Opinion
No. 42315.
May 14, 1951.
APPEAL FROM THE CIRCUIT COURT, WEBSTER COUNTY, JAMES P. HAWKINS, J.
John M. Bragg, Ava, for appellant.
J. E. Taylor, Atty. Gen., D. D. Guffey, Asst. Atty. Gen., for respondent.
Roy E. Lamb has been found guilty and sentenced to two years' imprisonment for knowingly uttering and passing a forged check. Mo.R.S. 1949, Sec. 561.250. There are no errors upon the record proper, State v. Redding, Mo.Sup., 239 S.W.2d 494, and we consider the reviewable questions presented by his motion for a new trial. Mo.R.S. 1949, Secs. 547.030, 547.270; State v. Jones, Mo.Sup., 227 S.W.2d 713, 716. The assignment that "the court erred in not instructing the jury on all the law in the case" does not point out any particular subject upon which the court failed to instruct (the court gave eight conventional instructions) and is so general that it does not present a reviewable question. State v. Chissell, 245 Mo. 549, 555, 150 S.W. 1066, 1068, an uttering a forged check case. The assignment that "the court erred in announcing for the defendant that he was ready for trial" must concern some matter occurring in the preliminary stages or at the outset of the trial, but whatever it was it is not set forth in the record and there was no objection whatever except belatedly in the motion for a new trial. State v. Boone, Mo.Sup., 289 S.W. 575, 577.
At the outset of the trial defendant's counsel announced that he "would like to make a record." Thereupon he orally moved the court to quash the jury panel "for the reason that upon the reading of the information, and the arraignment of the defendant, the jury was permitted to remain in the Court Room within the hearing of the reading of the information, and was permitted to hear the defendant's refusal to plead thereto." In his motion for a new trial it is urged that the court erred in not quashing the jury panel because the panel was permitted to hear the reading of the information. Again the question arose in the preliminary stages of the trial rather than after the trial panel had been selected and it does not appear just what occurred or that there was timely objection. After the panel has been selected it is the better practice to not read the information to the jury, State v. Gilmore, 336 Mo. 784, 81 S.W.2d 431, but here the information was not read as evidence, State v. Hart, 66 Mo. 208, and there was a specific instruction that the information "is a mere formal statement of the accusation or charge against the defendant and is no evidence whatever of his guilt." In these circumstances it is not demonstrable from the record made that it was prejudicial error for the prosecuting attorney to read the information to the defendant in the presence of the panel upon his arraignment. State v. Trice, 338 Mo. 744, 92 S.W.2d 135.
The jury could reasonably find from the state's evidence that on June 4, 1949 the defendant went to Bay's Shoe Store in Seymour and purchased a pair of shoes. He took the first and only shoes Calvin Pierce showed him and as Pierce wrapped the shoes Roy asked if he would take a check. Pierce said he would if the check was good. Roy said that the check was good, "that he was only about four miles from Seymour and I could find him there." Pierce deducted the price of the shoes and gave Roy the balance in cash. The check was in the sum of $19.61, "for lumber." It was signed "Everett Clark," payable to "Johnnie Burton" and endorsed "Johnnie Burton." Pierce did not know the defendant and could not remember whether he endorsed the check in his presence. When the check was presented on the following Monday the bank refused to pay it. Mr. Everett Clark who lived near Seymour testified that he did not sign the check or authorize anyone else to sign his name to it. Five or six months later Pierce identified Roy in the Douglas County jail as the person who bought the shoes and gave him the check. Roy lived on a farm with his father in Douglas County. Wilbur Snook testified that he and Ray Himar and Roy went to Seymour in Roy's truck in June 1949. Roy and Wilbur filled out several checks and after selecting Mr. Clark's name from the telephone directory signed his name to them. They left the checks in the glove compartment of Roy's truck. They separated during the afternoon and when they left town together there was a new pair of shoes in the truck. Roy admits being in Seymour with Ray but he could not remember whether Snook was with them. He stated that he never saw the check and denied that he bought shoes from Pierce. These circumstances, as the jury reasonably found them, are certainly sufficient to support the finding and charge of intentionally uttering and passing a forged instrument. State v. Chissell, supra; State v. Dobbins, 351 Mo. 796, 174 S.W.2d 171.
Accordingly the judgment is affirmed.
WESTHUES and BOHLING, CC., concur.
The foregoing opinion by BARRETT, C., is adopted as the opinion of the Court.
All concur.