Francis v. Com.

• Decision Date: 28 May 1971
• Citation: 468 S.W.2d 287
• Parties: Ronald Ray FRANCIS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 287

468 S.W.2d 287

Ronald Ray FRANCIS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

Court of Appeals of Kentucky.

May 28, 1971.

Dixie R. Satterfield, Milliken & Milliken, Bowling Green, for appellant.

John B. Breckinridge, Atty. Gen., Mark F. Armstrong, Asst. Atty. Gen., Frankfort, for appellee.

VACATING JUDGMENT FOR FURTHER PROCEEDINGS

VANCE, Commissioner.

The appellant, Ronald Ray Francis, was convicted of the offense of uttering a forgery and sentenced to confinement in the penitentiary for a period of five years and a day. KRS 434.130.

He alleges six grounds for reversal of the judgment. They are: (1) error of the trial court in admission of evidence of other crimes (2) error in admission of testimony of an alleged accomplice (3) error in admission of samples of appellant's handwriting (4) failure of the trial court to direct a verdict of acquittal (5) improper and prejudicial comments of a prospective juror (6) error in admission of testimony of a witness whose identification of appellant was allegedly tainted by reason of a pretrial lineup.

On or about December 1, 1969, a safe was stolen from the Bowling Green Country Club. It contained some checks bearing the legend 'Bowling Green Country Club Employees' Fund' and the printed name of the American National Bank and Trust Company of Bowling Green, Kentucky. One of these checks payable to the order of Eddie Drane in the amount of $46.75 purportedly signed by Lenie Williams was cashed by the appellant on December 3, 1969 at the Reeves Food Market. The manager of the country club was the only person with authority to sign the check.

Appellant's first charge of error is that the trial court should have excluded all testimony that the check was taken from a safe which had been stolen from the Bowling Green Country Club shortly before it was cashed by appellant. His theory is that this evidence constituted proof of a crime against him other than the crime charged in the indictment.

The general rule is that the prosecution cannot prove against a defendant any crime not alleged in the indictment. Helton v. Commonwealth, Ky., 244 S.W.2d 762 (1951). The Helton case recognizes an exception to this rule. The exception is that all evidence which is pertinent to the issue and tends to prove the crime charged is admissible although it may also prove or tend to prove the commission of other crimes and to establish collateral facts. Shepperd v. Commonwealth, Ky., 322 S.W.2d 115 (1959). While the prosecution is not privileged to show unconnected and isolated unlawful conduct that had no bearing whatsoever upon the crime under scrutiny, yet all the circumstances may be shown which have a relation to the particular violation of the law imputed, even if, in doing so, other offenses may be brought to light. Morgan v. Commonwealth, Ky., 310 S.W.2d 281 (1958). In the determination of the appellant's guilty knowledge or his intent to defraud, the fact that the check in this possession was stolen was a material and relevant factor.

David Kinslow, alias Jerry D. Johnson, testified that he rode in an automobile with appellant to the Reeves Market; that he saw the check in the car; that appellant went inside the market and he remained outside in the car while the check was cashed.

Appellant objected that the witness was an accomplice and that his testimony should have been excluded pursuant to RCr 9.62 which provides that a conviction cannot be had upon the uncorroborated testimony of an accomplice. The rule does not prohibit or exclude the testimony of an accomplice and no objection is raised that the accomplice was not sufficiently corroborated.

There was some evidence from which it could be inferred that Kinslow was a biased witness but this presented a question for the jury as to the weight to be given his testimony and did not render it inadmissible. Matherly v. Commonwealth, Ky., 436 S.W.2d 793 (1969).

While the appellant was confined in jail he wrote several notes to the jailer requesting money from his billfold. At the trial these notes were admitted in evidence to permit a comparison of his handwriting with the handwriting on the check.

The appellant contends that the comparison of handwriting was not proper under the circumstances of this case, citing Howard v. Hunter, 5 Ky. Opinions 535 (1871); Pioneer Coal Co. v. Polly, 208 Ky. 548, 271 S.W. 592 at 594 (1925); and Stamper v. Commonwealth, 188 Ky. 538, 222 S.W. 1077 (1920). Although Howard v. Hunter, supra, holds that comparison of handwriting is not competent evidence to prove forgery, it was decided in 1871 prior to the enactment of KRS 422.120 which provides:

'When, in any civil or criminal action, there is a dispute as to the genuineness of the handwriting of a person, other handwritings of that person may be introduced for the purpose of comparison by witnesses with the writing in dispute. Such writings and the testimony of witnesses respecting them, may be submitted to the court or jury as evidence concerning the genuineness of the writing in dispute. * * *.'

The statute permits the introduction of samples of handwriting for comparison purposes.

Pioneer Coal Company v. Polly, supra, and Stamper v. Commonwealth, supra, are not helpful to the appellant. Pioneer Coal Company v. Polly relates to the question of whether the handwriting offered for comparison purposes was genuine while the handwriting samples in this case were admitted by the appellant to be genuine. Stamper v. Commonwealth relates to the requirement of reasonable notice to a defendant before introduction of samples of handwriting for comparison purposes. The purpose of the notice is to afford a defendant the opportunity to question the genuineness of the samples and the notice requirement is not applicable where the samples are admitted to be genuine. Mattingly v. Commonwealth, 221 Ky. 360, 298 S.W. 950 (1927).

The appellant further contends that he was not warned that the handwriting samples might be used against him and that the introduction of the samples violated his constitutional right against self-incrimination. , No authority is cited to support his argument.

The appellant was in no way compelled to write the notes and the notes are not testimonial in character. We see no reason why samples of handwriting should be placed in any different category than blood samples or finger prints insofar as their admissibility as evidence is concerned. Cf. Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966).

The appellant's contention that he was entitled to a directed verdict is based upon the fact that the Commonwealth failed to offer any evidence that the American National Bank and Trust Company of Bowling Green was a duly authorized banking institution under the laws of Kentucky, a fact which was charged in the indictment.

Fain v. Commonwealth, 287 Ky. 507, 154 No authority is cited to support this sustains appellant's contention that failure to prove the drawee bank was authorized to do business is fatal in forgery prosecutions. We have held, however, that the authority of a bank to engage in business may be proved by parol evidence. Carter v. Commonwealth, 311 Ky. 252, 223 S.W.2d 900 (1949). In Carter, evidence that one of the witnesses had been an assistant cashier of the bank for twenty years, that the appellant had done business with the bank and that the checks offered in evidence bore the printed legend 'Member Federal Reserve System' was sufficient proof that the bank was authorized to do business.

In criminal prosecutions, when the question arises whether a company is incorporated, for instance, in a case of a prosecution for larceny of the property of an alleged corporation, or for a forgery of the bills of an alleged banking corporation, it is only necessary to show that the corporation exists de facto, and this may be proved by general reputation; in other words by proving by parol testimony that it is a corporation de facto, doing business as such. Carter v. Commonwealth, supra; Morse v. Commonwealth, 129 Ky. 294, 111 S.W. 714 (1908); Hopkins v. Commonwealth, Ky., 328 S.W.2d 419 (1959).

In this case the check was introduced in evidence and it bore the printed legend 'American National Bank and Trust Company, Bowling Green, Kentucky.' The Bowling Green Country Club Employees' Fund had an account in the bank and the Reeves Market in Bowling Green readily accepted the check. When the issue of the authority of the bank to do business was raised the trial judge took judicial notice of the fact that the bank was a national bank operating in Bowling Green, Kentucky, with authority to do business there. ¹

We think the parol evidence was sufficient to show the de facto existence and authority of the bank under the rule of Carter v. Commonwealth,supra. Moreover, we feel it is time to reexamine the holding in Fain v. Commonwealth, supra.

KRS 434.130 provides:

'(1) And person who forges or counterfeits any writing in order to obtain fraudulently the possession of or to deprive another of any money or property, or to cause another to be injured in his estate or lawful rights, or any person who utters and publishes such an instrument as true,...