Opinion
March 2, 1929.
1. FORGERY: Assignment of Insurance Policy: Intent to Injure. Evidence tending to show that defendant, an insurance solicitor, signed the name of the insured to an assignment of a life insurance policy to defendant as the act of the insured, without authority from the insured so to do, with intent to injure and defraud, will support a charge of forgery in the third degree based upon Section 3436, Revised Statutes 1919; but if defendant signed the insured's name to the assignment at the insured's request and the insured afterwards acknowledged the assignment, there was no forgery.
2. ____: ____: Acknowledgment: Witnesses: Sufficient Evidence. The notary's certificate of acknowledgment, attached to a purported assignment by the insured of a life insurance policy to defendant and witnessed by two persons, and the direct testimony of said witnesses tending to show that the insured, now deceased, acknowledged his signature to the assignment, if believed, will authorize the jury to acquit the defendant of the charge of having forged the signature of the insured to the assignment; but where the notary's testimony is of little probative force, because he did not know the insured and took the word of defendant or of said witnesses that the man introduced to him was the insured, the jury are not required to accept such testimony, and, under such circumstances and proper instructions, may refuse to find that the insured acknowledged his signature; and testimony that the insured could not write his name, and that nevertheless his name appeared on the envelope in which the policy was inclosed when defendant presented it to the notary, and on other exhibits, and that the same hand which wrote his name on them wrote it on the assignment, and the testimony of various witnesses that they saw him write the name of the insured to the assignment of the policy to himself, and his denial that he did not write the name of the insured on the assignment, is substantial evidence to support a charge of forgery in the third degree, with intent to injure and defraud.
3. ____: Intent: Inference. The jury may find that the intent of defendant was to injure and defraud from the fact that the assignment on the life insurance policy purported to transfer its benefits from the insured's heirs to himself, where there is substantial evidence that defendant wrote the insured's name to the assignment, without authority from the insured, and he denies having written it.
4. ____: Admission of Immaterial Evidence: Erasure of Name. In the trial of a defendant charged with having forged an assignment of a life insurance policy to himself, proof that the name of another had been signed to the assignment and that name afterwards erased and the name of the insured written over it, is immaterial, and its admission is not prejudicial to defendant. The issues are whether defendant wrote the name of the insured as it appears on the assignment, without authority to do so, and whether this was done to injure and defraud, and those questions are not affected favorably or unfavorably to defendant by proof tending to show that another name had been written upon the paper constituting the assignment before the name of the insured was written thereon.
5. INSTRUCTIONS. General assignments in the motion for a new trial that the court erred in giving certain numbered instructions do not comply with the Act of 1925 and cannot be considered on appeal.
6. JUDGMENT: In Bill of Exceptions. The judgment should be set out as a part of the record proper, and not in the bill of exceptions.
Corpus Juris-Cyc. References: Criminal Law, 17 C.J., Section 3407, p. 121, n. 80; Section 3662, p. 317, n. 10. Forgery, 26 C.J., Section 137, p. 971, n. 69.
Appeal from Pettis Circuit Court. — Hon. Dimmitt Hoffman, Judge.
AFFIRMED.
A.L. Shortridge and W.D. Steele for appellant.
(1) It is not charged that the defendant procured the substitution of one person for another in acknowledging the instrument before the notary public, but he stands charged with forging the name of Osley Bradford to the assignment, and the State introduced a regularly acknowledged instrument which was prima-facie evidence of the facts recited therein, and was clothed with a presumption of correctness, which presumption was in defendant's favor, and his demurrer to the evidence at the close of the State's case should have been given. There is no charge that the acknowledgment is false, and the effect of the acknowledgment would have been the same even though it were signed by some other person on behalf of Bradford, provided he acknowledged the signature to be his, which the evidence shows he did. State v. Andrews, 248 S.W. 969; Albright v. Stevenson, 227 Mo. 334. (2) The acknowledgment purported verity and this court has repeatedly held that "To impeach a deed or the acknowledgment thereof, the proof must be clear and satisfactory." Webb v. Webb, 87 Mo. 541; Barrett v. Davis, 104 Mo. 549; Elliott v. Shepard, 179 Mo. 382; State ex rel. v. Thompson, 81 Mo. App. 550. There is no evidence as to the falsity of the acknowledgment, and in fact there was no charge of a false acknowledgment. Barrett v. Davis, 104 Mo. 555; Albright v. Stevenson, 227 Mo. 340; Howell v. Fire Ins. Co., 257 S.W. 181. (3) Even though Bradford could not write, if he acknowledged his signature it made no difference whether it had been written by him or some other person, as forgery is a false making or alteration with fraudulent intent of any writing, and if Bradford acknowledged the signature to be his there could be no false intent. State v. Cordray, 200 Mo. 31; Kelly's Criminal Law, sec. 819, p. 717. (4) Witness Howald was not shown to be an expert, and in fact it would not require an expert to examine an instrument through a glass. The jury were equally as competent to reach conclusions by examining the alleged erasure as was the witness, and in permitting the witness to state that a name had been erased and another substituted was permitting him to give his opinion and thereby invading the province of the jury. Pioneer Lumber Co. v. Van Cleave, 279 S.W. 24; Mahany v. Railways Co., 286 Mo. 620. Even had the witness, Howald, been an expert in handwriting, it was error to permit him to say that one name had been erased and another substituted, which he was permitted to do. Unrein v. Oklahoma Hide Co., 244 S.W. 928. The answer was clearly an opinion of the witness and highly prejudicial. Madden v. Mo. Pac. Ry. Co., 50 Mo. App. 666; Swan v. O'Fallon, 7 Mo. 121; Wagoner v. Jacoby, 26 Mo. 531.
Stratton Shartel, Attorney-General, and Mary Louise Ramsey, Special Assistant Attorney-General, for respondent.
(1) The demurrer to the evidence at the close of all the evidence was properly overruled because there was sufficient evidence to establish every necessary element of the offense. Defendant's own false statements and denials constitute valid links in the chain of evidence establishing his guilt. State v. Concelia, 250 Mo. 411. (2) The paper about which Howald testified was before the trial court, who was therefore in a better position to pass on the admissibility of the evidence than this court can be. It is elementary that every presumption will be indulged in in favor of the decision of the trial court and its ruling will not be disturbed except in a clear case. The trial court admitted this as a matter of fact, rather than of opinion, which was proper. Yates v. Waugh, 46 N.C. 483; Dubois v. Baker, 30 N.Y. 355; State v. Lewark, 186 P. 1002. (a) Even if this had been a matter of uncertainty calling for an opinion, Howald properly qualified as an expert to testify thereon. Vinton v. Peck, 14 Mich. 287; Birmingham Nat. Bank v. Bradley, 108 Ala. 205; Hendrix Bros. v. Gillette Bros., 6 Colo. App. 127; Hawkins v. Grimes, 52 Ky. 261; Hadcock v. O'Rourke, 6 N.Y.S. 549. (b) If this evidence were improperly admitted, it does not constitute reversible error because it relates to an immaterial matter which had nothing to do with defendant's guilt or innocence and was not disputed by him. State v. Moreaux, 254 Mo. 398; State v. Baker, 262 Mo. 689; State v. Sharpless, 212 Mo. 201; State v. Loesch, 180 S.W. 879.
Appellant was convicted in the Circuit Court of Pettis County of the crime of forgery in the third degree, was sentenced to imprisonment in the penitentiary for a term of two years, in accordance with the verdict of the jury, and has appealed.
The main insistence of appellant is that the trial court should have directed a verdict of not guilty. This requires a rather full statement of the facts which the evidence tended to prove. Appellant is a colored man. He was an agent for the Quick Payment Old Line Life Insurance Company and worked out of the Sedalia office of that company. His clients apparently were of the same race. An insurance policy for $500, dated June 6, 1927, was written by appellant on the life of Osley Bradford, another colored man, who met a violent death soon afterwards. After Bradford's death, appellant appeared at the office of the insurance company with an assignment to himself of Bradford's insurance policy, purporting to have been signed by Bradford and witnessed by L.S. Watson and David Robinson. To this was attached an acknowledgement, purporting to be that of Bradford and certified by a notary public.
The State offered evidence tending to show that the name "Osley Bradford," which appeared in two or three places on an envelope containing the insurance policy and possibly on other papers, was written by appellant. A witness, who qualified as an expert, testified that the names of Osley Bradford, as signed to the purported assignment, and as written by appellant on the envelope and other exhibits, were in one and the same handwriting, that is, were written by the same person. It was also shown by three or four witnesses that Bradford was illiterate and could not sign his own name.
Appellant took the witness stand and contented himself merely with testifying that he did not sign Bradford's name upon the various exhibits where the State's witnesses said they saw him write it. He also denied writing Bradford's name on the assignment of the insurance policy. Upon cross-examination, he said he did not know who did write Bradford's name upon the assignment.
Robinson and Watson, who were also colored, were called as witnesses and testified that they accompanied appellant and Bradford to the office of the notary public and heard Bradford state that he had signed his name to the assignment and that they heard him acknowledge the same to be his own act. They said that the assignment was already signed when they first saw it and that they did not see Bradford sign it.
The notary public testified rather hazily concerning the taking of the acknowledgment to the effect that appellant and Bradford and the two witnesses came before him for that purpose. He did not know Bradford, but was told who he was and that the man introduced as Bradford acknowledged his signature, which already had been appended to the instrument.
The information was based on Section 3436, Revised Statutes 1919, which makes it forgery in the third degree for any person, with intent to injure and defraud, to forge any instrument or writing, purporting to be the act of another, by which any rights or property whatsoever shall purport to be Elements transferred or in any way affected. The assignment of Offense. in evidence was such an instrument, because it purported to sell and assign to M.M. Poole (appellant) all of Bradford's right, title and interest in and to said policy of insurance and to authorize said Poole to collect all money due or to be due on said policy.
An offense would be made out under said Section 3436 by evidence tending to prove that appellant signed the name of Bradford to the assignment as the act of Bradford without authority from him so to do, if such signing was done with intent to injure and defraud. If appellant signed Bradford's name to the assignment at his request and Bradford afterward acknowledged the instrument, there could, of course, have been no forgery. The testimony of Watson and Robinson tended to show that Bradford acknowledged his signature to the assignment, but appellant himself did not undertake to assert that he had written Bradford's signature thereon at his request. Appellant denied signing Bradford's name and disclaimed all knowledge as to who did sign it.
The certificate of acknowledgment of the notary and the direct testimony of Watson and Robinson tended to show that Bradford acknowledged his signature. If the jury believed that Bradford acknowledged his signature, it should have acquitted Sufficient appellant. By Instruction D, asked by appellant, the Proof. jury was so told. But the jury apparently did not believe Watson or Robinson. The notary's testimony was of little probative force because he did not know Bradford and took the word of appellant or his witnesses as to his identity.
The jury had the right to find that appellant wrote Bradford's name on the envelope and the other exhibits and that the same hand which wrote the name there, wrote it on the assignment. The justice of the peace and the mother and sister of Bradford testified that Bradford could not write his own name. If these were accepted as the facts, it is reasonably certain that Bradford did not write his own name upon the assignment. We think that a case was made for the jury on the issue that Bradford's name on the assignment was written by appellant, and, since appellant did not so claim, that Bradford's name was written without his authority.
The intent to injure and defraud could properly be found by the jury from the fact that the assignment purported to transfer the benefits of the policy from Bradford's heirs to appellant himself. We are satisfied that the evidence offered by Proof of the State, aided as it was by the evidence offered by Intent. appellant, was sufficient to support the verdict returned by the jury.
Appellant complains of the admission of proof offered by the State to the effect that the name of another had been signed to the assignment and that that name had afterwards been erased and the name of Bradford written over it. We are unable to Harmless see how such fact was material at all. Whether it was Proof. true or not, was unimportant. It makes no difference whether some other name had at one time been written upon the assignment. The questions at issue were whether or not appellant wrote the name of Bradford, as it then appeared on the assignment, without authority to do so and, of course, whether this was done with intent to injure and defraud. Those questions were not affected in any wise favorably or unfavorably to appellant by the proof tending to show that another name had at one time been written upon the paper constituting the assignment before the name of Bradford was written thereon. If error was committed in the admission of the particular proof, it is quite apparent to us that it was entirely harmless and in no wise prejudicial to the appellant. The assignment is wholly without merit and is overruled.
Complaint is made of Instructions 1, 2, 3 and 4, given by the court at the request of the State. The assignment in respect thereto in the motion for new trial is too general to comply with Section 4079, Laws 1925, page 198. [State v. General Standifer, 316 Mo. 49, 289 S.W. 856.] This Assignments. consideration, no doubt, accounts for the failure of appellant to renew this particular assignment in his brief in this court.
The formal sufficiency of neither the information, the verdict, nor the judgment, is challenged. Nevertheless, we have examined the same and find that they are sufficient in form and substance. The judgment appears only in the bill of exceptions, and Record not in the record proper. But no point has been urged in Proper. respect to such irregularity. The record proper and not the bill of exceptions is the proper place to set out the judgment.
We find no error in the proceedings before the trial court which could have been prejudicial to the rights of appellant. We deem the evidence sufficient to authorize the verdict rendered by the jury.
The judgment rendered thereon is affirmed. All concur.