State v. Lucken
| Decision Date | 21 May 1915 |
| Docket Number | 19,330 - (16) |
| Citation | 152 N.W. 769,129 Minn. 402 |
| Parties | STATE v. CHRIST LUCKEN |
| Court | Minnesota Supreme Court |
Christ Lucken was indicted by the grand jury of the crime of forgery in the second degree, tried in the district court for Chippewa county before Qvale, J., and a jury, and convicted. From an order denying his motion for a new trial on the ground of errors occurring at the trial and that the verdict was not justified by the evidence and from an order denying his motion for a new trial on the ground of newly discovered evidence, defendant appealed. Affirmed.
Forgery -- evidence of other forgeries.
1. In the trial upon a charge of forgery, when the identity of the accused and his guilty intent are necessary to be proven, it is proper for the state to prove that he passed other forged checks, similar in appearance, upon other persons near the same place and at about the same time, and the fact that he had been tried and acquitted upon some criminal charge in relation to these other checks would not render the facts in connection with passing or uttering them inadmissible.
Forgery -- evidence of handwriting.
2. Conceding that a defendant charged with forgery may offer samples of his ordinary handwriting solely as standards of comparison, the genuineness of such samples, unless conceded must be established by clear and satisfactory proof, and the trial court's ruling will not be reversed unless palpably erroneous. In this case one of the three samples, offered together, was objectionable as being made after defendant's arrest, and, as to all, more satisfactory evidence bearing upon their genuineness, although readily obtainable, was not offered, hence no error in the ruling excluding the proffered samples.
Appeal and error -- ruling of court -- withdrawal of question.
3. Error may not be predicated upon a ruling made when the record shows acquiescence and an immediate withdrawal of the question ruled on.
Record of trial -- assertion of prosecuting officer.
4. An alleged allusion by the county attorney to defendant's failure to testify is not ground for reversal, unless the record directly states that the allusion was made.
Evidence -- search for technical error.
5. The evidence of defendant's guilt is so ample and convincing that the appellate court should not search for technical errors not raised by the assignments of error nor discussed in the briefs.
New trial.
6. No abuse of discretion is apparent in the court's denial of a new trial on the ground of newly discovered evidence.
C. D Bensel, for appellant.
Lyndon A. Smith, Attorney General, John C. Nethaway, Assistant Attorney General, and A. E. Kief, County Attorney, for respondent.
Defendant was convicted of forging a bank check. Thereafter he moved for a new trial upon a settled case. The motion was denied by an order filed in November, 1914. Subsequently he moved for a new trial on the ground of newly discovered evidence. This motion was also denied. Defendant appeals from both orders.
Between 6 and 8 o'clock on the evening of December 26, 1913, four spurious bank checks, each in an amount of near $20, purporting to be drawn by Peter W. Samdahl, upon the First National Bank of Montevideo, were presented to and cashed by four different business men in Montevideo, Minnesota. The indictment upon this trial concerned a check for $22.55 (Exhibit A in the record.) The testimony of the state tended to show that defendant came to the store of Parks & Qvien in said city on the evening in question, bought a ladies sweater for three or four dollars, and then presented this check (Exhibit A), in payment. The manager of the store got the check cashed, returning the difference to defendant in money. It appeared in evidence that at this time Peter W. Samdahl, the purported maker of the check, was away from the state. The defendant was then occupying the house which Samdahl had, shortly before, vacated. The state, over the objection of defendant, was permitted to offer testimony tending to prove that, within an hour or two of the time of the transaction with Parks & Qvien, defendant presented three other bank checks, having the same signature, being of nearly the same amount, drawn upon the same kind of blanks, and in apparently the same handwriting, to three different business men in the vicinity, and in each case, in a similar manner, realized around $15 cash. And these checks, marked Exhibits B, C and D, were allowed to go to the jury over defendant's protest.
From questions put by defendant's counsel and his objections it may be inferred that, at least twice before, defendant had been tried either for forging, or for uttering, two of these last mentioned checks, and had been acquitted. But there is no proper proof of such acquittal, nor of the charge upon which defendant was tried. The reception of these Exhibits B, C and D, and the evidence of the transactions in relation thereto, present one of the main errors complained of.
There can be no doubt that in the trial of crimes wherein it is necessary to prove the identity of the accused, or a guilty intent, it is permissible for the state to introduce evidence of other like acts of the accused so closely connected in time, place and manner, that the legitimate inference is that he, and none other, is guilty of the crime upon which he is being tried, and that it was committed with guilty intent. State v. Rose, 70 Minn. 403, 73 N.W. 177. This proposition is not denied by counsel for defendant, but it is insisted no evidence should have been received concerning the checks for the forgery, or uttering, of which he had been acquitted. There are two complete answers to the contention. There is no proof of other indictments or acquittals in the record. It is only to be inferred from the questions and objections of counsel. This is not proof. Again, the law is not as claimed. In State v. Robinson, 16 N.J. Law, 507, the syllabus is: "On the trial of an indictment for uttering a forged note, it is competent evidence, in order to show a scienter, to prove that the prisoner uttered another forged note of the same bank on the same day, although he had been acquitted on a trial for that offense." Bell v. State, 57 Md. 108, contains an able discussion of the proposition and announces the conclusion that the acquittal upon an indictment charging forgery of a check does not preclude the state from showing the facts in respect thereto on the trial of the same person upon another charge of forgery of a check, committed about the same time. To the same effect is People v. Frank, 28 Cal. 507; McCartney v. State, 3 Ind. 353, 56 Am. Dec. 510. The only authority lending any countenance whatever to defendant's contention is State v. Tindal, 5 Harr. (Del.) 488, where the court stated that, if an acquittal had been properly proven, defendant would have been entitled to an instruction to disregard the evidence relating to the transaction on which he was acquitted. The decision is not in point here. We do not intimate that, after the state had introduced the facts attending the passing of Exhibits B, C and D, defendant could not then have shown that he had been indicted, tried and acquitted of forging, or uttering, those checks. Mitchell v. State, 140 Ala. 118, 37 So. 76, 103 Am. St. 17.
Defendant's wife as witness for the defense testified that she had seen defendant write "thousands of times" and knew his handwriting; that the three checks, marked Exhibits 3, 4 and 5, were written by him. The record then reads Two of these checks were dated some months prior to the alleged forgery and one several months subsequent to the arrest of defendant. As to the last mentioned it was inadmissible in favor of defendant being a writing created post litem motam. Hickory v. United States, 151 U.S. 303, 14 S.Ct. 334, 38 L.Ed. 170. No other...
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