Kindred v. State

• Decision Date: 19 May 1970
• Docket Number: No. 369,369
• Citation: Kindred v. State, 258 N.E.2d 411, 254 Ind. 127 (Ind. 1970)
• Parties: James KINDRED, Appellant, v. STATE of Indiana, Appellee. S 46.
• Court: Indiana Supreme Court

Page 411

258 N.E.2d 411

254 Ind. 127

James KINDRED, Appellant, v. STATE of Indiana, Appellee.

No. 369 S 46.

Supreme Court of Indiana.

May 19, 1970.

Ralph M. Foley, of Foley & Foley, Martinsville, for appellant.

Theodore Sendak, Atty. Gen., William F. Thompson, Deputy Atty. Gen., for appellee.

GIVAN, Judge.

Appellant was charged by affidavit with the crime of forgery. Upon his plea of not guilty, trial was had by the court. Defendant was found guilty and sentenced to not less than two nor more than 14 years in the Indiana State Reformatory. The body of the affidavit under which the appellant was charged reads as follows:

'H. Fred Neal being duly sworn, upon oath says, that in and at the County of Morgan, in the State of Indiana, on or about the 28 day of March, 1968 that one JAMES KINDRED did unlawfully and feloniously forge the name of Ellis Early to a Midwest Bank Card Form for the purpose and with the intent of obtaining fifty ($50.00) dollars in cash from the Indiana Bank and Trust Company of Martinsville, Indiana. Said Midwest Bank Card Form being in words and figures following (H.I.)

contrary to the form of the Statute in such case made and provided, and against the peace and dignity of the State of Indiana.'

Appellant filed a motion to quash, the overruling of which he assigns as error in this cause.

Appellant points out that Burns Ind.Stat., 1956 Repl., § 10--2102, the statute describing the crime of forgery, sets forth 46 specific items which may be the subject of forgery. It is appellant's contention that this being a criminal statute it should be strictly construed, and that the maxim 'expressio unius est exclusio alterius' should apply in determining legislative intent, and that in making the application of this maxim the State cannt include the forgery of a bank card or charge account.

Appellant further argues that inasmuch as there is a specific statute providing penalty for the misuse of a credit card, the same being Burns Ind.Stat., 1956 Repl., § 10--2130 et seq., the State should be required to prosecute under that statute and should not be permitted to prosecute under the forgery statute. This Court has recently had occasion to pass on essentially the same question in the case of Von Hauger v. State (1969), Ind., 18 Ind.Dec. 641, 251 N.E.2d 116. In that case the appellant had unlawfully used a credit card and was charged by the State under the Offenses Against Property Act. He claimed that the State should only be permitted to prosecute him under the statute specifically providing a penalty for the misuse of the credit card. In that case this Court stated:

'When a person commits acts which constitute the violation of more than one criminal statute, the State has the option to charge and prosecute under any or all of the statutes which have been violated.'

As to appellant's claim that the maxim 'expressio unius est exclusio alterius' applies, we would call attention to the following portion of the forgery statute:

'Whoever falsely makes * * * any order, warrant or request for the payment of money, * * * or any other instrument in writing, with intent to defraud any person, body politic or corporate, or utters or publishes as true any such instrument or matter, knowing the same to be false, * * *'

In the case at bar the appellant forged the name of one Ellis Early on a Midwest Bank Card in the presence of State's witness, Marie W. Bennett. By so doing he obtained $50 in cash from the Indiana Bank and Trust Company, Martinsville, Indiana. We hold that such action on the part of the appellant is specifically covered by the foregoing language. We see no doubtful meaning in the language of the statute. Therefore, the maxim attempted to be invoked by the appellant is not applicable. 26 I.L.E., Statutes, § 119.

The evidence in this case most favorable to the State discloses:

One Gaston Nutter testified that he operated a clothing store in Martinsville. On the 26th day of March, 1968, the appellant, James Kindred, entered his place of business and picked out a number of items of clothing, including a yellow jacket. James Kindred tendered a credit card bearing the name of Ellis Early and in the presence of Mr. Nutter signed a card with the name of Ellis Early, which card bore the imprint of the credit card number.

Marie W. Bennett testified that she was an employee of the Indiana Bank and Trust Company of Martinsville, Indiana. On the 28th day of March, 1968, a person who looked like the appellant entered the bank, presented himself as Ellis Early and presented a credit card in order to obtain $50 in cash. She testified that this person was dressed in a new yellow jacket and that in her presence he signed the name of Ellis Early on a card containing the imprint of the credit card.

The evidence discloses that the credit card used in Mr. Nutter's store was the same credit card which was used two days later at the bank.

A handwriting expert, Douglas Buck, from the Indiana State Police Department, testified that a known sample of handwriting of the appellant had many marked similarities to the handwriting of the person who wrote the name of 'Ellis Early' in Mrs. Bennett's presence at the bank.

Appellant next contends the trial court erred in allowing Marie W. Bennett to testify to the identity of the appellant where she had first observed him in the police station at an informal lineup before the appellant had obtained or been appointed counsel. Appellant cites Wade v. United States (1967), 388 U.S. 218, 87 S.Ct. 1926, 18 L.E.2d 1149 to support this contention. An examination of the record fails to disclose any objection made by the appellant which would bring this case within the Wade case. The only objections found in the record concerning the admissibility of Mrs. Bennett's testimony are as follows:

'Q Do you know who presented you with this credit card and requested this money?

'A Well he said he was Ellis Early, but he wasn't.

'MR. BLUE:

'Well, now your Honor, I will object--I don't think--

'MR. BRAY

'I think she can tell whether she knows it is Ellis Early or not.

'A Well, it wasn't Ellis Early.

'MR. BLUE:

'Well, now Your Honor, I will move once again to strike it and ask a preliminary question of this witness.

'BY THE COURT:

'You may ask.

'MR. BLUE:

'Do you know Ellis Early?

'A I do,--now.

'MR. BLUE:

'But you didn't then?

'A No.

'MR. BLUE:

'Your Honor, I will move to strike the answers--she couldn't possibly,--

'MR. BRAY:

'Why Your Honor--she says she knows him now.

'BY THE COURT:

'I will overrule your objection Mr. Blue.

'THE DEFENDANT HAVING MADE AN OBJECTION HEREIN, AND THE COURT NOW OVERRULING SAID OBJECTION, TO WHICH RULING OF THE COURT THE DEFENDANT EXCEPTS.

'Q Is the--do you know if the person who signed this and was given that money is in the court room at this time?

'A Well, it looks like Mr. Kindred.'

It is fundamental that in order to preserve a question for this Court to review on appeal there must be an objection in the court below to the evidence submitted. Lewis v. State (1969), Ind., 18 Ind.Dec. 337, 250 N.E.2d 358.

In the Wade case counsel moved for a judgment of acquittal or alternatively to strike the bank officials's court room identification on the ground that the manner in which the lineup had been conducted violated his constitutional rights against self-incrimination and his right to counsel. In the case at bar no such objection or motion was made. We also point out parenthetically that Mrs. Bennett never did make positive identification of the appellant either at the police station or during the trial.

Appellant next alleges the trial court erred in allowing evidence of an alleged similar offense without first requiring the State to present a prima facie case of the alleged similar offense. To support this contention appellant cites Watts v. State (1951), 229 Ind. 80, 95 N.E.2d 570 and Todd v. State (1951), 229 Ind. 664, 101 N.E.2d 45. In the Watts case this Court stated:

'The general rule in Indiana for the admission of evidence of separate, independent, and distinct crimes, in establishing the guilt of a defendant, is that such evidence is inadmissible except to show intent, motive, purpose, identification, or a common scheme or plan.'

In the case at bar the appellant had objected to the testimony of one Gaston Nutter that two days previous to the commission of the alleged crime the appellant and entered his clothing store, picked out certain items of clothing and presented a credit card in payment for the supposed purchase. The sales slip for this purchase was introduced in evidence and is shown to bear the imprint of the same credit card which was used to obtain the $50 at the bank from Mrs. Bennett. Mr. Nutter further testified that one of the items obtained by the appellant in his store was a yellow jacket. Mrs. Bennett had testified that the person resembling appellant who had obtained the money from her was wearing a new yellow jacket. It thus becomes quite apparent the purpose for the introduction into evidence of the testimony of Mr. Nutter and the sales slip showing the number of the credit card used in that transaction was to identify the appellant.

Mr. Nutter made a positive court room identification of appellant as being the person who had obtained, among other items of clothing, a yellow jacket from him by the use of the same credit card which two days later was presented to Mrs. Bennett at the bank by a person whom she testified looked like the appellant and who was wearing a new yellow jacket. This evidence also tended to show a scheme and plan on the part of the appellant to use the credit card to obtain merchandise and money in the local community. The use of such evidence to show a definite plan, system and scheme is authorized under the Watts case. In that case, 229 Ind. at page 103, 95 N.E.2d 570, at page 580, this Court, quoting from Smith v. State (1939), 215 Ind. 629, 21 N.E.2d 709, stated:

"Where the circumstances...