Baker v. State
| Decision Date | 30 December 1922 |
| Docket Number | No. 22729.,22729. |
| Citation | 191 N.W. 666,109 Neb. 558 |
| Parties | BAKER v. STATE. |
| Court | Nebraska Supreme Court |
OPINION TEXT STARTS HERE
Syllabus by the Court.
Whether the attorney for the state shall be required to elect between different counts of the information is a matter resting in the sound discretion of the court, for an abuse of which only may error be assigned.
Chapter 296, Laws 1921, commonly known as the fraudulent check act, did not repeal by implication the statute of forgeries as applied to checks.
Where all the evidence presented by defendant refers to the one defense of alibi, an instruction beginning, “You are instructed that the defense in this case is what is known as an ‘alibi,’ ” is not prejudicially erroneous.
A definition of reasonable doubt, in an instruction, requiring it to be a doubt for which the jury can give a reason, is erroneous, but in this case held not prejudicial.
Error to District Court, Adams County; Dilworth, Judge.
Walter Baker, true name unknown, was convicted of forgery, and he brings error. Affirmed.J. E. Willits, of Hastings, for plaintiff in error.
Clarence A. Davis, Atty. Gen., and Chas. S. Reed, Asst. Atty. Gen., for the State.
Heard before MORRISSEY, C. J., and FLANSBURG, ALDRICH, LETTON and DAY, JJ., and REDICK, District Judge.
This is a prosecution for forgery, wherein the defendant was charged with forging and uttering four different checks at different times in separate counts, but the fourth count was dismissed, and defendant was tried and convicted on the three remaining. Some 45 errors are complained of, many of which are hypercritical and absolutely without merit. We have examined the record and the briefs with great care and find only the following questions in the record which require consideration:
[1] 1. After the evidence of the state had been received, the defendant moved to require the county attorney to elect upon which count in the information he would rely for a conviction, and the overruling of this motion is alleged as error. The cases of Korth v. State, 46 Neb. 631, 65 N. W. 792,Bartley v. State, 53 Neb. 310, 73 N. W. 744, and Sheppard v. State, 104 Neb. 709, 178 N. W. 616, 18 A. L. R. 1074, hold that whether or not the state shall be required to elect between different counts of an information is a matter resting in the sound discretion of the trial court, “the determining question in each case being whether defendant has been embarrassed or confounded in his defense.” It does not appear in this case that the defendant suffered any embarrassment by reason of the refusal of the court to require an election, and therefore, no abuse of discretion on the part of the court is shown. Plaintiff in error cites a number of cases to the point that, “When evidence has been introduced tending directly to the proof of one act and for the purpose of securing a conviction from it, an election is regarded as made of that act.” But where those cases sustain the proposition, as some of them do, they were for prosecutions charging only one crime, e. g., adultery, or sale of intoxicating liquors, and it was held that under such a charge, the state having introduced evidence of one act, it had elected to rely thereon, and could not be permitted to introduce evidence of other acts of the same character. They are not applicable here; the defendant in this case was sentenced as only upon one count.
[2] 2. The subject of the several forgeries being checks upon banks, it is claimed that they do not constitute forgeries, but merely offenses, under the fraudulent check act of 1921, chapter 296, Laws 1921, and that the latter act repealed by implication the forgery statute so far as checks were concerned. The fraudulent check act merely made it an offense to issue a check or order for the payment of money, upon any bank, knowing that the maker had no sufficient funds in or credit with such bank for the payment of such check in full. This was a new and distinct offense and many of the elements of the crime of forgery are not included therein. While there may be many cases in which it may be proper to prosecute either for forgery or issuing a fraudulent check, there are no cases in which only the elements of the latter crime are present which would warrant a prosecution for forgery; there is, therefore, no such repugnancy between the two statutes as to bring about a repeal by implication.
3. An affidavit sworn to before the county attorney by defendant while in jail, in which he stated that his true name was Walter Baker, and that he never went by the name of Charles R. Smith, or Clifford R. Smith, or Charles M. Smith, or Charles M. Whyte, was received in evidence over objection of defendant, that no proper foundation had been laid, and it was incompetent, irrelevant and immaterial. There was no direct evidence that the statement was made voluntarily, though, of course, he was under no obligation to make the affidavit, but he was under arrest at the time. However, defendant pleaded under that name without any suggestion that it was not his true name--the record shows that he signed an affidavit for process in that name and gave that name to the sheriff when he was arrested, which evidence...
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