Summary
In State v. Arnett, 338 Mo. 907, 92 S.W.2d 897, at page 901, the court considered very similar assignments, and said: "These assignments are insufficient to raise any question for our review.
Summary of this case from State v. TebbeOpinion
March 21, 1936.
1. INDICTMENTS AND INFORMATION: Forgery. An indictment charging that defendant, as cashier of a bank, willfully, unlawfully and feloniously, with intent to defraud the bank, made certain false and fraudulent entries of deposits on a depositor's passbook, setting forth the entries, sufficiently charges forgery under Section 4192, Revised Statutes 1929.
In such case an instruction requiring the jury to find before conviction that the entries were false and were made with felonious intent to defraud, was not erroneous on the ground that it did not require the jury to find that the deposits were not in fact made.
2. CRIMINAL LAW: Trials: Opening Statement of Prosecutor. Under Section 3681, Revised Statutes 1929, allowing an opening statement by the prosecuting attorney, such statement may be lawfully made by the Assistant Attorney General as aiding in the prosecution.
3. CRIMINAL LAW: Assignments of Error. Where the defendant in his motion for a new trial assigned error to the admission of certain evidence and the overruling of defendant's motion to strike out the same without assigning any reason why the evidence was incompetent, presents nothing before the Supreme Court on appeal for review.
4. TRIALS: Circumstantial Evidence. Where, on the trial of defendant for a felony, the case partially depends upon the circumstantial evidence it is proper, but not mandatory, to instruct on circumstantial evidence.
5. CRIMINAL LAW: Trials: Instruction Assuming a Fact. On a trial of defendant, cashier of a bank, for making false entries in a customer's passbook, an instruction authorizing a verdict of guilty on the finding that the defendant made the entries with intent to defraud, an assumption in such instruction that such false entries were in fact made, was harmless where defendant admitted that such entries were made by him.
6. FORGERY: Trials: Intent: Other Offenses. On the trial of defendant, cashier of a bank, for forgery in making false entries in the passbook of a customer of the bank, evidence to show that the defendant made entries in other passbooks which did not correspond with the records in the bank was competent as showing his intent.
7. CRIMINAL LAW: Trials: Intent: Reasonable Doubt. On the trial of defendant cashier for making false entries in the passbook of a customer of the bank, an instruction directing the jury to find for defendant although such entries were false if not made with intent to defraud the customer, was not insufficient in omitting to require the State to prove appellant guilty beyond a reasonable doubt, where other instructions on the burden of proof told the jury that the defendant was presumed to be innocent until proven guilty beyond a reasonable doubt and that the burden to make such proof was upon the State.
An instruction defining reasonable doubt authorizing acquittal as "a substantial doubt touching the defendant's guilt, and not a mere possibility of his innocence," is correct.
8. CRIMINAL LAW: Trials: Credibility of Witnesses. An instruction telling the jury that if any witness had willfully sworn falsely to any material fact the jury could disregard the whole or any part of that witnesses' testimony, was not erroneous in that it could have been applied to no other witness than the defendant, where defendant attempted to impeach the evidence of a number of witnesses and no attempt was made to impeach the testimony of defendant.
9. CRIMINAL LAW: Forgery: Trials: Submissible Case. On the trial of defendant, cashier of a bank, for forgery in making false entries in the passbook of a customer, it was not necessary in order to convict that the jury should find that the bank was actually defrauded; it was sufficient if the entries were made with the intent to defraud.
The fact that the defendant did not make the same entries in the bank books as in the customer's passbook was evidence from which an evil intent could be inferred.
The jury in such case was not bound to believe the explanation of defendant that he had no intention to defraud the bank.
The passbook comes within the terms of the statute as a book intended to be delivered, and it created an obligation on the bank. [Sec. 4192, R.S. 1929.]
10. CRIMINAL LAW: Trials: Argument of Counsel. Where the record shows that on the trial of defendant objections made to the argument of the prosecutor and to the opening statement were sustained by the court, there was nothing in such argument upon which to base an error.
11. JURORS: Passion and Prejudice: Judicial Notice. The Supreme Court on appeal cannot take judicial notice of the existence of an antagonistic feeling against the defendant at the time of the trial.
Where defendant made no application for a change of venue against the inhabitants of the county, and on his request a special judge was called to try the case, there is nothing in the record to indicate prejudice against defendant.
Assertions of such prejudice in a motion for a new trial do not prove themselves.
A verdict assessing defendant's punishment for forgery at four years in the penitentiary, the punishment standing alone, does not show prejudice on the part of the jury.
The punishment to be inflicted in criminal cases is primarily a matter for the jury and the trial courts.
12. CRIMINAL LAW: Jurors: Prejudice. Statements made by a juror after the trial indicating prejudice against the convicted defendant do not authorize the granting of a new trial where there was no showing that the juror before the trial had formed or expressed an opinion with reference to the case.
In such case the juror having been accepted without being questioned by defendant, defendant is in no position to complain after verdict.
Where defendant was convicted of forgery in making false entries in the passbook of a customer of the bank of which he was cashier, and where jurors were shown to have made remarks after the bank was closed and before defendant was indicted indicating doubt of the solvency of the bank, and statements to the effect that certain money was lost in the bank, and where the record fails to show that defendant questioned those jurors on voir dire examination, their qualification cannot be questioned on appeal.
13. CRIMINAL LAW: Jurors: Separation. The mere physical separation of the jury for sleeping purposes in cases of necessity or for better accommodation does not violate a statute forbidding their separation, provided they remain in the custody of the officer in charge of them.
Where the jury in a felony trial were taken to a rooming house for the night and were the only persons who stayed there, with a deputy sheriff, and eleven of the jurors occupied rooms upstairs and the officer with one juror occupied one room downstairs, and the evidence showed that the jury did not communicate with any other persons than the deputy sheriff in charge and the members of the jury, it did not show an opportunity for outside communication or misconduct.
14. CRIMINAL LAW: Excessive Punishment. Where defendant was convicted of forgery and his punishment assessed at four years in the penitentiary, and the record shows that he was represented by able counsel, the rulings of the court were fair on disputed questions and the verdict supported by substantial evidence, the question of his guilt or innocence was for the jury.
Appeal from Crawford Circuit Court. — Hon. Will H.D. Green, Special Judge.
JUDGMENT AFFIRMED.
John P. Moberly and Phil M. Donnelly for appellant.
(1) The indictment is defective in that it fails to charge that the deposits represented by the alleged book entries were not actually made. State v. Zingher, 302 Mo. 657; State v. Strack, 316 Mo. 596. This rule is the same as in perjury and false pretense. State v. Strack, 316 Mo. 595. The rule as applied in false pretense. State v. Peacock, 31 Mo. 413; State v. Phelan, 159 Mo. 127; State v. Young, 266 Mo. 731; 11 R.C.L. 859. Although the evidence may be sufficient to show the commission of a crime, yet the omission of an element from the indictment is reversible error. State v. Plotner, 283 Mo. 95. (2) The prosecuting attorney should have made the opening statement. State v. Price, 111 Mo. App. 425; Thalhein v. State, 38 Fla. 169; Gilbert v. People, 121 Ill. App. 423; Burkhead v. State, 18 Tex. App. 599[ 18 Tex.Crim. 599]. The statement by the Assistant Attorney General that the defendant had extracted notes from the assets of the bank was entirely out of place and warrants a reversal. 2 R.C.L. 410. (3) The demurrer to the evidence should have been sustained. There was no evidence of any intent to defraud and nobody was defrauded. R.S. 1929, sec. 4192. A false entry in corporate books to deceive someone with no purpose of profit contemplated or possible is not forgery. Peo. v. Hegeman, 107 N.Y.S. 261; 26 C.J. 920. The interest on the Keyes notes was not collected nor credited on the notes. In fact, it appears the prospect of collecting on the notes is better than from the bank, because they are secured and the deposits are not. (4) The so-called passbook of Mr. and Mrs. H.M. Keyes was not a "book of accounts kept by" the bank. To be such it must have been a book in which original entries were made in the usual course of business at or about the time the business was transacted. 10 R.C.L., pp. 1179, 1182; Anchor Milling Co. v. Walsh, 108 Mo. 277; Stephen v. Metzger, 95 Mo. App. 621. (5) The Schwieder passbook and ledger sheets were admitted and by Instruction 5 the court told the jury that they contained evidence of a fraudulent intent sufficient for them to consider. The only evidence they contain tends to show a conflict between them. No evidence of fraud intended or perpetrated. The law of proving other crimes is extensively discussed in the following cases: State v. Myers, 82 Mo. 558; State v. Patterson, 271 Mo. 109; State v. Plotner, 283 Mo. 96. (6) This court will take judicial notice that the penalty usually fixed by juries for grand larceny is two years in the penitentiary. In this case the penalty assessed is four years, although nobody lost a penny. This leads us to look closely for a cause. State v. Ferguson, 152 Mo. 99; State v. King, 174 Mo. 660; State v. Wigger, 196 Mo. 100; State v. Wellman, 253 Mo. 318; State v. McBrien, 265 Mo. 612; State v. Hess, 240 Mo. 160; State v. Jackson, 83 S.W.2d 94; L.R.A. 1918D, 12, 24, 79. (7) Juror John H. Slovensky lost money in the bank and from his conversation with witness Moutray he carried that thought into the jury box. This violated the spirit of the law. R.S. 1929, sec. 3668. (8) The jurors, after the case had been finally submitted, were allowed to separate without leave of the court and in violation of the statute. At one time four of them were in one room playing cards, while the others were in the second room away, where there were people not on the jury, and the room between was occupied by several persons. At another time eleven of them slept upstairs in the McInnis home, accessible by a stairway to an outside door, while the deputy sheriff slept downstairs with the other juror. R.S. 1929, sec. 3734; State v. Asbury, 327 Mo. 182; State v. Orrick, 106 Mo. 126; State v. Howland, 119 Mo. 419; 16 R.C.L. 309.
Roy McKittrick, Attorney General, and Covell R. Hewitt, Assistant Attorney General, for respondent.
(1) The indictment in this case is sufficient and charges every essential element of the crime. Sec. 4192, R.S. 1929; State v. Morro, 280 S.W. 697; State v. Plotner, 222 S.W. 767. (a) The verdict is in the approved form, responsive to the issues and is within the limitations prescribed by the statute, and defendant was duly sentenced with the verdict. Sec. 4205, R.S. 1929. (2) This assignment of error is too general and insufficient to preserve anything for review. Sec. 3735, R.S. 1929; State v. Carroll, 62 S.W.2d 863; State v. Francis, 62 S.W.2d 552; State v. Williams, 292 S.W. 20. (3) Demurrer offered at the close of State's case was properly overruled. Where appellant offers evidence he waives demurrer offered at close of State's case. State v. Starling, 207 S.W. 768; State v. Hembree, 295 Mo. 9; State v. Mann, 217 S.W. 69. (4) The passbook in which the alleged false entries were entered and the loose-leaf ledger sheets were properly introduced and received in evidence. State v. Plotner, 222 S.W. 771. However this assignment is too general. Sec. 3735, supra; State v. Jetts, 300 S.W. 754; State v. Ross, 300 S.W. 786; State v. Murrell, 289 S.W. 859; State v. Copeland, 71 S.W.2d 751. (5) The court did not err and it was proper to give Instruction 5 on the question of intent shown by similar transactions. State v. Morro, 280 S.W. 701; State v. Samis, 296 Mo. 486. (6) The giving of Instruction 9 on "credibility of the witnesses" was not error. State v. Lewis, 20 S.W.2d 529; State v. Hart, 56 S.W.2d 594; Sec. 3681, R.S. 1929; State v. Sanders, 4 S.W.2d 816. (7) Instruction 10 on "reasonable doubt" is in the usual form. State v. Neuslein, 25 Mo. 124; State v. Christian, 253 Mo. 397; State v. Ross, 300 S.W. 786; State v. Lyle, 296 Mo. 437. (8) There is no evidence of separation of the jury after submission. Sec. 3734, R.S. 1929; State v. Noland, 111 Mo. 505; Sec. 3686, R.S. 1929; State v. Shawley, 67 S.W.2d 88. (9) There is no evidence to sustain this alleged error. Voir dire examination of jurors not shown in bill of exceptions. Motion for new trial does not prove itself. State v. Rasco, 239 Mo. 586; State v. Coleman, 264 Mo. 435. (10) Allegations in motions for new trial do not prove themselves. State v. Parker, 24 S.W.2d 1026; State v. Walker, 232 Mo. 252; State v. Harmon, 296 S.W. 391; State v. Stogsdill, 23 S.W.2d 22, 324 Mo. 105; State v. Yowell, 55 S.W.2d 991, 331 Mo. 716.
On October 26, 1933, an indictment was filed in the Circuit Court of Crawford County, Missouri, charging appellant with the crime of forgery in the third degree, as defined in Section 4192, Revised Statutes 1929 (Mo. Stat. Ann., p. 2945). The particular charge was that appellant, as cashier of the Crawford County Farmers' Bank, had, with intent to defraud the bank, made five false entries in a book of account, commonly called a depositor's passbook. The total amount of these items was $422.40, and the items on their face showed that Mr. and Mrs. H.M. Keyes had deposited that sum in the bank. Upon a trial appellant was convicted and sentenced to four years' imprisonment in the penitentiary. From this sentence he appealed.
The evidence disclosed the following state of facts: Appellant had for many years been cashier of the Crawford County Farmers' Bank, located at Steelville. Mr. and Mrs. Keyes lived in the State of Illinois. Keyes had money invested, represented by notes and mortgages signed by persons living in Crawford County. Keyes had authorized appellant to collect whatever was due on these notes, either principal or interest, and to reinvest the proceeds thereof for Keyes. Appellant had, by virtue of his agency, handled Keyes' financial business in Crawford County for about ten years. Keyes was given a passbook in which was entered the amounts of cash appellant had collected and deposited in the bank. This passbook was sent to the bank at various times to be balanced. During the month of August, 1932, appellant made the following entries in the passbook of Keyes, which were the basis of this prosecution: August 22 — Worley, $64; August 23 — May, $49.60; August 23 — Reeves, $80; August 25 — Coleman, $32; August 29 — Ives, $196.80. As explained by the evidence the names appearing opposite the dates represented the persons who had paid the amounts indicated, as payments of interest or principal on notes belonging to Keyes. The amounts set out above, while entered in the customer's passbook, did not appear in any of the records retained by the bank. This passbook was sent to Keyes, by appellant, with the above entries and a letter informing Keyes that he had collected the amounts indicated and also that Keyes now had a nice balance in the bank which he would not need and appellant would invest some of the money as he had done on prior occasions. Later the bank became insolvent and its assets were taken over by the State Finance Department for the purpose of liquidation. Keyes filed a claim with the Deputy Commissioner of Finance for the amounts as evidenced by the entries above set forth. Appellant admitted that he had made the entries referred to without any deposit having been made. His explanation was as follows:
"Q. Are you the Defendant in this case? A. Yes, sir.
"Q. You have seen then what is deemed the pass book of Mr. and Mrs. Keys; have you? A. Yes, sir.
"Q. Did you make those entries in that book, the five last entries? A. Yes, sir.
"Q. Had you at that time collected the interest that is there recorded? A. No, sir.
"Q. Why did you make that entry? A. To keep Harry Keyes satisfied as a valid customer of the Crawford County Farmers Bank, and my judgment told me it was to the best interest of the bank to make the entries on their book at that time. On account of the awful condition that the country was in during the summer and fall of 1932, I wanted to keep Keyes satisfied and not have him withdraw any money from the bank."
Appellant filed a motion to quash the indictment and has preserved for our review the sufficiency of the indictment to state an offense. His principal contention on that point is that the indictment failed to charge that the deposits, represented by the alleged book entries, were not actually made. It is urged that the sufficiency of the indictment in this case should be governed by the rules of law applicable to indictments for perjury and false pretenses. In other words, appellant says the indictment should have in effect stated that in truth and in fact no deposits were made as represented by the alleged false entries; that as worded, if the allegations of the indictment be taken as true, no offense was charged. To this we cannot agree. The statute, Section 4192, supra, denounces the offense as forgery. The constituent elements thereof are as stated in State v. Morro, 280 S.W. 697, l.c. 699, 313 Mo. 114, as follows:
"The crime consists of (a) making a false entry in a book; (b) with intent to defraud; (c) whereby a pecuniary obligation, claim, or credit shall purport to be created, increased, diminished, or discharged. The section then describes the kind of a book in which the entry may be made; (d) it must be a book of accounts kept by a moneyed corporation; and (e) delivered or intended to be delivered (f) to a person dealing with said corporation."
The indictment in this case followed the wording of the statute and contained every essential element of the crime. With regard to the question now being discussed it charged that appellant, as cashier of the bank, willfully, unlawfully and feloniously, with intent to defraud the bank, made certain false and fraudulent entries of deposits. The indictment set forth the entries alleged to be false. Is this language sufficient to charge that the deposits, as represented by the entries, were in fact not made? We think so. Webster's New International Dictionary defines the word "false" to mean, "not according to truth or reality, not true, erroneous, incorrect." The indictment, therefore, charged that the entries were not true. It also charged that the entries were made feloniously and with intent to defraud. If they were so made they could not have been made honestly or mistakenly, but falsely. We, therefore, rule that it was not necessary for the indictment to allege that in truth and in fact no deposits were made as represented by the entries mentioned. Such an allegation would have been nothing more than repetition of what had already been charged. In State v. Bell, 212 Mo. 111, 111 S.W. 24, l.c. 25, an information for forgery is set forth in full, which was approved. The indictment in this case is more definite and certain than the information in that case.
Appellant assigned as error the giving of Instruction No. 1, because it did not require the jury to find that the deposits, as alleged in the passbook, were not in fact made. The instruction required the jury to find, before authorizing a conviction, that the entries were false and were made with the felonious intent to defraud. What we have said disposing of the sufficiency of the indictment answers this contention.
Appellant also urges that it was error for the trial court to permit the Assistant Attorney General to make the opening statement of the case to the jury. Section 3681, Revised Statutes 1929 (Mo. Stat. Ann., p. 3227), prescribes the order of trial. This section provides in part, that after the jury has been sworn to try the case the trial may proceed in the following manner: "First, the prosecuting attorney must state the case and offer the evidence in support of the prosecution." The intent and purpose of the statute is to require the State, through its prosecuting officials, to make a statement of the facts intended to be introduced in evidence against the accused. This is required for the information of the defendant and the jury. The statute merely prescribes a mode of procedure and the term "prosecuting attorney" includes any attorney who is lawfully assisting in the prosecution. It was expressly so held in State v. Stark, 72 Mo. 37. [See, also, State v. Taylor, 98 Mo. 240, l.c. 243, 11 S.W. 570, and State v. Kowertz, 324 Mo. 748, 25 S.W.2d 113, l.c. 117 (13).]
The assignments of error pertaining to the admission of evidence read as follows:
"`3. The court erred in admitting evidence relative to the passbook and account of Alice Schwieder and in overruling defendant's motion to strike out the same.
"`4. The court erred in admitting in evidence the alleged passbook and leaves from the loose leaf ledger relative to the alleged account of Mr. and Mrs. H.M. Keyes and in overruling defendant's motion to strike out the same.'"
These assignments are insufficient to raise any question for our review. We cannot determine therefrom what reason appellant had in mind as to why the evidence was incompetent. Having failed to assign any reason we have nothing before us for review. [State v. Buckner, 80 S.W.2d 167, l.c. 169, 170 (10, 11); State v. Ryan, 50 S.W.2d 999, l.c. 1000 (6, 8); State v. Shawley, 334 Mo. 352, 67 S.W.2d 74, l.c. 86 (23, 25); State v. Majors, 329 Mo. 148, 44 S.W.2d 163, l.c. 166 (5).] Under the authorities cited the following assignment was likewise insufficient.
"`6. The court erred in refusing defendant's Instruction A, being the only instruction refused.'"
By Instruction No. 3 the jury were told that the intent with which an act was done may be inferred from all the facts and circumstances surrounding the act and must be determined from the evidence given in the case. Instruction No. 4 was an instruction on circumstantial evidence. Appellant contends that these instructions should not have been given because there was no circumstantial evidence in the case. The intent with which appellant made the entries, upon which the charge was based, was the main issue in the case. The State relied to a large extent upon circumstantial evidence to establish the fraudulent intent. If a case partially depends upon circumstantial evidence it is proper, but not mandatory, to instruct thereon. [16 C.J. 1008, sec. 2433.] It is certainly not harmful to a defendant to so instruct in such cases. These instructions are favorable to a defendant. As a rule defendants complain where such instructions are not given. [See cases cited in note 6, 16 C.J. 1009. See, also, State v. Jackson, 186 S.W. 990, l.c. 993 (4); State v. Shelby, 333 Mo. 610, 62 S.W.2d 721, l.c. 724 (4).]
Instruction No. 5 concerned evidence of other entries made by appellant. Appellant contends that the instruction was erroneous because there was no evidence that appellant defrauded or intended to defraud anybody by such entries; also that the instruction assumed that the entries in Keyes' passbook were made. Suppose the instruction did assume, which we do not think it did, that the entries in Keyes' passbook were made, in addition to the State's evidence, tending to establish that fact, appellant testified that the entries were made by him. Not an iota of evidence was introduced to the contrary. It was an assumed fact in the case. Appellant said in substance, yes, I made the entries, but not with a fraudulent intent. The alleged assumption in the instruction, if present, was harmless.
The State introduced evidence that appellant had made entries in other passbooks which did not correspond with the records in the bank. The instruction informed the jury that such evidence could only be considered in determining the intent of the defendant. This was entirely proper. The instruction was in substance the same as the instruction approved in the case of State v. Morro, 313 Mo. 114, 280 S.W. 697, l.c. 701 (11, 12). The issues in the Morro case were identical with the issues in the case under consideration.
Instruction No. 6, complained of by appellant, informed the jury in substance, that even if they found and believed that appellant had made the entries, as charged, and that they were false, but that appellant did not intend thereby to defraud the Crawford County Farmers' Bank, then it was their duty to acquit appellant. This instruction was favorable to appellant. The only complaint made of this instruction was that it omitted to place upon the State the burden of proving appellant guilty beyond a reasonable doubt. The trial court gave an instruction on the burden of proof telling the jury that appellant was presumed to be innocent until proven guilty beyond a reasonable doubt and that such burden rested upon the State. This was sufficient and it was not necessary to repeat the term "beyond a reasonable doubt" in other instructions. [State v. Ross, 300 S.W. 785, l.c. 786 (3, 4); State v. Hembree, 295 Mo. 1, 242 S.W. 911, l.c. 914 (6); State v. Buckner, 335 Mo. 229, 72 S.W.2d 73, l.c. 76 (7).]
Instructions Nos. 9 and 10, on the credibility of witnesses and reasonable doubt, were questioned by appellant in his motion for new trial. We have examined these instructions and find them in approved form. The phrase complained of in Instruction No. 10 is, that "a doubt to authorize an acquittal . . . ought to be a substantial doubt touching the defendant's guilt, and not a mere possibility of his innocence." This is a correct declaration of law, long approved by this court. [State v. Smith, 332 Mo. 44, 56 S.W.2d 39, l.c. 42 (6); State v. Temple, 194 Mo. 237, l.c. 249 (4), 92 S.W. 869; 16 C.J. 993, sec. 2401.] [8] The instruction on the credibility of witnesses was questioned because it informed the jury that if any witness had willfully sworn falsely to any material fact the jury could disregard the whole or any part of the witness's testimony. It is urged that the jury could have applied this instruction to no other witness than the defendant. There is nothing in appellant's testimony or in the record to justify this assertion. Appellant attempted to impeach the evidence of a number of witnesses. No attempt was made to impeach the testimony of appellant. The contention is, therefore, without merit.
The question of the sufficiency of the evidence to sustain a conviction was presented in a number of assignments of error. The intent with which the entries were made in the passbook was the main disputed issue. It was not developed by the evidence that the bank was actually defrauded. It is sufficient, under the statute, if the entries were made with the intent to defraud. We are of the opinion that the State introduced sufficient evidence to sustain the charge. The fact that the cashier did not make the same entries in the bank books as in the customer's passbook was evidence from which an evil intent could be inferred. The entries in the passbook certainly created an obligation against the bank. A passbook is the only evidence a customer of a bank has of the amount of deposits made. Standing alone and unexplained, entries in a passbook would be sufficient to support a judgment in favor of its owner against a bank which had made the entries. A jury in the trial of such a case is not bound to believe the explanation. So in this case, appellant's explanation as to why he made the entries was not binding on the jury. The issues in this case were similar to the issues in the case of State v. Peebles, 337 Mo. 973, 87 S.W.2d 167, recently decided by this court, where we held the evidence sufficient to support the charge. The passbook described comes within the terms of the statute as a book intended to be delivered, and created an obligation on the bank. A customer's passbook is a book of account. All entries made therein are made by the bank officers and the book is intended to be delivered to the customer. Every element of the crime charged was supported by evidence in this case. [See State v. Morro, 313 Mo. 114, 280 S.W. 697, l.c. 698, 699 (1, 2).]
In assignments 16, 17, 18, 19, appellant argues at length that the verdict of the jury was the result of passion and prejudice. It is stated that this court should take into consideration that the case was tried in an atmosphere antagonistic to appellant. We are asked to take judicial notice of these facts. Intermingled with these suggestions are complaints with reference to arguments made by the prosecuting officials. As to the latter we have carefully examined the record and find that appellant made only two objections during the argument complained of and both objections were promptly sustained by the trial court. During the opening statement an objection was made and it was sustained. The trial court having sustained all of appellant's objections there is nothing upon which to base error. The argument was not such that the trial court should have of its own motion taken some action.
We cannot take judicial notice of the existence of an antagonistic feeling against a defendant. When properly applied for the law entitles a defendant to a change of venue in such cases. No such application was made in this case as against the inhabitants of the county. At appellant's request a special judge was called to try the case. It is, therefore, evident that the attorneys for appellant did not overlook the question of a change of venue. The assertions in the motions for a new trial do not prove themselves. There is nothing in the record in this case that would indicate any prejudice against appellant. Appellant suggests that, because he received a punishment of four years' imprisonment, this court ought to say that the jury was prejudiced. This, standing alone, does not show prejudice. [State v. McGee, 336 Mo. 1082, 83 S.W.2d 98, l.c. 109 (41).] The punishment imposed was authorized by statute and is not the maximum punishment. The punishment to be inflicted in criminal cases is primarily a matter for the jury and the trial courts.
The trial court permitted appellant to file amendments to his motion for new trial. In these amendments appellant presented to the trial court the question of the qualification of four jurors, and also alleged that the jury had separated after the case was submitted to them. As to the qualification of the jurors, if we were to concede the truth of all the evidence in support of the motion, appellant would be in no position to complain. One of the jurors is alleged to have made a statement, after the trial of the case, that if appellant was tried before the same jury on another charge pending the jury would probably give him seven years. No showing was made that this juror, before the trial of the case, had formed or expressed an opinion with reference to the case, or that he was prejudiced against appellant. Many things may have happened, after the trial, tending to prejudice the juror. The record does not show that appellant examined this juror on voir dire examination. Having been accepted without being questioned appellant is in no position to complain after verdict. Another of the jurors, it was shown, had advised the wife of his half-brother to file a claim against the bank for the amount of her deposit with the bank. A third juror, it was shown, was a member of a church board. After the bank closed, the financial condition of the church was discussed. A member of the board mentioned that appellant had advanced $150 which the church ought to repay. The juror is alleged to have expressed doubt as to the church's liability because the money of the church was lost in the bank and the bank or appellant had the money. This occurred prior to the time appellant was indicted. The fourth juror, whose qualification was questioned, is alleged to have stated to other jurors, after the trial, while discussing the case: "I don't know, but I know I had some money in the bank and I don't know what became of it, and anyway it's gone." Granting all that to be true, as above stated, the record fails to show that appellant questioned these jurors on voir dire examination. The facts, as disclosed by the evidence, were not, as a matter of law, sufficient to disqualify the jurors. Had appellant questioned these jurors and they had answered the questions untruthfully, appellant would be in a different position. Having failed to question them their qualification cannot be impeached on a showing as was made in this case.
The evidence in support of a charge that the jury separated affirmatively shows that they did not separate within the meaning of the law. In the case of State v. Shawley, 334 Mo. 352, 67 S.W.2d 74, l.c. 88 (29-31), this question was discussed at length. Many authorities were reviewed from Missouri and other jurisdictions. The conclusion reached was, "that the mere physical separation of the jury for sleeping purposes in case of necessity or for their better accommodation does not violate a statute forbidding a separation, provided they remain in the custody and under the surveillance (not necessarily ocular) of the officer in charge of them." In this case it was shown that there was no adequate room in the local hotel for the accommodation of the jury. They were, therefore, taken to a rooming house for the night. The only persons who stayed at this place on the night in question were the members of the jury, a deputy sheriff and the members of the household. Eleven of the jurors occupied rooms upstairs and the officer in charge of them and one juryman occupied a room downstairs. It is important to note that the trial had not been concluded and the case had not been submitted to the jury for deliberation. Evidence in support of the charge was heard by the trial court. It disclosed that the members of the jury did not communicate with anyone other than the deputy sheriff and members of the jury. The evidence did not disclose that the jury had had an opportunity for outside communication. The evidence fails to even cast a suspicion of misconduct, but affirmatively shows its absence. The trial court, therefore, properly denied appellant a new trial on this ground. See State v. McGee, 336 Mo. 1082, 83 S.W.2d 98, l.c. 102 (1-3), for a full discussion of this question.
Attorneys for appellant, in their brief and in their oral argument, earnestly insisted that the conviction of appellant and the punishment imposed was a gross miscarriage of justice. We have carefully considered all of the points raised by counsel on this appeal. The record disclosed that appellant had a fair trial. He was represented by industrious, able counsel. During the trial the trial court was eminently fair to appellant in his rulings on disputed questions. The verdict is supported by substantial evidence. We are not here to pass upon the guilt or innocence of appellant. That question, under our system of jurisprudence, was for a jury. Having concluded that no reversible error appears in the record the judgment of the trial court must be affirmed. It is so ordered. Cooley and Bohling, CC., concur.
The foregoing opinion by WESTHUES, C., is adopted as the opinion of the court. All the judges concur.