State v. Pratt

• Decision Date: 10 November 1923
• Docket Number: 24,731
• Citation: 114 Kan. 660,220 P. 505
• Parties: THE STATE OF KANSAS, Appellee, v. S. J. PRATT, Appellant
• Court: Kansas Supreme Court

220 P. 505

114 Kan. 660

THE STATE OF KANSAS, Appellee, v. S. J. PRATT, Appellant

No. 24,731

Supreme Court of Kansas

November 10, 1923

Decided July, 1923.

Appeal from Riley district court; FRED R. SMITH, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. QUALIFICATION OF JURORS--Person of Foreign Birth--Competency Question for Trial Court. Whether a person of foreign birth who has lived in this country many years; who speaks English with his English neighbors; understands the common English words and reads English "some", is sufficiently familiar with the English language to be a competent juror is ordinarily a question for the trial court. His decision thereon will not be disturbed unless clearly erroneous.

2. EMBEZZLEMENT--Evidence--Proper Cross Examination of Witness. The rule that upon cross examination the whole of a conversation may be brought out in regard to which there has been any evidence in chief does not authorize testimony concerning matters not relevant to the issues on trial, even though a part of the same conversation.

3. SAME--Felonious Intent in Embezzlement Charges. The felonious intent constituting in part the crime of embezzlement is the intent to take or appropriate, convert or use, the property of the principal by the agent in violation of his duties, and it is none the less embezzlement if at the time he has an intention, or hope, or desire, to restore it at a later date.

4. SAME--Motive Prompting Embezzlement No Defense. The motive which prompted the embezzlement is not a matter of defense.

5. SAME--Facts Constituting Embezzlement. When one applies money or property left in his custody to a use which he desires to make of it, it is applied to his own use.

R. P Evans, George Clammer, both of Manhattan, J. V. Humphrey and Arthur S. Humphrey, both of Junction City, for the appellant.

Charles B. Griffith, attorney-general, John F. Rhodes, assistant attorney-general, and A. M. Johnston, of Manhattan, for the appellee.

Harvey J. Johnston, C. J., Hopkins, J., not sitting.

OPINION

HARVEY, J.:

S. J. Pratt was convicted upon an information charging in one count that he embezzled $ 10,000 worth of government bonds which came into his possession as secretary-treasurer of the Home Building & Loan Association at Manhattan, Kansas, and in another count with having embezzled, abstracted and misapplied $ 4,170 deposited in the Citizens State Bank of Manhattan, Kansas, of which bank he was president. He has appealed and complains, first, that his challenge for cause should have been sustained to one of the jurors who sat in the case. The juror, Fred Brucks, was born in Germany, was fifty-two years old, had lived in this country twenty-six years and in the county seven years. He was a farmer and lived in a part of the county remote from the county seat and usually did his trading in another county. He had heard nothing about the facts of the case, did not know the defendant, and had no bias or prejudice against him. The challenge was based solely upon his imperfect understanding of the English language. His examination disclosed that he spoke German at home and at some of the stores where he traded, but he spoke English with his English neighbors, could read English "some" and understood the common English words. To several of the questions asked him upon his examination he answered, "I can't understand" or "I don't know what that means," or gave some similar answer. In this state, while a knowledge of the English language is not made a statutory requirement for jury service, the business of the courts is conducted in the English language, and of necessity one who participates in the proceedings of the court should be sufficiently familiar with the English language that his participation in the business of the court may be done with intelligence.

A juror of foreign birth who cannot understand the language in which the business of the court is conducted is as much disqualified to serve as a juror as though he were deaf or had some other infirmity which made it impossible for him to participate intelligently in the business before the court. ( Sullenger v. The State, 79 Tex. Crim. 98, 182 S.W. 1140; State v. Powers, 181 Iowa 452, 164 N.W. 856; In Re Impannelling of Petit Jury, 6 P.R. Fed. 685; State v. Push, 23 La. Ann. 14; Fisher v. The City, 4 Brewst. [Pa.] 395.)

But a juror, though of foreign birth, who understands the English language well enough to understand the testimony, the argument of counsel, and the instructions of the court, is not disqualified for that reason. (Essary v. The State, 53 Tex. Crim. 596, 111 S.W. 927; Myers v. The State, 77 Tex. Crim. 239, 177 S.W. 1167; Cromer v. Border's Coal Co., 152 Ill.App. 555; State v. Dent et al., 41 La. Ann. 1082, 7 So. 694; State v. Casey, 44 La. Ann. 969, 11 So. 583; State v. Duestrow, 137 Mo. 44, 38 S.W. 554.)

Naturally there are instances where a juror of foreign birth has some knowledge of the English language and in such a case it has usually been held that it is for the court to decide whether he is competent to comprehend all that might be said in his hearing. (People v. Davis, 4 Cal. Unrep. 524, 36 P. 96; Atlas Mining Co. v. Johnston, 23 Mich. 36.) In this state it is the rule that the qualifications of a juror who has testified in regard thereto in court is a question of fact and a matter of judicial discretion to be determined by the court, and its decision thereon will not be disturbed on appeal unless it clearly appears that the court has made a mistake or abused its discretion. (The State v. Molz, 91 Kan. 901, 139 P. 376; The State v. Stewart, 85 Kan. 404; 116 P. 489; see, also, Schmana v. Swift & Co., 113 Kan. 340, 214 P. 567, and cases there cited.) We think the court might have excused this juror without committing error (The State v. Miller, 29 Kan. 43), but the court saw this juror and had an opportunity to observe his apparent intelligence and many of his answers show comprehensive knowledge of our language. Some of his answers which indicated that he did not understand might have been from a lack of his familiarity with proceedings in court. Taking the entire record, we cannot say that the court abused its discretion, nor that the juror was disqualified as a matter of law.

On the count charging embezzlement of the bonds, the evidence showed in substance that the Building & Loan Association purchased $ 10,000 worth face value of the second Liberty Loan bonds of the United States, which passed into the custody of the appellant as secretary-treasurer of the association. Without any authority to do so and without the knowledge of the directors and other officers of the Association, appellant sold these bonds in January, 1920, in Kansas City. The money was not used for the benefit of the Association. In fact, appellant concealed his disposition of these bonds from the Association until some time in May or June, 1921. At two or three of the meetings of the Board of Directors of the Association held in the meantime, in which they were checking up the assets of the Association, appellant substituted other bonds which he had taken without authority from the envelopes or private boxes of depositors of the bank of which he was president, and counted those at the board meeting as the bonds of the Association. When it was discovered by the directors or officers of the Association that the bonds had been taken, appellant in several conversations admitted to various officers of the Association and to the bank commissioner that he had taken the bonds and sold them about a year and a half before. At the trial evidence of these admissions was offered in evidence. It would seem that at the same conversations at which these admissions were made there had been talk by the appellant of making restitution by giving a mortgage upon his home, or in some other way. At the trial the court permitted the evidence of these conversations concerning the disposition of the bonds, but excluded that portion of the conversations relating to his making restitution. This is complained of, appellant contending that where a part of the conversation has been admitted in evidence it is competent for the other side upon cross-examination or re-examination to bring out the entire conversation, and in support of that he cites Wigmore on Evidence, 2d Ed., § 2115, where it was said:

"The general phrasing of the principle, then, is that when any part of an oral statement has been put in evidence by one party, the opponent may afterwards (on cross-examination or re-examination) put in the remainder of what was said on the same subject at the same time."

But the same author says, § 2113:

"In the definition of the limits of this right, there may be noted three general corollaries of the principle on which the right rests, namely, (a) no utterance irrelevant to the issue is receivable . . . This limitation is obvious enough; because the sole purpose in listening to the remainder is to obtain a correct understanding of the effect of the part first put in; and no remaining part, even if contained in the same breath or the same writing, can furnish such aid if it is wholly...