269 Mo. 681 | Mo. | 1917
The appellant was convicted of forgery at the April term, 1916, of the circuit court of Dent County. The information upon which he was tried is in two counts. The first charges him, under section 4651, Revised Statutes 1909, with the forgery of a certain promissory note purporting to be made by G. E. Pace, J. A. Pace and Willis Pace, which note was payable to the Holland Piano Manufacturing Company. The second count charges the appellant, under section 4654, with having the same forged instrument in his custody and possession with intent to utter it.
It appears that the father and brother had signed the original notes and in fact had been accustomed to sign notes for the defendant at various times while he had been in business. Each of them states in his testimony that he had never refused to sign a note for the defendant when requested.
The father, Willis Pace, testified that he had no recollection of signing the note in question and thinks that he did not. He admitted on cross-examination, however, that he might have signed it. He admitted saying to an attorney who brought the note,to him for collection that he might have signed it. It is conceded that the brother of the defendant, J. A. Pace, did not sign- the note, but the defendant claimed that J. A. Pace gave him authority to sign the latter’s name to the note, he being too busy at the time to come to the defendant’s place of business for the purpose. J. A. Pace denied giving any such authority. The defendant asserts very stoutly in his testimonial that his father did sign the note. Testimony was offered by the State to show that the signature attached to the note, purporting to be that of Willis Pace, was not in fact his signature. The evidence further shows, in support of the second court of the information, that the note alleged to be forged was by defendant taken for the purpose of delivery to the Holland Piano Manufacturing Company in renewal of the former unpaid note, and was so delivered.
In the progress of the trial a witness, W. W. Young, a bank cashier, was shown a note marked “Exhibit C,” purporting to be signed by Willis Pace, and stated that
Upon the issues thus presented the jury returned the following verdict:
“We the jury, find the defendant guilty of forgery in the third degree, as charged in the information, and we assess his punishment at imprisonment in the State Penitentiary for the term of two years.”
I. It is claimed by the defendant that the general verdict, because it did not designate on which count the defendant was found guilty, was a reversible error.
On the other hand, the rule is well established that a general verdict where the several counts of the indictment charge several distinct crimes will not be upheld. Such is the case where several different larcenies were charged in the different counts of the indictment. [State v. Harmon, 106 Mo. 635.]
Another class of cases cited by respondent are those where the different counts of the indictment did not charge in different forms the same offense, nor yet charge offenses arising out of .entirely different transactions, but where, the several acts grew out of the same transaction and that charged in one count was in the nature of a corollary to the original offense charged in another count. In such cases the question as to whether distinct offenses were charged in the several counts usually arose on a motion to compel the State to elect on which count it would proceed to trial. This on the theory that a defendant could not be tried at the same time and in the same trial for two different and distinct crimes. [State v. Testerman, 68 Mo. 408; State v. Daubert, 42 Mo. 242.] The last is. a leading case, and often cited in later decisions. It was held in that case, where the indictment contained two counts, one for forgery and. the other for uttering the forged instrument, that it was not error to overrule a motion to elect. This, however, could not be a test as to whether a general verdict in such a case would be proper, because in all such eases, it is held to be discretionary with the trial court whether such a
The precise question presented here was decided by this court in the case of State v. Pierce, 136 Mo. 34. There the defendant was charged in the first count with forging an instrument, and in the second count with uttering the forged instrument, and it was held a general verdict of guilty was reversible error. Such a verdict lacks the precision and certainty‘which is necessary to its validity. That case has been cited without criticism, and usually with approval, in the following cases, and perhaps others. [State v. DeWitt, 186 Mo. l. c. 67; State v. Standley, 232 Mo. 23, l. c. 27; State v. Miller, 255 Mo. 223, l. c. 231; State v. Burke, 151 Mo. 136, l. c. 146.]
The general verdict, therefore, of guilty, without designating which of the two different and distinct offenses of which the defendant was found guilty, is error for which the cause must be reversed.
Waiving the question as to whether the objection to its admission on other grounds was sufficiently specific, no reason appears for its exclusion.
Under the rule at common law, any writing irrelevant to the record was inadmissible when offered for the sole purpose of furnishing a comparison with a writing alleged to be forged. The rule as adopte'1 'n Missouri is stated thus:. Such papers, containing the alleged genuine writing of the party whose signature is claimed to be forged, can only be offered in evidence to the jury when no collateral issue can be raised concerning them, that is, when the papers are-either conceded to be genuine, or the circumstances are such as the other party is estopped to deny them. That is to say, such papers should not be admitted in evidence where it would be an issue for the jury to determine whether the alleged genuine signature was iñ fact genuine. [State v. Clinton, 67 Mo. 380, l.0 c. 385; State v. Minton, 116 Mo. 605, l. c. 614; Greer v. Lumber and Mining Co., 134 Mo. 85, l. c. 96.] This rule has been modified by a statute, giving more liberty for the introduction of such writings for comparison. Section 6382, Revised Statute 1909, is as follows:
“Comparison of a disputed writing with any writing proved to-the satisfaction of the judge to be genuine shall be permitb d to be made by witnesses, and such writings and the evidence of witnesses respecting the same may be submitted to the court and jury as evidence of the genuineness or otherwise of the writing in dispute. ’ ’
Several cases have come before this court where the question has arisen since the enactment of that statute.. [Sanders v. North End Building & Loan Assn., 178 Mo. 674, l. c. 680; State v. Thompson, 141 Mo. 408; State v. Stark, 202 Mo. 210, l. c. 221.] In none of them, however, did the court define the limits of the admissibility of such
The judgment is reversed and the cause remanded.
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The foregoing opinion of White, C., is adopted as the opinion of the court.