State v. Maxwell
| Decision Date | 04 May 1940 |
| Docket Number | 34727. |
| Citation | 102 P.2d 109,151 Kan. 951 |
| Parties | STATE v. MAXWELL. |
| Court | Kansas Supreme Court |
Syllabus by the Court.
An information charging that defendant did falsely make, forge and counterfeit certain false and forged writings signatures, and indorsements was not bad for "duplicity" because it charged defendant with making, with forging, and with counterfeiting.
An information charging that defendant did falsely make, forge and counterfeit certain false and forged writings signatures, and indorsements was not bad on ground that defendant could not tell whether he was charged with forging the faces of the writings, the signatures of the payees, or the indorsements, or all three, where it was sufficiently clear from the information as a whole that the writings or signatures complained of were the indorsements of the names of the payees.
In prosecution against chief deputy clerk of district court for forging endorsements on four checks and uttering three of them, trial court did not abuse its discretion in restricting defendant's examination of jurors on voir dire with respect to their political beliefs and religious faiths, whether, for any political or religious reason, they felt that they could not serve as fair and impartial jurors, though the clerk of the district court, who was the state's witness, was of a different religious faith than defendant. Gen.St.1935, 62-1718.
In felony prosecution, defendant's absence from two conferences in trial court's private chambers while defendant was at liberty on bail did not impair validity of guilty verdict nor nullify the proceedings, where nothing prevented defendant from accompanying his counsel to the conferences, and when trial court observed that defendant had not come into his chambers requested that defendant be brought in, and former proceedings of conferences were read to defendant, and formal ruling on question in controversy was made in the courtroom in defendant's presence. Gert.St.1935, 62-1411; Const.Bill of Rights, § 10.
Where a defendant, when he is at liberty on bond, fails to take advantage of his privilege of being present during his prosecution, there may be a "waiver" of the privilege. Gen.St.1935, 62-1411; Const.Bill of Rights, § 10.
Neither the Constitution nor the statute giving a defendant the right to be present at a prosecution requires that a defendant be compelled to attend. Gen.St.1935, 62-1411; Const.Bill of Rights, § 10.
Where cross-examination by defendant of state's witnesses was entirely outside the direct examination, state's objections thereto were properly sustained.
The proper extent of cross-examination by defendant of the state's witnesses rests in the sound discretion of the trial court, and unless it appears that such discretion has been abused, and that substantial rights of the complaining party have been prejudicially affected, a court of review will not interfere.
In prosecution for forging endorsements on four checks and uttering three of them, trial court did not abuse its discretion in refusing to permit defendant, on cross-examination of state's handwriting expert, to test that witness' capacity as an expert by introducing, as a basis for comparison, handwritings which were not in evidence, and which were not admitted to be or clearly proven to be defendant's handwritings.
Where, in prosecution under information with seven counts, one of the counts had been ordered stricken from the information at the beginning of the trial, no conviction should have been had on that count.
The constitutional immunity from second jeopardy to one accused of crime is a personal privilege which may be waived. Const.Bill of Rights, § 10.
Where motion to strike count involving certain check was sustained in former prosecution for forging endorsements on checks and uttering them, but defendant, in subsequent prosecution, did not move to strike count involving the same check, there was a "waiver" by him of his constitutional immunity from second jeopardy. Const.Bill of Rights, § 10.
Evidence sustained conviction of chief deputy clerk of district court for forging endorsements on checks.
Evidence sustained conviction of chief deputy clerk of district court on two counts charging him with uttering checks with forged endorsements.
Possession of a forged instrument by one who utters or seeks to utter it or otherwise to realize on it or profit by it, without a reasonable explanation of how he acquired possession of it, warrants an inference that he himself committed the forgery or was a guilty accessory to its commission.
The statute providing that when persons of skill, or experts, be called as to the genuineness of a writing, three witnesses shall be required to prove the fact, does not apply when, as in a forgery prosecution, there is other evidence than that of a single expert that the writing constituted a forgery. Gen.St.1935, 62-1427.
In forgery prosecution, it was the province of the jurors to compare the handwritings introduced in evidence and to exercise their own judgment concerning the genuineness of indorsements in order to determine whether defendant forged the indorsements.
County attorney's request to cross-examine his own witness concerning that witness' testimony on a former trial was properly granted and was not premature, where witness had already materially weakened the effect of important testimony he had given during a former trial, the same trial court had heard the testimony of the witness in the former trial, and the surprise of the county attorney was obvious.
In prosecution of chief deputy clerk of district court for forging endorsements on four checks of the clerk of the district court and uttering three of them, giving of instruction on subject of fictitious persons was not error on ground that payees of two of the checks involved were fictitious persons, where evidence disclosed that there were no cases pending in district court involving those payees, and that there was no account on which checks could have been executed to them.
In prosecution of chief deputy clerk of district court for forging endorsements on four checks of the clerk of the district court and uttering three of them, instruction that it was not incumbent on the state to prove want of authority to indorse checks, if the jury found that the names of the payees of the checks were fictitious, was proper.
The record in a criminal action which charged forgery and uttering of checks examined and held: (1) The amended information was not bad for duplicity; (2) no abuse of judicial discretion, or prejudice to substantial rights of the defendant, is disclosed in connection with the alleged restricted examination of jurors on their voir dire touching their religious or political faith; (3) the absence of the defendant from two conferences held in private chambers of the trial judge, when defendant was at liberty on bail and under circumstances narrated in the opinion, did not nullify the proceedings nor impair the validity of the verdict; (4) no reversible error appears in connection with the alleged restricted cross-examination of the state's witnesses; (5) the cross-examination by counsel for defendant of an expert handwriting witness was not unduly restricted by denying the right to cross-examine the witness, for the purpose of testing his ability or capacity as an expert, concerning specimens of handwriting which formed no part of his direct examination and which had not been admitted or proven to be the handwriting of the defendant, in the instant case; (6) the motion to discharge defendant at the conclusion of the state's evidence was properly overruled, except as to the count which charged uttering of the "Jackson or Jacksen" check, and as to that count the motion should have been sustained; (7) the defendant, although discharged in a former trial of the action as to a certain count contained in the instant amended information, waived his constitutional privilege of immunity from second jeopardy; (8) the statute (G.S.1935, 62-1427) which provides that when persons of skill, or experts, be called as to the genuineness of a writing three witnesses shall be required to prove the fact, does not apply when, as in the instant case, there is other evidence than that of a single expert that the writing constituted a forgery; (9) in view of the clear showing of surprise by the county attorney concerning the testimony of a state's witness who had testified at a former trial, the request of the county attorney to cross-examine the witness was properly allowed and, under facts narrated in the opinion, the cross-examination was not premature; (10) the complaint relative to the charge, proof and instructions pertaining to the forging of names of fictitious persons is, under facts narrated in the opinion, without substantial merit; (11) no reversible error is discerned in the instructions given or in the refusal to give those requested.
Appeal from District Court, Wyandotte County, Division No. 2; Willard M. Benton, Judge.
Howard B. Maxwell was convicted of forging endorsements on four checks and uttering three of them, and he appeals.
Judgment affirmed, except as to one count charging the uttering of a certain check, and, as to that count, judgment and sentence ordered modified in accordance with opinion.
A. J. Herrod and C. W. Trickett, both of Kansas City, for appellant.
Jay S. Parker, Atty. Gen., A. B. Mitchell, Asst. Atty. Gen., and Arthur J. Stanley, Jr., Co. Atty., and Martin C. Crawn, Asst. Co. Atty., both of Kansas City, for appellee.
This was an action in which defendant was charged with forging the signature, that is, the endorsement of the name of the payee on each of four checks, and with uttering...
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State ex rel. Shetsky v. Utecht, 34839.
...v. Wamire, 16 Ind. 357;Sahlinger v. People, 102 Ill. 241;Price v. State, 36 Miss. 531, 72 Am.Dec. 195 (verdict); State v. Maxwell, 151 Kan. 951, 102 P.2d 109, 128 A.L.R. 1315;Ah Fook Chang v. United States, 9 Cir., 91 F.2d 805;State v. Aikers, 87 Utah 507, 51 P.2d 1052;People v. La Barbera,......
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...Wamire, 16 Ind. 357; Sahlinger v. People, 102 Ill. 241; Price v. State, 36 Miss. 531, 72 Am.Dec. 195 (verdict); State v. Maxwell, 151 Kan. 951, 102 P.2d 109, 128 A.L.R. 1315; Ah Fook Chang v. United States, 9 Cir., 91 F.2d 805; State v. Aikers, 87 Utah 507, 51 P.2d 1052; People v. La Barber......
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