Keese v. State, 4762

• Court: Supreme Court of Arkansas
• Citation: 265 S.W.2d 542,223 Ark. 261
• Docket Number: No. 4762,4762
• Parties: KEESE et al. v. STATE.
• Decision Date: 08 March 1954

Page 542

265 S.W.2d 542

223 Ark. 261

KEESE et al. v. STATE.

No. 4762.

Supreme Court of Arkansas.

March 8, 1954.

George F. Edwardes, Texarkana, for appellants.

Tom Gentry, Atty. Gen., Thorp Thomas, Asst. Atty. Gen., for appellee.

HOLT, Justice.

By information, appellants were charged jointly under § 41-1811, Ark.Stats.1947, with the 'crime of possessing forged and counterfeited instrument committed as follows, to-wit: The said defendants on the 10 day of July, 1953, in Miller County, Arkansas did unlawfully, wilfully and feoniously, falsely and fraudulently have and keep in their possession divers false, forged and counterfeited checks and drafts and fictitious instruments purporting to be checks, etc.'

Trial resulted in a verdict finding both guilty and leaving the punishment to be assessed by the Court. Pilgreen was adjudged to serve three years in the Boys' Industrial School, and Keese, three years in the State Penitentiary. From the judgment is this appeal.

Appellants first question the sufficiency of the evidence and their conviction under the above section of the statute, which provides in material part: 'Whoever shall fraudulently keep in his possession or conceal the counterfeit resemblance or imitation of any bank bill, note, check, or draft, or any instrument which circulates as currency, of any corporation, company or person that exists, or may exist, whether such bill, note, check, draft or instrument be complete and filled up, or otherwise, or shall fraudulently keep in possession or conceal any fictitious instruments, purporting to be a bank bill, note, check or draft of any corporation, company or person, whether the same be filled upon and complete or not, * * * or shall fraudulently * * * offer to pass, or assist, or be concerned in fraudulently buying, paying, or tendering in payment, altering or passing any such bill, note, draft, check * * *, shall be imprisoned in the penitentiary not less than three (3) nor more than ten (10) years.'

After reviewing all the testimony, we have concluded that it was substantial and sufficient to support the jury's finding that appellants were guilty of the crime charged.

The record reflects that on July 10, 1953, appellant, Keese, entered the Belk-Jones Store in Texarkana and presented to the cashier a check for payment in the amount of approximately $71, drawn on the State National Bank, and signed 'Willie Ray Smith' and payable to 'George F. Norris.' The cashier referred Keese to Mr. Jester, an employee whose duty was to approve checks. When Keese asked Jester to approve the check, Jester then telephoned the bank and was informed that the amount of the check was all right. Thereupon, Keese, tore up the check and left the store. Jester, at once, notified the police, and together with another employee, Heflin, went out on the street to search for the pieces of the check, but none was found. Thurman Conley, an acquaintance of Pilgreen, at the time was sitting in a car in the same block in which the store was located. Pilgreen entered Conley's car, removed a check from his billfold and placed it 'under the dash of my car.' Conley overheard Jester say he was looking for a check, so he, Conley, removed the check that Pilgreen had placed under the dashboard, followed Jester and Heflin, and gave the check to Heflin. The check was as follows: 'Texarkana, Arkansas, July 10th, 1953--THE STATE NATIONAL BANK of Texarkana--Pay to George F. Norris or bearer $71.50--Seventy one and fifty cents--Dollars--Willie Ray Smith.'

Heflin testified, in effect, that after he and Jester returned to the store and Conley delivered to him the check, copied above, he turned it over to the Police Department.

Deputy Sheriff Johnson testified that while Keese was in jail July, 1953, he obtained specimens of his handwriting, 'I had him write Willie Ray Smith, Bill Keese, and the name, George F. Norris and also some dates, and the figures seventy one fifty cents. * * * Did you advise him at the time that he did not have to do that? A. I don't believe I did.

'Q. In what manner did you obtain that specimen of his handwriting, did you ask him to do it? A. I had these names that were on this check and I asked him if he would write those names on this paper for me and he did.

'Q. He agreed to do so? A. Yes, he raised no objections to it.' These specimens were introduced in evidence.

Mr. Jones, head bookkeeper of the State National Bank, testified that he had had eight years of examining handwriting for the bank, that he was familiar with the handwriting of Willie Ray Smith, and that the signature of the above check (which check was introduced in evidence) was not Smith's signature and that the handwriting on the above check and the specimens procured by Officer Johnson were, in his opinion, written by the same person.

Willie Ray Smith testified that the signature on the above check was not his, and that he did not authorize any one to sign his name to it.

At the time the torn up check was presented by Keese at the store, he, Smith, had an account in the State National Bank.

We think the above testimony shows a definite plan and chain of events and acts connecting appellants with the crime charged and sufficient to establish their guilt.

The above statute makes it a crime for one to have in possession, with intent to defraud the 'counterfeit resemblance or imitation of any * * * check, * * * that exists, or may exist,' or to pass or to offer to pass such check, 'or be concerned in * * * tendering in payment * * * or passing any such * * * check.'

We think it obvious that under the plain terms of the above section, it was designed to apply not only to bank notes and currency, but also to the ordinary bank check, which is 'a written order or request addressed to a bank or persons carrying on the business of banking, by a party having money in their hands, desiring them to pay, on presentment, to a person therein named or bearer, or to such person or order, a named sum of money.' Vol. 1, Bouvier's Law Dictionary, Rawle's Third Revision, page 475.

The evidence shows that appellants had in their possession two forged, fictitious and fraudulent checks, the one that Keese tore to pieces in the store and the one left by Pilgreen in Conley's car, which was introduced in evidence. These two checks were practically identical in all essential parts.

We do not agree with appellants' contention that the above section, 'was designed only 'to protect banks and to prevent people from possessing anything that was designed to circulate as currency, and a check drawn by an individual upon a bank is not such an instrument as included in the original statute.'' Had the Legislature intended such a narrow and strained construction, it could easily have said so.

A directed verdict for appellants was properly refused since the evidence was sufficient to show a violation of the above statute. 'The trial judge may direct a verdict only where the evidence raises no material question of fact for the jury's determination'. Paxton v. State, 114 Ark. 393, 170 S.W. 80, 81 and Ruffin v. State, 207 Ark. 672, 182 S.W.2d 673.

Appellants also say that the court erred in refusing their request for a severance. This contention is untenable for the reason that our statute, § 43-1802, Ark.Stats.1947, provides: 'When two (2) or more defendants are jointly * * * indicted for a felony less than capital, defendants may be tried jointly or separately, in the discretion of the trial court.'

'The granting of a severance is within the sound discretion of the trial court.' Nolan and Guthrie v. State, 205 Ark. 103, 167 S.W.2d 503, 504. Its action will not be disturbed, absent evidence indicating abuse of discretion.

We find no abuse of discretion here.

Appellants next argue 'that the court erred in refusing to discharge the jury panel and in ordering the defendant, Doyle Pilgreen, into a trial during the same week that he had already been previously tried and committed, and this error was aggravated by the fact that it was known to the jury that tried him in the instant case,' and that they were denied a fair and impartial trial. We do not agree.

The record reflects that Pilgreen had been tried for some offense during the same week in which both appellants were jointly tried in the present case and that jurors, Roberts and Crank, (of the regular panel) knew of such trial. Whether Pilgreen was found guilty or acquitted, or on what charge, is not disclosed. While the jurors were being questioned on voir dire, the record shows:

'By Mr. Edwardes: (Questioning the panel as a whole) Gentlemen, have any of you heard of any case in this court at this term involving these defendants or either of them? (Thereupon, two jurors indicated that they had, said jurors being Buron Roberts and G. W. Crank, Jr.)

'Q. Did either of you hear the trial of that case? A. No, sir. (Both jurors answered in the negative).

'Q. Mr. Buron Roberts, I believe you were present when the jury was selected in the other case against Doyle Pilgreen? A. Yes, sir.

'Q. * * * Now, all you members standing know that there was another case here against the defendant, Doyle Pilgreen--is there any one of you that doesn't know it? A. I have heard the name mentioned is all I know about it.

'Q. You are Mr. Buron Roberts? A. Yes, sir.

'Q. Is there any one still standing that was on the other jury that tried Doyle Pilgreen? (There was none indicated).

'Q. It has come to your attention during the court's examination of the jury that there was another case here; all of you understand that now?

'By the Court: * * * In the court's qualifying this jury to serve on this case, no mention was made of any other case. * * * This jury panel has been examined fully, and they were asked that all who had served on any case in which either of these boys were involved would please be seated and they did, and so far as information being conveyed to these jurors, it could...