State v. Edwards

• Decision Date: 09 March 1940
• Docket Number: 34431.
• Parties: STATE v. EDWARDS.
• Court: Kansas Supreme Court

99 P.2d 836

151 Kan. 365

STATE v. EDWARDS.

No. 34431.

Supreme Court of Kansas

March 9, 1940

Rehearing Denied April 12, 1940.

Syllabus by the Court.

Where record did not disclose any motion to quash or motion to compel the state to elect at to several offenses allegedly set forth in information, nor any rulings on such motions there was nothing for court to consider on appeal with respect to alleged error in overruling such motions.

Where record fails to show that accused requested giving of any instructions or objected to any instructions given, and shows only some of the instructions and excerpts from others with which it appears there is nothing fundamentally wrong, error may not be predicated thereon.

Where no objection is made to the admissibility of evidence in trial court, there can be no review in the appellate court.

In prosecution under information charging that others conspiring with and aided by accused feloniously abstracted money of bank with intent to defraud the bank, where the parties were charged jointly, and evidence tended to show a chain of circumstances leading up to proof of the unlawful taking, and there was evidence that one of the parties signed name of accused to two checks, and that the checks were worthless testimony of bank officers that accused did not have funds in either of banks on which checks were drawn was not erroneous particularly since it was cumulative, Gen.St. 1935, 9-140.

Generally, in determining the sufficiency of evidence to sustain a conviction, the appellate court looks only to evidence which is favorable to the decision, and if the essential elements of the charge are sustained by any legally admitted evidence, conviction must stand.

In prosecution under information charging that others conspiring with and aided by accused feloniously abstracted funds of bank with intent to defraud the bank, evidence sustained conviction. Gen.St.1935, 9-140.

The question of venue of offense, to be available on appeal, must have been raised in trial court.

1. Where the record in a criminal case does not disclose that a motion to quash the information and a motion to compel the state to elect as to the several offenses claimed to be set forth in the information were presented to the trial court, on appeal error may not be predicated on the fact such motions were not sustained.

2. Error may not be predicated on the instructions to the jury where the record fails to show that appellant requested the giving of any instructions or objected to any instructions given, and shows only some of the instructions and excerpts from others with which it appears there is nothing fundamentally wrong.

3. Where no objection is made to the admissibility of evidence in the trial court, there can be no review in the appellate court.

4. The general rule is that in determining the sufficiency of evidence to sustain a conviction, the appellate court looks only to evidence which is favorable to the decision, and if the essential elements of the charge are sustained by any legally admitted evidence, the conviction must stand.

5. To be available on appeal, the question of venue of the offense must have been raised in the trial court.

Appeal from District Court, Harper County; Clark A. Wallace, Judge.

C. T. Edwards was convicted of feloniously abstracting and converting moneys, funds, securities, and credits of a named state bank with intent to injure and defraud the bank, and he appeals.

John E. Wheeler, of Marion, for appellant.

Jay S. Parker, Atty. Gen., and Guy Neal, Co. Atty., and E. C. Wilcox and J. Howard Wilcox, all of Anthony, for appellee.

THIELE Justice.

Defendant was convicted of a violation of a criminal provision of the statutes with reference to banks and banking (G.S.1935, 9-140).

He was tried on an information containing two counts. In the first count it was charged that on November 15, 1937, one J. R. Goodan, the assistant cashier and managing agent of the Corwin State Bank, a banking corporation located at Corwin, Harper county, Kansas, conspiring with and aided and abetted by one E. G. Gillen and the defendant Edwards, unlawfully, feloniously, knowingly and wilfully abstracted, misapplied and converted to the use of all three of them moneys, funds, securities and credits of The Corwin State Bank in the sum of $3,000 with intent to injure and defraud that bank. The second count was like the first but charged an offense on November 24, 1937, in the amount of $450.

At his trial Edwards was convicted on both counts, his motion for a new trial was denied, and he appeals. We note that counsel representing him in this court did not appear for him at his trial in the district court.

Appellant first contends the trial court erred in overruling his motion to quash the information. The abstract does not show any motion to quash, nor does the only journal entry of judgment shown disclose any ruling. The state's brief does say that such a motion was filed but was never presented to the trial court nor ruled upon. The state of the record is not such that we can discuss the claimed error. State v. Clough, 70 Kan. 510, 79 P. 117; State v. Turner, 114 Kan. 721, 220 P. 254.

Appellant next contends the trial court erred in overruling his motion to compel the state to elect as to the several offenses attempted to be set forth in the two counts of the information. The abstract does not disclose any such a motion, nor any ruling on it. There is nothing for this court to consider. State v. Finney, 141 Kan. 12, 28, 40 P.2d 411.

Although not next in order, we take up appellant's contention the trial court erred in its instructions to the jury. A careful search of the abstract and counter-abstract fails to disclose either that the appellant requested the giving of any instruction, or made any objection to the instructions that were given, nor are the instructions shown in the abstract. In the brief certain instructions and portions of others are quoted and criticized in view of appellant's version of what the evidence showed. The matter of claimed error in the instructions is not properly before us. We have, however, examined the complaints made. There is nothing fundamentally wrong with any of the instructions quoted in full. Where only excerpts are given, we discern no prejudicial error, although it must be noted that where the context with other parts of the same instruction and with other instructions does not appear, there is no sound basis for definite determination. As bearing on the whole matter, see State v. Stiff, 148 Kan. 224, 226, 80 P.2d 1089; State v. Linville, 150 Kan. 617, 620, 95 P.2d 332, and State v. Carr, 151 Kan. 36, 46, 98 P.2d 393. The last case treats some of the contentions made in the present appeal.

Appellant also contends the trial court erred in the admission of evidence, and that the verdict is not supported by the evidence. Reference is made to considerable evidence concerning the admission of which complaint is made. We have examined the abstract and find that in only two instances was there any objection made in the trial court to the evidence now attacked. Where no objection is made to the admissibility of evidence in the trial court, there can be no review in this court. State v. Greenburg, 59 Kan. 404, 53 P 61; State v. Fox, 116 Kan. 180, 225 P. 1042; Snyder v. Rankin, 120 Kan. 186, 243 P. 287; State v. Netherton, 133 Kan. 685, 690, 3 P.2d 495. As is shown later, there was evidence that Gillen signed Edwards' name to two checks, one on the Burns State Bank, the other on the Peabody State Bank, and that these checks were worthless. The state called as witnesses officers of the two banks who...