, 1907, at which time and place he saw Mielkey write a receipt on a small piece of paper and give it to defendant, and saw defendant give Mielkey five hundred dollars in large bills; that Mielkey and defendant talked for some time; that the former wanted to know when he could get more money, when Martin said he (Mielkey) could have a
John R. McMillan, testifying for the defendant, stated that he was at defendant’s house on the 7th, 8th or 9th of May, 1907, when Mr. Mielkey was present; that he overheard a conversation between Mielkey and the defendant, in which Mielkey said to Martin that “he had to have five hundred dollars more,” and that Martin “agreed to get it for him as soon as he could.” The witness did not know anything about the transaction, except that it was about a piece of property.
The defendant testified that he was in the grain business in Kansas City, and had been connected with Richards & Company, of Chicago, and the Benton Grain Company, and F. R. Linton. He had known Mielkey for four or five years, and since the 21st of March, 1907, Mielkey had been a visitor at his house two or three times a week. He never visited Mielkey’s home, but his wife did. That Mielkey delivered the deed in question to him in the basement of his house on the 5th, 6th or 7th of April, 1907, and that the signature to said deed was Mielkey’s signature. Defendant took the deed to the recorder’s office, and paid 85 cents to have it recorded, and had not seen the deed since then. He was to pay Mielkey $5000 for the property, upon which he intended to erect a three or four compartment flat, Mielkey to be paid his money ditring the course of the erection of said flat, fifteen hundred dollars to be paid before the first day of June; that lie paid Mielkey five hundred dollars on the 22d of April, 1907, at the Fidelity Trust Company, Mr. Mc-Cann and Mr. Allen being present when he paid said sum. The money for the payment of the purchase price of the property was to be procured from or -through a Mr. Tabibian, a loan and insurance man, and defendant had also talked to Mr. Van Landingham, of the State Life Insurance Company, and with the representative of the Corn Belt Bank. Mielkey gave
On cross-examination the defendant testified that the agreement between him and Mielkey was that he (defendant) was to erect a flat on the property at 807 Linwood boulevard,- and pay Mielkey $5000- for the property out of money he was to borrow to erect the
W. M. Burgess, testifying for the State in rebuttal, ■ stated that he was connected with the Missouri Savings Association; that about the time defendant made application for the second loan, he asked him what he had done with the money he received on the first loan, and that defendant said “he got a few drinks too many, and his wife took the money away from him.”
C. E. Kimpton, a lawyer, testified in rebuttal that he saw the defendant in the jail after his arrest, and that in a conversation had with him with reference to the deed in question defendant told him that the deed was “crooked,” and that it “was in his possession;” that he (witness) was counsel for Mielkey at the time, and that he went to see the defendant in order to get from him the deed which he believed was forged; that the defendant also told him that he would turn the deed over to him if his lawyer said so.
The State offered other evidence in rebuttal tending to show that the defendant and his wife were in Kansas City on April 16, 1907, and that defendant’s wife was at home on the 14th, 15th and 16th, of April, 1907, and left Kansas City on the afternoon of April 16th. .......
OPINION.
I.
There are no objections to the information or to the instructions of the court, and nearly all the assign
n.
It is urged by defendant that the court erred in permitting the State to introduce in evidence a certified copy of the alleged forged deed, proper grounds for the introduction of such secondary evidence not having been laid.
Needless to say, the deed itself was the best evidence, and it was incumbent upon the State to produce the best evidence obtainable. “The forged instrument must be produced and put in evidence before evidence of the forgery will be admitted at the trial, or its non-production be justified from necessity, as by. showing that it is lost or destroyed, or not within reach of the process of the court, or is in the possession of the 'defendant. And in the last instance, not in the others, reasonable notice must have been given him to produce it.” [2 Bish. New Crim. Proc., sec. 433; State v. Flanders, 118 Mo. 227.] There is no evidence that the instrument was lost or destroyed, nor is it shown that the defendant was notified to produce it. Although there was evidence tending to show,that Mrs. Lotta Martin, or a woman who gave that as her name, took the deed from the recorder’s office on April 15, 1907, it does not appear that Mrs. Martin had ever been served with a subpoena duces tecum, or that such had ever been issued. A warrant for her arrest was issued and placed in the hands of the marshal, who made two trips to her house, but failed to find her there. This, however, was about a year before the trial. No further effort had been made to find her since that time.
III.
Defendant insists that the court erred in sustaining objections to the evidence of W. S. Webb, a witness for the State, as to the signature to a certain receipt for $500 which defendant claimed Mielkey gave him at the offices of the Fidelity Trust Company on April 22, 1907. McCann, a witness for defendant, testified that on said date he saw defendant pay Mielkey five hundred (dollars and saw Mielkey give him a receipt. Defendant testified that in a civil suit growing out of the same transaction, and tried in Judge See-horn’s court, witness Webb compared the signature to this receipt with Mielkey’s signatures to a certain check and note produced at said trial. Mielkey testified that he had not seen any of said papers since they were produced in Judge Seehorn’s court, and did not know what had become of them.
This question-was asked witness Webb: “Did you compare the signature of Anton Mielkey- on this receipt to the signature of his on his notes and checks ? ’ ’ Answer, “Yes, sir.” Then this question was propounded to him: “Was the signature on this receipt written by the same man that the signature on the check and note was?” The prosecuting attorney objected to the question on the ground that it was “matter of impeachment, for which no foundation was laid,” and the court sustained the objection. Thereupon defendant’s counsel said to the court: “I desire to prove by this witness that he examined, as an expert, the receipt in
Complaint is made of the court’s action in admitting evidence tending to prove that the defendant had been arrested in Texas and brought back to Missouri for trial, there being no evidence that the defendant had fled the State for the purpose of avoiding trial.
It appears from the evidence that after defendant’s arrest on May 11, 1907, on the charge of forgery, he was admitted to bail. The sureties on his bail bond saw him frequently in Kansas City for several months afterwards. In the month of October, 1907, they were unable to locate him, and one of his bondsmen filed a charge of some sort against him in the criminal court of Jackson county, and a warrant was issued for his arrest. He was located in Houston, Texas, and a detective was sent there to arrest and bring him to this State. While in Texas, defendant wrote one of his bondsmen a letter which the former sought to have introduced in evidence, but which, upon objection of the prosecuting attorney, was excluded. Defendant was never tried on the charge pending against him in said criminal court, and it was never set for hearing. He testified that he had endeavored to have the case tried and disposed of, and that the assistant prosecuting attorney informed him more than three times that the case would be called and dismissed. The record shows that on June 28, 1907, the case at bar, on application of the defendant, was continued to the next succeeding term, begun on the first Monday in January, 1908, the same being the sixth day of said month. If the object of defendant’s arrest and extradition in November, 1907, was to compel his attendance at the trial of this ease, certainly the arrest was premature, the case having been continued until the January term. He had been admitted to bail, and was free to go where he chose in the interim. It appears from the record that the case was continued several times, and the evidence is that the defendant was present
It is quite clear that' all this evidence about the defendant’s arrest and extradition was incompetent, and was bound to prejudice his case before the jury. The prosecuting attorney, in the-hearing of the jury, said, “I want to show that he [defendant] had to be extradited and brought back for trial,” and he certainly did endeavor to prove that such was the fact. “While, at the instance of defendant, the court instructed the jury that the evidence as to defendant’s arrest in the State of Texas raised no presumption as to his guilt, and that they should disregard it in making up their verdict, we are far from believing that said instruction cured the error. It has been frequently ruled by this court that an instruction to disregard evidence improperly admitted in a criminal cáse will not cure the error of admitting it, if it was of a character prejudicial to the defendant. [State v. Mix, 15 Mo. 153; State v. Hopper, 71 Mo. 425; State v. Fredericks, 85 Mo. 145; State v. Ruehner, 93 Mo. 193; State v. Thomas, 99 Mo. 235; State v. Spivey, 191 Mo. 87; State v. Minor, 193 Mo. 597.] As said in the Minor case, supra, “the greatest care should be taken by court and counsel to prevent the introduction of illegal evidence, since, when it is once lodged in the minds of the jury, no one can tell its effect.”
Defendant also complains of thq court’s action in permitting counsel for the State, over defendant’s objection, to ask defendant if he had not taken a change of venue in this case. We think such question was highly improper and prejudicial. The matter of defendant’s taking a change of venue was not for the consideration of the jury, and the question could have no effect other than to create in the minds of the jury an impression inimical to the defendant. [McDonald & Co. v. Cash, 45 Mo. App. 66; Wall v. State, 62 S. W. 1062.]
A careful reading of the bill of exceptions in this case forces the conclusion that the rules of evidence were by no means strictly observed by the prosecution. As life, liberty and reputation are of more value than property, the rules of evidence should be more carefully observed in criminal than in civil cases. The conviction and punishment of a person unfortunate enough to be charged with crime should only follow a fair and impartial trial, and after his guilt is established beyond all reasonable doubt.
We have considered only the more important points made by the defendant. The objections to the evidence and the exceptions to the rulings of the court thereon are so numerous as to preclude consideration of them all.
For the errors pointed out the judgment is reversed and the cause remanded for new trial.