State v. Lesco

• Decision Date: 10 April 1965
• Docket Number: No. 43940,43940
• Citation: 194 Kan. 555,400 P.2d 695
• Parties: The STATE of Kansas, Appellee, v. Albert L. LESCO, Appellant.
• Court: Kansas Supreme Court

Page 695

400 P.2d 695

194 Kan. 555

The STATE of Kansas, Appellee, v. Albert L. LESCO, Appellant.

No. 43940.

Supreme Court of Kansas.

April 10, 1965.

Rehearing Denied May 10, 1965.

Syllabus by the Court

1. This court has long adhered to the rule that the limitation upon the right of the state to use the testimony of an absent witness given at a former trial is dependent upon the foundation laid for the admission of such testimony and it must be made to appear that the witness who gave such testimony at the previous trial cannot by the exercise of reasonable diligence be produced.

2. Under the facts and circumstances disclosed by the record and stated in the opinion there was no error in permitting the reading of the testimony of an absent witness which was given at a former trial.

3. Under the provisions of K.S.A. 19-1306a the trial court did not err in transferring the trial of a criminal prosecution from Independence to Coffeyville following a mistrial.

4. In the trial of a criminal action the defendant is properly restricted from introducing evidence or injecting facts which do not constitute a defense and may tend to prejudice the jury.

5. The record in a prosecution under the provisions of K.S.A. 21-616 and 21-621 is examined and no trial errors are discovered which justify the granting of a new trial.

Russell Shultz, Wichita, argued the cause, Larry Kirby and James Nelson, Wichita, with him on the briefs, for appellant.

B. D. Watson, County Atty., Independence, argued the cause, Robert C. Londerholm, Atty. Gen., Topeka, and Monte K. Heasty, Asst. County Atty., Independence, with him on the briefs, for appellee.

HATCHER, Commissioner:

The defendant was convicted on ten counts of forgery in the third degree. Five of the counts were for writing forged instruments contrary to the provisions of what is now K.S.A. 21-616, and five of the counts were for passing forged instruments contrary to the provisions of what is now K.S.A. 21-621.

The general facts which are not seriously disputed will be stated.

The evidence developed that the defendant, Albert Lesco, went to Independence, Kansas in 1951, as a minister of the First Southern Baptist Church. He followed the ministry in Independence until 1960, when he resigned his position at the church and purchased an interest in a company called the Audio Library Company which he operated. In 1961, the defendant opened an appliance store in Independence, Kansas, under the name of the Lesco Sales Company. This store was engaged in the sale at retail of appliances, radios, televisions and like merchandise. In November of 1962, defendant opened a branch appliance store in Coffeyville, Kansas. At the opening of the store defendant gave away a door prize for which patrons of the store and others who went there signed their names on slips of paper and placed them in a box from which a drawing was made. These names were later used in the forgeries.

The Gibraltar Finance Company was engaged in purchasing chattel mortgages and conditional sales contracts from various dealers in the area. These contracts represented the sale of merchandise by the dealers, or store owners, to their customers on credit which were then sold with full recourse to Gibraltar Finance Company who would pay the dealer in cash something less than the entire contract price.

In 1961, the defendant as the Lesco Sales Company began selling such conditional sales contracts to the Gibraltar Finance Company. In the beginning the contracts sold to Gibraltar were legitimate in all respects. After a time, however, defendant found that he needed additional operating capital for his business. He went to the Gibraltar Finance Company and was told that they were not in a position to loan operating capital to him without security.

Defendant admitted that he thereafter started selling forged conditional sales contracts to the finance company. He identified the conditional sales contracts upon which he was charged as being ones on which he signed the names of the purported purchasers and assigned them to Gibraltar; that the persons whose names he forged existed, but that he did not have authority from them to sign their names to the contracts. He further testified, after identifying the contracts introduced in evidence as being spurious, that he did not know exactly how many contracts he forged and sold to the finance company, nor did he recall all the different names that he had placed on them. Employees of the finance company testified that of the contracts purchased by them from the defendant, 248 were forgeries. They totaled in excess of $100,000.00. They also testified that the actual cash loss to the finance company from the purchase of these contracts was some $70,000.00.

The officials of the finance company testified that when they first began purchasing conditional sales contracts from the defendant, they verified the contracts with each of the customers named thereon, and the customer made payments under the terms of the contracts directly to Gibraltar. Later this arrangement was changed. The defendant asked that he be permitted to make the monthly collections from the purchasers represented by each of the contracts he had sold to Gibraltar and he in turn would remit these payments monthly to the finance company. He stated that he desired to do this because it would permit more floor traffic through his stores and thus give him an additional opportunity to make sales and for the further reason that some people objected to dealing with finance companies. The company argeed to this change in arrangements and that thereafter it would send defendant a monthly list of the contracts and the current monthly charge due.

Defendant testified that after the manner of payment to Gibraltar was modified he made the monthly payments on the contracts and that at least part of these monthly payments were made from money he received from Gibraltar by selling them other forged contracts. The payments on all the forged contracts sold by appellant to Gibraltar Finance Company were current, or approximately so, up until the time of appellant's arrest.

The first question raised by appellant reads:

'Did the Court Err in Allowing the Reading of the Testimony to the Jury Made by a Witness at a Prior Hearing Without Requiring a Proper Foundation to be Laid, Which Testimony was Prejudicial to the Appellant, and Which was Read over the Objection of the Appellant?'

The determination of the question requires the consideration of certain specific facts.

This appeal is taken from the second trial of this appellant on the information herein. The first trial commenced on October 15, 1963, and ended on October 18, 1963, with the jury being unable to agree. At that trial the state presented Sharon Metcalf who testified that she had been employed by the county attorney of Montgomery County, Kansas during the months of May, June and July of 1963, and that on June 12, 1963, and June 18, 1963, she had been present when appellant was questioned by the county attorney concerning the transactions involved in this case; that the county attorney had advised the appellant of his rights, and that she had taken shorthand notes of the questions put to the appellant by the county attorney and the answers made by the appellant. In the first trial the court ruled that the statements made by the appellant were voluntarily made although later repudiated by the appellant, and allowed the statements to be read into the record in the testimony of Sharon Metcalf.

In the second trial Undersheriff Lessman testified that he had taken a subpoena to the address in Independence, Kansas where Sharon Metcalf lived while she resided in that city and, not finding her, called her at her place of employment in San Bernardino, California and that in response to, or as a result of, that phone call, Sharon Metcalf wrote a letter to the undersheriff in which she stated that she was a resident of San Bernardino, California, was married and had two children and would be unable to attend the trial from which this appeal is taken. The prior testimony was read to the jury under the testimony of Hazel S. Burris, the court reporter who took the record of the first trial. The appellant made timely objection to the reading of the transcript of this testimony on the grounds that no proper foundation had been laid. The objections were overruled by the court.

This court has long adhered to the rule that the limitation upon the right of the state to use the testimony of an absent witness given at a former trial is dependent upon the foundation laid for the admission of such testimony. It must be made to appear that the witness who gave such testimony at the previous trial cannot by the exercise of reasonable diligence be produced. (State v. McClellan, 79 Kan. 11, 98 P. 209; State v. Carter, 149 Kan. 295, 87 P.2d 818; State v. Eason, 163 Kan. 763, 186 P.2d 269; State v. Streeter, 173 Kan. 240, 245 P.2d 1177; State v. Brown, 181 Kan. 375, 312 P.2d 832; State v. Guthrie, 192 Kan. 659, 391 P.2d 95.)

Under the authority of the above cases...