Kirby v. State

• Decision Date: 04 June 1964
• Parties: Omer W. KIRBY, Alias, Plaintiff in Error, v. STATE of Tennessee, Defendant in Error. 18 McCanless 296, 214 Tenn. 296, 379 S.W.2d 780
• Court: Tennessee Supreme Court

Page 780

379 S.W.2d 780

Omer W. KIRBY, Alias, Plaintiff in Error, v. STATE of Tennessee, Defendant in Error.

18 McCanless 296, 214 Tenn. 296, 379 S.W.2d 780

Supreme Court of Tennessee.

June 4, 1964.

Ely & Ely, Knoxville, for plaintiff in error.

George F. McCanless, Atty. Gen., Walker T. Tipton, Asst. Atty. Gen., Nashville, for the State.

WHITE, Justice.

The plaintiff in error was convicted for violating T.C.A. Sec. 39-1904 (obtaining an automobile by means of a worthless check), and sentenced to serve five years in the State Penitentiary.

He filed a motion for a new trial, contending there was no evidence to support the verdict and that the evidence preponderated against the verdict and in favor of his innocence, and further that the punishment assessed by the jury was excessive.

The motion was amended by assigning for error the action of the court in instructing the jury that it was unnecessary to give the ten days notice of dishonor of the check by the bank as normally required by the statute because the check was returned marked 'account closed'. The statute provides that if the drawer or maker does not have an account, the notice is dispensed with but there is no provision in the statute for dispensing with notice where the check is returned because of 'account closed'.

The trial judge overruled the motion for a new trial, as amended, resulting in this appeal in which two errors are assigned. One is that the court erred generally in overruling his motion for a new trial as amended, and two, it was error to instruct the jury that since the check was returned by the bank marked 'account closed' it was not necessary that the ten days notice as provided by the statute be given.

There is a supplemental brief containing additional assignments of error, but they cannot be considered by us because they were not contained in the motion for a new trial.

Questions raised for the first time on appeal will not be considered, or stated in another way, the trial judge will not be put in error upon matters not brought to his attention for correction in the motion for a new trial. See Ex parte Calhoun, 187 Tenn. 372, 215 S.W.2d 789 (1948); Parker v. Reddick, 196 Tenn. 472, 268 S.W.2d 357, 45 A.L.R.2d 1086 (1954), and Rule 14(5), Rules of this Court, which provides in part:

'This is a court of appeals and errors, and its jurisdiction can only be exercised upon questions and issues tried and adjudged by inferior courts, the burden being upon the appellant, or plaintiff in error, to show the adjudication, and the error therein, of which he complains.'

The facts in this case are quite simple and are presented to us in narrative form, which we consider to be most satisfactory for easy reading and understanding.

On December 17, 1962, the defendant negotiated for the purchase of a used car from Maples and Davis Motor Company of Knoxville. When a price had been agreed upon the defendant gave to the seller his personal check in the amount of $490.25, drawn on Park National Bank of Knoxville, in payment for the car. The check shows on its face that it was given 'for '54 Chevy--in full', and then the motor number of the automobile is stated on the face of the check, and this check is signed, Omer W. Kirby.

As soon as the transaction was concluded the defendant got in the car and left the place of business of the Motor Company, and later that night drove the car to the State of Florida where it was abandoned by him in the City of Miami because it broke down, according to his testimony.

The narrative bill of exceptions states that the seller became 'leery' of the check and ascertained from the bank that it was not good. He then undertook to locate Kirby by going to his father's home. Upon learning that he had gone to Florida he checked again with the bank on the following morning and found that Kirby's bank account had been closed. Immediately thereafter he swore out a warrant for the arrest of Kirby.

The check and the bank slip showing the reason for failure to honor the check, the same being 'account closed', are both in the record.

An official of the Park National Bank testified that Omer Kirby did have an account with the bank but it had not been active since February 19, 1959. The ledger sheet of his account is in the record and it shows a deposit of $400.00 on February 9, 1959 and withdrawals charged against it on February 11 and 12, leaving a balance in the account on the date of February 13, of $2.95. On February 19, 1959, this sum was debited from this account because of charges made for the handling of previous checks that had been written, but returned because of insufficient funds which is the only conclusion that could be reached from the statement of the officials that 'the bank had closed the account out because of previous checks that had been written but had not been honored.'

The defendant is bound to have known of these returned checks and we do not see how he could escape knowing that his account had been closed and that he no longer had an account with Park National Bank of Knoxville.

The defendant testifed that he purchased the automobile; that he gave the check therefor, but that he told the seller at the time that the check was not good, but that he would make it good the first of the week, and he further testified that Mr. Maples, the seller, agreed to hold it until that time. Where or how he intended to acquire the money or how he intended proof. According to his statement, he was then employed by his brother as a produce truck driver, earning only $50.00 to $75.00 per week.

The defendant also contended that he had to abandon the car in Florida because it was no good and that he notified Mr. Maples of this fact. Maples agreed to take $250.00 in cash for the car, but refused to rescind the sale and take it back, according to the defendant.

On direct testimony and on rebuttal Mr. Maples denied that he agreed to hold the check, or that Kirby told him that the check was not good, but that it would be made good at a later date. He denied also he agreed to take $250.00 in cash for the car after it was abandoned in Florida. As a matter of fact...