State v. Hathhorn , 166 Mo. 229 ( 1901 )

SHERWOOD, P. J.

The prosecution in this cause was bottomed on section 3611, ReAÚsed Statutes 1889, noAv section 2012, ReAdsed Statutes 1899, which reads in this. Avay:

“Every person who shall have in his possession, buy or receive any falsely made, altered, forged or counterfeit instrument or writing, the forgery of which is hereinbefore declared to be an offense, except such as are enumerated in section 3633, knowing the same to be forged, counterfeited or falsely made or altered, with intent to injure or defraud, by uttering the same as true or false, or causing the same to be so uttered, shall upon conviction be adjudged guilty of forgery in the fourth degree.”

The indictment, omitting the deed, acknowledgment, etc., is the following: “The grand jurors of the State of Missouri, within and for the county of Cole, now here in court, duly impaneled, sworn and charged, upon their oath, present that David L. Hathhorn, on or about the thirteenth day of July, 1897, at the county of Cole aforesaid, knowingly, unlawfully and feloniously, had in his custody and possession a certain false, counterfeited and forged instrument of writing and printing purporting to be a deed of conveyance of real estate situate in Cole county, Missouri, and described as the northwest quarter of section thirty-six (36) and the west half of the northeast quarter section thirty-six (36), township forty-five (45), range fourteen (14); also the south part of the southwest quarter of the southeast quarter section twenty-five (25) and the south part of the southeast quarter of the southwest quarter section twenty-five (25); also a piece of land in the southeast corner of the southwest quarter of the southwest quarter section twenty-five (25), beginning at the southwest corner of D. L. Hathhorn land and then running due south until it intersects thé section line between section (25) and (36), all in township forty-five (45), range fourteen (14), containing in all about three hundred and five acres, from Vm. S. Freshour to Myra Jane Hathhorn, and purporting to be made by the said ¥m. S. Ereshour, and to be his act and deed, and which said forged and counterfeit written and printed instrument, to-wit, a deed from the said ¥m. S. Freshour to the said Myra Jane Hathhorn for the land aforesaid, was then and there in words and figures, writing and printing, as follows, to-wit: .... And which said deed and instrument of writing so purporting to be the act and deed of the said Wm. S. Ereshour purported and pretended to convey the land aforesaid to the said Myra Jane Hathhorn he, the said Wm. S. Ereshour, being then and there the owner of and in possession of and having an interest in the real estate and lands aforesaid, and by which said false and forged instrument and deed so as aforesaid, made, counterfeited and forged, the said real estate purported to be transferred from the said Wm. S. Ereshour to the said Myra Jane Hathhorn, 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 David L. Hathhorn 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, altered, 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, against the peace and dignity of the State.”

The original indictment, now before us, plainly shows the figure 1 superimposed upon the figure 8 in the date mentioned in the above indictment. Whether this change occurred in the last figure in the date, prior to the time the indictment was presented by the grand jury, and filed by the clerk, or subsequently thereto, is one of the contentions in this case, which will be adverted to later on.

The indictment, aside from the alleged alteration, is well enough; no objection to it is discovered. And with respect to the indictment not noting the exceptions contained in section 2001, this noting was unnecessary, because an examination of that section in connection with the indictment, clearly shows that the instrument mentioned therein, is not one of those specified in said section and, therefore, necessarily excepted out of section 2012.

As to the evidence, it is needless to incumber this opinion with it, as it will, in substance and effect, accompany the report of this cause. That evidence, however, adverting to it now but for a moment, seems to preponderate in favor of the view that the indictment was altered, after filing, in the respect heretofore noted, and the evidence seems to preponderate in favor of the view, also, that the deed purporting to be from Win. S. Freshour to Myra Jane Hathhorn, was forged. And if that deed was forged by defendant, or if it was forged by some one else and delivered to and retained by him, in his possession for several months prior to Freshour’s death, which fact of mere retention is shown by defendant’s own testimony; and such retention was done or had by defendant with knowledge of the forgery, then the question of the intent on defendant’s part “to injure or defraud” etc., would seem to be set at rest. Because the forging of the deed and subsequent retention of it, or subsequent retention of it with knowledge that it was forged, is altogether inconsistent with any honest purpose. Under the quoted section, it is not necessary that there should be any actual uttering. The having the possession of a forged instrument in the circumstances above stated, and with the intent aforesaid, causes the statute to be violated, and its penalty to fall on the party guilty of such violation.

The punishment for forgery in the fourth degree, is imprisonment in the penitentiary, not exceeding five years, or imprisonment in the county jail for not less than six months. The jury inflicted the latter, the lightest and lowest punishment in this case.

But it would seem from the evidence adduced, that if forgery of the deed occurred, in either of the ways heretofore mentioned, then the act of uttering such forged instrument was complete; and if so,' such act could have been punished under the provisions of section 3646, Revised Statutes 1889 (now section 2014, Revised Statutes 1899), which section is as follows:

“Every person who, with intent to defraud, shall pass, utter or publish, or offer or attempt to pass, utter or publish as true, any forged, counterfeited or falsely altered instrument or writing, or any counterfeit or any imitation of any gold or silver coin, the altering, forging or counterfeiting of which is hereinbefore declared to be an offense, knowing such instrument, writing or coin to be altered, forged or counterfeited, shall, upon conviction, be adjudged guilty of forgery in the same degree as hereinbefore declared for the forging, altering or counterfeiting the instrument, writing or coin so passed, uttered or published, or offered or attempted to be passed, uttered or published.”

Whether a party accused, prosecuted and shown to be guilty under section 2012, and also guilty under section 2014, by reason of uttering, could be punished, also, under the latter section, or whether the former offense would be merged in the latter, is a point not raised in the lower court, nor in this court, and is therefore presented in the form of a query, and not as an adjudication.

Error occurred in admitting as evidence, and in evidence, testimony of Judge Sommers, the probate judge of Cole county, in regard to the mutual altercations between Letts and defendant in the probate office, as to whether the deed to Mrs. Hathhorn was a forgery, as affirmed by Letts, or whether genuine, as affirmed by defendant. Such testimony of Judge Sommers was indubitably hearsay, since it was simply but a sworn statement of an unsworn statement. [Whart. Crim. Evid. (9 Ed.), sec. 223; 1 Whart. Evid. (3 Ed.), secs. 172, 173; 1 Glf. Evid. (14 Ed.), sec. 98; State v. Huff, 161 Mo. loc. cit. 488, 489.]

And when evidence is incompetent for any purpose, what.ever, a general objection suffices. [State v. Meyers, 99 Mo. 107, and many i subseq. cas.]

Under the same head of hearsay may be placed the testimony of Moritz Schreiber, in relation to what defendant said about the rent of the land mentioned in the litigated deed belonging to his wife. And in the same category may be classed the notice which Schreiber states defendant caused the constable to serve on Schreiber, which was a notice to the latter to quit possession of the land in dispute, and was given in the name of Mrs. Hathhorn through her attorneys. Nor could the fact that defendant asserted that the land was his wife’s, be made to operate retroactively, and thus show that prior to that time, he had the deed in his possession with a fraudulent intent; since the doctrine of relation does not apply in criminal prosecutions.

To the same classification belongs the testimony of Letts about Freshour, during his last sickness (which lasted it seems some seven months), having a new trunk bought in St. Louis by defendant, and his (Freshour’s) valuable papers transferred from the old trunk to the new, notes, deeds of trust, certificates of deposit, etc.; sorting them out, and stating to Letts the defendant that the papers in the new trunk were all the papers that they, as executors, would need in administering the estate. And that nothing was said during these conversations, by either Judge Freshour or defendant about the disputed deed being in existence, or about any papers being anywhere else, only those in the new trunk; and that these conversations between Judge Freshour, Letts and defendant, continued in relation to said estate matters, down to within about a month of the time when Judge Freshour died, which occurred July 2, 1897.

Error also occurred in permitting defendant to be cross-examined as to matters not testified to by him in his examination in chief. Thus, it was permitted the State to cross-examine defendant as to whether he had, prior to the time he took Judge Ereshour’s acknowledgment to the deed to Mrs. Hathhorn, ever taken the acknowledgment of Judge Er'esliour to a deed to land of any kind. No testimony on that point had been elicited from defendant.

And for the like reason, defendant should not have been cross-examined as to whether defendant had ever before that túne taken the acknowledgment of a deed of Judge Ereshour’s to which his wife, Mrs. Ereshour, was not a party.

Under the provisions of the Act of 1877, a defendant who took the stand as a witness, could be cross-examined as any other witness. [State v. Clinton, 67 Mo. 380; State v. Cox, 67 Mo. 392; State v. Rugan, 68 Mo. 214; State v. Testerman, 68 Mo. 408.] But since those rulings were made the Legislature, by section 1918 (Revised Statutes 1879) now sections 2637, 2638, Revised Statutes 1899, so amended the law as to confine the cross-examination of a defendant witness, “as to any matter referred to in his examination in chief.” This amendatory clause has been frequently ruled upon by this court, and when its behests have been disobeyed, a reversal of the judgment has been the invariable result. [State v. McGraw, 74 Mo. 573; State v. Turner, 76 Mo. 350; State v. McLaughlin, 76 Mo. 320; State v. Porter, 75 Mo. 171; State v. Douglass, 81 Mo. 231; State v. Patterson, 88 Mo. 88; State v. Chamberlain, 89 Mo. 129; State v. Graves, 95 Mo. loc. cit. 516; State v. Hudspeth, 150 Mo. loc. cit. 31.]

In State v. Brooks, 92 Mo. 542, this statute on the point mentioned, was disobeyed; but the ruling in that case, is not in accord with the other cases cited, and should no longer be followed.

Attention will now be directed to the instructions, of which, speaking generally, those for the State are in usual form; but an instruction was refused defendant, and of this refusal it is proper to speak, as no instruction, embodying the same theory, was given on the side of the State. The refused instruction related, in effect, to the absence of motive of defendant to do the crime with which he was charged.

There is no doubt that motive prompting to the commission of a crime is admissible in evidence, on behalf of the State in order to warrant a conviction; and want of motive is equally available on the part of the accused to countervail the idea of the guilt of the prisoner; but though no motive be established by the State, still a conviction may follow, if the offense be otherwise made out. [1 McLain Crim. Law, sec. 416; State v. David, 131 Mo. 380; State v. Foley, 144 Mo. 600.] This being the case, it was entirely competent for defendant to ask the following instruction:

“10. The jury are instructed that this is an indictment against D. L. Hathhorn, and the instrument alleged to have been forged in this case is executed in the name of Myra J. Hathhorn, and there is no evidence before the jury that this defendant had any interest whatever in said land mentioned and described in the indictment or in the deed alleged to have been forged by him, and under the law of this State said defendant could not have and has not any interest in said real estate mentioned in the indictment.”

Or if not in all respects thought to be correct, one similar in thought and structure should have been given by the court, as the instruction refused carries the proper idea. Since the law of 1889 went into effect, a husband has neither right, title nor interest in the real estate of his wife, and interest is the chief mainspring of motive. The refusal, as above stated, therefore constitutes reversible error, since interest of some sort is the usual mainspring of motive.

An instruction given for the State is the following:

“4. You are further instructed that if you find from the evidence that the deed in question purporting to have been made by Wm. S. Freshour to Myra Jane Hathhorn, as introduced in evidence, is not in fact the deed of the said William S. Freshour, but a forgery, then the possession of said forged instrument, if unexplained by tbe defendant, is evidence to be considered by you as tending to prove that defendant had the same in his possession with knowledge of its false character and for an unlawful purpose.”

This instruction requires defendant to explain away his supposed guilt, thus nullifying his presumptive innocence. Further comment on such an instruction is unnecessary.

The last point to be touched upon is the alteration of the indictment. That such change did occur, whether at the moment the indictment was being typewritten, or subsequent thereto, is obvious on the face of the indictment, the original of which is before us. • The preponderance of the evidence, as before stated seems to show the alteration in the indictment occurred after it had become one of the files of the court. If the indictment was altered after it became a record of the court, then on a motion to quash or a suggestion of a similar nature, evidence in support of such motion may be introduced to show such alteration. [1 Bishop New. Crim. Proc., sec. 763, and cas. cit.] And when matters are in such posture, then the court is to determine the question of alteration vel non. [Com. v. Davis, 11 Gray 4.] And to submit such question to the jury for their finding, constitutes ground for exception. [Ibid.]

But a determination by the court that no alteration had occurred would not become final so as to prevent a reinvestigation of the same facts when offered again, in evidence upon the Occurrence of a new trial granted.

For the errors aforesaid, judgment reversed and cause remanded.

All concur.