Hanrahan v. State

• Decision Date: 30 October 1968
• Docket Number: No. 1067S118,1067S118
• Citation: 251 Ind. 325,241 N.E.2d 143
• Parties: Anthony J. HANRAHAN, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 143

241 N.E.2d 143

251 Ind. 325

Anthony J. HANRAHAN, Appellant, v. STATE of Indiana, Appellee.

No. 1067S118.

Supreme Court of Indiana.

Oct. 30, 1968.

Samuel J. Kagan, Martinsville, for appellant.

John J. Dillon, Atty. Gen., Murray West, Deputy Atty. Gen., for appellee.

HUNTER, Judge.

Appellant was charged in separate affidavits with the commission of two crimes: issuing a fraudulent check and forgery. On motion by the State and with no objection by appellant, the two causes were consolidated for purposes of the trial and this appeal. The only errors assigned by appellant are the overruling of his motions for a new trial. The motions for a new trial, filed for each cause but worded identically, were based on the following reasons:

'1. Error of law occurring at the trial in this, to wit:

That the Court erred in admitting for consideration by the jury, over objections of defendant, certain handwriting specimens obtained from defendants without the knowledge or consent of defendant's attorney, after defendant had been arraigned, and without informing defendant of his right to have counsel present during the interrogation which resulted in the obtaining of said handwriting specimens; that said handwriting specimens were obtained from defendant against his will through threats and by promises made by State Police Officer(r) Wayne Hall that by giving said handwriting specimens and by signing extradition papers, defendant would be released to the State of Michigan and charges would be dismissed by the Morgan Superior Court.

2. Error of law occurring at the trial in this, towit: That the Court erred in admitting for consideration by the jury, over objections of defendant, that defendant admitted certain handwriting specimens of belonging to him during interrogation by Deputy Sheriff Paul Mason, on July 28, 1966 without the knowledge or consent of defendant's attorney and after defendant had been arraigned, and without informing defendant of the right to have counsel present during such interrogations; that said admissions were obtained by threats and promises by the said Paul Mason, that said admissions would result in defendant being released to the State of Michigan and charges would be dismissed by the Morgan Superior Court.

3. Error of law occurring at the trial in this, towit:

That the Court erred in overruling defendant's written and oral motion for change of venue from the County.

4. That the verdict of the jury is contrary to law.

5. That the verdict of the jury is not sustained by sufficient evidence.'

As regards that first two grounds for a new trial, while the veracity of appellant's allegations as to his being deprived of his constitutional rights is subject to some question, we do not need to consider whether the evidence would have been admissible over timely objections. Despite his allegations to the contrary, the record shows that appellant did not object to the admission of this evidence at the time of its introduction at the trial. Appellant expressly approved the admission of Exhibits 'E' and 'F' for the sole purpose of comparison by a handwriting expert, and this was the only purpose for which this evidence was employed. Deputy Paul Mason did not testify as to any admission made by appellant except when cross-examined and then only in direct response to appellant's questions; appellant never objected or moved to strike any part of the testimony of this witness during the trial. It is well settled that unless a proper and timely objection is made to the admissibility of evidence in the trial court, the question is not reserved and will not be considered on appeal. White v. State (1955), 234 Ind. 193, 125 N.E.2d 442.

Furthermore, appellant has not furthered these two evidentiary objections with supporting argument in this appeal. Supreme Court Rule 2--17 provides that assignments of error or causes for a new trial not treated in an appellant's brief shall be deemed to be waived. Therefore, the only issues to be determined in this appeal are those raised by appellant in the third, fourth and fifth grounds of his motion for a new trial.

On April 19, 1966, appellant was charged by affidavit with the offense of issuing a fraudulent check. The affidavit reads in part as follows:

'* * * Anthony J. Hanrahan did then and there commit the crime of theft in that he knowingly and feloniously and unlawfully made, drew, uttered and delivered a check for payment of Twenty-Five Dollars upon the American Fletcher National Bank and Trust Company * * * which was then and there delivered by Anthony J. Hanrahan to Richard Thompson and Carl Thompson d/b/s (sic) Thompson's Garage in exchange for certain property knowing that said American Fletcher National Bank and Trust Company would refuse payment of said check when it was presented in the usual course of business * * *'

The first argument in appellant's brief is that this affidavit was based upon and grounded in Ind.Ann.Stat. § 10--2105 (1956 Repl.) which was repealed by the Offenses Against Property Act in 1964, and that the trial court therefore lacked subject-matter jurisdiction. This argument was properly reserved by appellant's motion for a new trial on the cause that the verdict was contrary to law. Appellant attempts to support his argument by comparing the language used in the affidavit with the language of the repealed statute.

The Offenses Against Property Act, while it repealed Ind.Ann.Stat. § 10--2105 (1956 Repl.), substituted a new statute, Ind.Ann.Stat. § 10--3037 (1968 Supp.), to deal with this factual situation and similar offenses. This new statute in pertinent part provides that:

'A person commits a crime when * * * he issues or delivers a check or other order upon a credit institution or person for the payment of money or other property, knowing that it will not be paid or honored by the drawee. The fact that the drawer has insufficient funds in or has no account with the drawee credit institution shall create an inference that the actor knew that it would not be paid or honored by the depository * * *.'

The allegations in the affidavit are clearly sufficient to constitute a crime under Ind.Ann.Stat. § 10--3037 (1968 Supp.). Any similarity in language between the affidavit and the repealed statute is inconsequential and unavailing to appellant.

As regards this charge, the evidence viewed most favorably for the State can be summarized as follows: On February 8, 1966, appellant presented one Carl Thompson d/b/a Thompson's Garage a check for twenty-five dollars ($25) drawn on an account at the American Fletcher National Bank and Trust Company, Indianapolis, Indiana, in partial payment for an automobile which appellant was then purchasing from Thompson's Garage. Both Carl Thompson and his wife, Frances Thompson, were present when the check was written; they both testified that appellant's wife wrote the check and appellant signed it. No handwriting comparisons were needed or used by the state to establish that appellant was the maker of the check. Carl Thompson deposited the check in a local bank, but it was soon returned with a yellow slip indicating that it had been dishonored because of 'insufficient funds' in the account. Norman A. Schultz, a bookkeeper for the American Fletcher National Bank and Trust Company, testified that the account on which appellant had drawn the check had been closed on January 4, 1966, because the account at that time had been overdrawn. The bookkeeper identified a 'file card' which was admitted into evidence showing that appellant had made no deposits to this account between January 4 and March 16, 1966.

Each material element of the charge must be proved by substantial evidence of probative value or by reasonable inferences therefrom. Harris v. State (1967), Ind., 231 N.E.2d 800, 802; Finch v. State (1967), Ind., 231 N.E.2d 45, 47. Two elements must be proved to sustain a charge of issuing a fraudulent check under Ind.Ann.Stat. § 10--3037 (1968 Supp.): (1) Appellant must have issued or delivered a check upon a credit institution for the payment of money, and, (2) appellant must have known that it would not be paid or honored by the drawee.

There was substantial evidence of probative value to show that appellant did sign and deliver a check for the payment of money drawn on an account that had been closed for over a month. The statute expressly provides that an inference can be drawn that the appellant knew that the check would not be honored from the fact that he did have sufficient funds with the bank to cover the check. Ind.Ann.Stat. § 10--3037 (1968 Supp.). We hold that there is sufficient evidence to sustain the verdict of the jury on this charge and that the verdict is not contrary to law.

On July 28, 1966, appellant was charged by affidavit with the offense of forgery as defined by Ind.Ann.Stat. § 10--2102 (1956 Repl.) which...