State v. Eggers
| Decision Date | 22 March 1963 |
| Docket Number | No. 35327,35327 |
| Parties | STATE of Nebraska, Appellee, v. George EGGERS, Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court.
1. An offer to prove, to lay the foundation for the proper presentment of error in the exclusion of proposed testimony as answer to a question to which an objection is sustained, must be of matter which would have been admitted as relevant, responsive, and pertinent in answer to the rejected interrogatory.
2. Section 28-1214, R.R.S.1943, provides that the issuance of an insufficient fund check shall be presumptive evidence of intent to defraud and of knowledge of insufficient funds in the bank.
3. This is a rebuttable presumption and does not shift the burden of proof, and the presumption of innocence is still a matter of evidence to which the defendant is entitled, but along with it the jury is entitled to consider the presumption provided by this statute as to knowledge and intent.
4. The crime of obtaining money by means of an insufficient fund check is completed at the time the check is uttered and passed.
5. Unless subsequent transactions have some bearing on the transaction involved in the issuance of the check, they are immaterial and incompetent.
6. An offer of proof is required for the purpose of making it appear to the court that the question put to the witness calls for competent evidence. Unless it does so without equivocation, it is not error to overrule the offer.
7. It is not error to reject an offer not within the limits of the question on which the offer is based.
8. The question of the competency of a venireman to sit in the trial of a criminal case cannot be raised by a motion for a continuance.
9. It is the duty of a trial court to see that defendants in criminal cases are tried by a jury such that not even the suspicion of bias or prejudice can attach to any member thereof.
10. The right to challenge jurors for cause is a right which may be waived.
11. Where a motion for a directed verdict is made at the close of the evidence of the State in a criminal action, the introduction of evidence thereafter by the defendant waives any error in the ruling on the motion. The defendant, however, is not prevented from questioning the sufficiency of the evidence in the entire record to sustain a conviction.
William S. Padley, Gothenburg, for appellant.
Clarence A. H. Meyer, Atty. Gen., Richard H. Williams, Asst. Atty. Gen., Lincoln, for appellee.
Heard before WHITE, C. J., and CARTER, MESSMORE, YEAGER, SPENCER, BOSLAUGH, and BROWER, JJ.
This is a criminal action filed in the district court for Custer County, Nebraska, charging defendant, George Eggers, with the issuance of an insufficient fund check in the amount of $40. The jury returned a verdict of guilty. Defendant's motion for a new trial was overruled, and he was sentenced to 3 years in the State Penitentiary. He has perfected an appeal to this court.
On October 4, 1961, defendant purchased a load of hay from Robert L. McDowell, the complaining witness, which came to slightly over $200. The parties agreed on a figure of $200. According to the State's evidence, the defendant tendered $175 in cash, and, because he had no money to get home, McDowell gave him back $15, taking the $40 check in question. This check was dated October 4, 1961, and was drawn on the Crawford State Bank, Crawford, Nebraska. The check was returned, marked 'Not Sufficient Funds.' Defendant's ledger sheet at the Crawford State Bank, which was produced by the State, indicated that the defendant had a bank balance of 3 cents on October 4, the date the check was issued.
Defendant had been tried on a similar offense to the same jury panel on the 5th and 6th of March 1962, and was found not guilty. The information in this case was filed in the district court on March 6, 1962. Defendant was arraigned on March 30, 1962, and entered a plea of not guilty. His trial was set for April 26, 1962. On March 30, 1962, defendant filed a motion to quash the complaint and information, and to abate the prosecution because the cause was to be tried to the same jury panel as a previous complaint in a similar action. This was argued on that date and was taken under advisement by the court.
Defendant's counsel, who was a resident of Broken Bow, thereafter withdrew from the case. On April 19, 1962, defendant secured new counsel from Gothenburg, Nebraska. On April 25, 1962, a motion for a continuance was filed, supported by the affidavit of the new counsel. The motion was premised on three grounds: First, counsel had not had sufficient time to prepare for trial; second, the testimony of witnesses in South Dakota, which could only be secured by deposition, was required for a proper defense, and time was insufficient to secure the testimony; and, third, defendant could not have a fair trial before a jury selected from the present panel, because he had previously been tried to a jury selected from said panel on a similar offense.
On April 26, 1962, the motion to quash and abate was overruled. The motion for a continuance was then heard and overruled, and a jury was impaneled. The defendant made no further objections to the panel and none of the jurors selected were challenged for cause.
Defendant sets out six assignments of error. The first one is as follows: 'The Court erred in excluding competent, relevant, material and proper evidence offered by the plaintiff in error with respect to the issuance of said check and the fact that it was to be retained by the payee until the return of the Plaintiff in Error to purchase a second load.'
His sixth assignment of error, which will be considered with the first one, is as follows: 'The court erred in refusing to admit testimony with respect to the entire transaction and dealings as between the complaining witness and the accused, offer having been made to prove with respect to the facts surrounding the transaction.'
There is no question but that the trial court attempted to restrict the defendant in his defense to matters which occurred before or at the time of the issuance of the check. We find, however, only two offers of proof in the bill of exceptions.
The first offer is on the cross-examination of the complaining witness, and was made when the court sustained an objection to two questions. The record is as follows: While the questions were proper as foundational questions, the offer shows the error to be without prejudice. Clearly, the offer is much broader than the question and is within the rule announced in Perkins v. Tilton, 53 Neb. 440, 73 N.W. 930, that: 'An offer to prove, to lay the foundation for the proper presentment of error in the exclusion of proposed testimony, as answer to a question to which an objection is sustained, must be of matter which would have been admitted, as relevant, responsive, and pertinent, in answer to the rejected interrogatory.'
Defendant, by proper questions, could have elicited everything that was said and done in the transaction which resulted in the giving of the check. The quality of the load of hay and his reason for not returning are immaterial to the question involved in this prosecution.
Section 28-1214, R.R.S.1943, provides that the issuance of an insufficient fund check shall be presumptive evidence of intent to defraud and of the knowledge of insufficient funds in the bank. This is a rebuttable presumption and does not shift the burden of proof, and the presumption of innocence is still a matter of evidence to which defendant is entitled, but along with it the jury is entitled to consider the presumption provided by this statute...
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