State v. Beam

• Decision Date: 06 March 1954
• Docket Number: No. 39209,39209
• Citation: 267 P.2d 509,175 Kan. 814
• Parties: STATE v. BEAM.
• Court: Kansas Supreme Court

Page 509

267 P.2d 509

175 Kan. 814

STATE v.BEAM.

No. 39209.

Supreme Court of Kansas.

March 6, 1954.

Rehearing Denied April 14, 1954.

Syllabus by the Court.

1.Where, in violation of the provisions of G.S.1949, 21-554, a worthless check is executed by the maker in one county and thereafter transmitted by United States mail to the payee in another county, the jurisdiction of the offense is in either county.

2.Under the provisions of G.S.1949, 62-1438, the trial court in a criminal case may, for good reason and in the furtherance of justice, admit evidence for the prosecution in rebuttal even though some of such evidence might have been introduced in the case in chief.

3.Adhering to decisions cited in the opinion it is held that an intention to defraud or the accomplishment of a fraud are not elements of the offense created by the provisions of G.S.1949, 21-554.

4.Following State v. Ball, 110 Kan. 428, 204 P. 701, and other decisions mentioned in the opinion, the rule, that errors assigned respecting the exclusion of evidence not brought into the record on the hearing of a motion for new trial in compliance with the provisions of the criminal and civil codes (G.S.1949, 62-1414 and 60-3001 to 3004) are not subject to appellate review, is recognized, adhered to and applied.

5.On appeal from a conviction on a charge of having drawn and delivered a worthless check in violation of the provisions of G.S.1949, 21-554, the record is examined, and held, to disclose no error warranting the reversal of the judgment.

Kenneth H. Foust, Iola, argued the cause, and O. E. Enfield, Arnett, Okl., on the briefs, for appellant.

William S. Bowers, County Attorney, Ottawa, argued the cause, and John B. Pierson, Ottawa, on the briefs, for appellee.

PARKER, Justice.

Defendant, C. R. Beam, was arrested, tried, convicted, and sentenced on a charge of having drawn and delivered a worthless check in an amount of more than $20, in violation of G.S.1949, 21-554, and appeals.

The facts on which the conviction depends are so much in conflict it is impossible to outline a factual picture on the basis of admissions by the respective parties or their counsel.However, it may be stated, the record discloses ample evidence to sustain the factual conclusion, inherent in the jury's verdict, that on April 8, 1951, defendant, who had been involved in the purchase of seventeen head of cattle from Bob Lantis, the prosecuting witness, at Ottawa in Franklin County, Kansas, executed a check at or near Wellington in Sumner County, Kansas, payable to Lantis, for the agreed purchase price of such cattle and thereafter delivered such check, or caused it to be delivered, to the payee therein named, at Ottawa, through the medium of the United States mail, where it was placed in the payee's bank for collection; thereafter sent through regular business channels, and payment thereof ultimately refused by the Farmers & Merchants Bank of Arnett, Oklahoma, the bank on which it was drawn, because of insufficient funds on deposit in that institution.

In view of what has been heretofore related, as well as the issues raised on appeal, nothing would be gained by a detailed recital of the evidence adduced at the trial.For that reason, we turn directly to the errors assigned as grounds for reversal of the judgment and will refer to portions of the testimony essential to their disposition as they are given consideration.

Two of such assignments are to the effect the trial court should have sustained motions to dischargethe defendant because the opening statement of the state's attorney and the evidence adduced by the state in its case in chief disclosed that the district court of Franklin County did not have jurisdiction to try the cause.Both are based upon the premise the district court lacked jurisdiction because such opening statement, as well as the state's evidence, disclosed that the check in question was written or signed in Sumner County.Neither has merit.This court, in conformity with the provisions of G.S.1949, 62-404, is committed to the rule that where a worthless check is executed by the maker in one county and transmitted by the United States mail to the payee in another county the jurisdiction of the offense is in either county.In re Myers, 119 Kan. 270, 237 P. 1026.

The record discloses two other specifications of error which can be considered together.One relates to the admission of incompetent testimony and the other to improper admission of testimony on rebuttal.The state made a prima facie case by producing the check in question and testimony on the part of one witness who stated that all writing appearing thereon, including the name of the payee, the signature of the maker and the amount payable, was placed there by the defendant.After the state had closed its case the defendant took the stand and, while he admitted the signature, stated in substance that he had signed and delivered the check in blank for another purpose to one Hugh Gillespie, with whom he had been connected in some sort of a joint adventure involving the sale and purchase of cattle, and specifically denied that the other handwriting appearing thereon was his own.After defendant had so testified the court permitted the state to offer testimony in rebuttal on the part of witnesses respecting the handwriting of the defendant.Two of these witnesses produced instruments, known to have been defendant's handwriting, which were admitted.The third witness was a handwriting expert, who testified that after an examination of the check and the instruments to which reference has just been made, he was of the opinion that the check had been written by the defendant in its entirety.All of this evidence was objected to by defendant on the ground it was not competent because it was a part of the state's case in chief and he now argues, without producing any authorities to support his position, that such evidence was no part of the state's rebuttal; that its admission was prejudicial to his rights; and therefore constitutes grounds for reversal of the judgment.There are two short answers to these contentions.The first is that under the confronting circumstances this evidence was properly admitted on rebuttal for the purpose of refuting defendant's claim to the effect that nothing appearing on the check, except the signature, was in his handwriting.The second is, that under our decisions, seeState v. Gibbs, 105 Kan. 52, 181 P. 569;State v. Abrams, 115 Kan. 520, 223 P. 301;State v. McReynolds, 118 Kan. 356, 360, 234 P. 975;State v. Haines, 128 Kan. 475, 477, 278 P. 767, the admission of such evidence, even though it be assumed it pertained to the state's case in chief, did not prevent the defendant from having a fair trial and affords no sound ground for reversal of the judgment.Indeed, after the defendant while testifying as a witness in his own behalf conceded the signature but denied the balance of the check was in his handwriting, sound reason and the furtherance of justice, which we pause to note are the bases on which evidence is held to be properly admissible under the foregoing decisions even where it is to be regarded as a part of the original case, required admission of the evidence which defendant now argues was erroneously received.

During the course of the trial and while the defendant was on the stand he was asked on cross-examination whether he did not know that the sheriff of Franklin County had a warrant for him for an insufficient fund check out in Western Kansas and promptly answered no.Immediately his attorney objected to the question and in effect asked that the answer be stricken.Thereupon the trial court promptly instructed the jury that it was admonished to disregard the testimony regarding the question and the answer given in response thereto.In connection with this same matter it may be added that 10a of the court's instructions to the jury reads as follows:

'During the trial of this case, certain testimony has been offered, and objections made thereto sustained or, in some cases, the evidence was ordered stricken.You are instructed not to consider any of such evidence that has not been admitted by the court or which was ordered stricken by the court.'

Notwithstanding what has just been related the defendant contends the question was prejudicial to his rights and requires a reversal of the judgment.We do not agree.Conceding for purposes of argument that the question was improper, the error, if any, with respect to both the question and the answer was cured by the trial court's action in orally instructing the jury to disregard the question as well as the answer and by its subsequent instruction when the cause was finally submitted.

SeeState v. Bell, 109 Kan. 767, 201 P. 1110, which holds:

'Error cannot ordinarily be predicated by a defendant in a criminal case on the admission of evidence to which he makes timely objection, when his objection is promptly sustained, and the jury is directed to disregard such evidence.'(Syl. par. 4.)

See, also, City of Wichita v. Hibbs, 158 Kan. 185, 146 P.2d 397, where it is said:

'* * * Even if the testimony about which appellant complains had been improper and even though the trial court had abused its discretion in determining the extent of the cross-examination, which it did not do, appellant still could not be heard to complain because the prompt striking of improper evidence accompanied with an instruction by the court to disregard it, cures the error of its admission where it does not affirmatively appear the temporary reception of such evidence resulted in prejudice to the substantial rights of the defendant.See, State v. Bisagno, 121 Kan. 186, 246 P. 1001, andState v. Williams, 126 Kan. 375, 267 P. 1095.'158 Kan. at page 189, 146 P.2d at page 400.

Other grounds of error relied on relate to the instructions.At the close of the trial the court instructed the jury at length...