State v. Seward

• Decision Date: 07 June 1947
• Docket Number: 36572.
• Citation: 163 Kan. 136,181 P.2d 478
• Parties: STATE v. SEWARD.
• Court: Kansas Supreme Court

181 P.2d 478

163 Kan. 136

STATE v. SEWARD.

No. 36572.

Supreme Court of Kansas

June 7, 1947

Rehearing Granted July 14, 1947.

Appeal from District Court, Geary County; James P. Coleman, Judge.

Harry Seward, Jr., was convicted of forgery by endorsing the name of another to the check and of obtaining property under false pretenses by means of such forged check and he appeals.

Reversed with directions to grant a new trial.

Syllabus by the Court.

1. Defendant was charged in one count of an information with forging the name of the payee on the back of a check and thereby obtaining the face amount of the check and in another count with obtaining money under false pretenses by means of the same check-- Held, no error.

2. At the trial of the defendant on the foregoing information a handwriting expert was permitted, while testifying, to use enlarged photographs of various specimens of handwriting and to explain these specimens to the jury other than by answering direct questions of counsel-- Held, no error.

3. During the trial of defendant on the information described in the first paragraph of this syllabus, a purported confession claimed to have been signed by defendant was admitted in evidence and handed to the jury over the objection of defendant; the trial court refused to consider before overruling the objection, the question of whether the confession was freely and voluntarily made without force or coercion, Held, it was the duty of the trial court before admitting the confession in evidence to hear evidence and decide as a preliminary matter whether the confession was freely and voluntarily made without force or coercion.

4. In the trial of a case such as that described in the first paragraph of this syllabus, it was the duty of the trial court, having decided that a purported confession was admissible, to instruct the jury that it should consider the truth or falsity of the confession along with the other evidence in the case.

5. In a prosecution such as that described in the first paragraph of this syllabus, the defendant, a youth seventeen years old was, on his arrest, taken to police headquarters and questioned without his father and mother being advised without being advised of his right of counsel and was directed to sign his name on several pieces of paper without being told that whatever he said or wrote would be used against him, Held, that under all the surrounding facts and circumstances it was error for the trial court to admit these specimens of defendant's handwriting into the record for the purpose of comparison by a handwriting expert.

Elisha Scott, of Topeka, for appellant.

H. W. Harper, of Junction City (Robert A Schermerhorn, County Atty., and Lee Hornbaker, both of Junction City, and Edward F. Arn, Atty. Gen., on the brief), for appellee.

SMITH Justice.

This was a criminal prosecution. The information was in three counts. The first charged defendant with stealing a check drawn upon The Central National Bank of Junction City, Kansas, against the account of the Martin K. Eby Construction Company and payable to Ira L. Wheeler in the sum of $75.68; in the second count he was charged with forgery in that he endorsed the name of Ira Wheeler, the payee, on the back of the check; and in the third count he was charged with obtaining property under false pretenses by means of the check. The defendant was convicted on the second and third counts. He has appealed.

At the trial the defendant moved to quash the information because it was duplicitous on the ground that the three counts concerned only one check. The first count was dismissed at that time. The trial proceeded as to the second and third counts. At the end of the trial the defendant filed a motion for a new trial on ten grounds. This motion was overruled. The application of the defendant for parole was denied and the defendant duly sentenced to the Kansas State Industrial Reformatory.

The defendant argues his motion to quash should have been sustained because the information in the first count charged the defendant with stealing the check; and in the third count with using the same check for obtaining money under false pretenses. The trouble about that argument, in the first place, is that just as the trial was about to start the state dismissed the information as to the first count, leaving counts 2 and 3, upon which the defendant was tried. Furthermore, duplicity in an information is generally defined as the joinder of separate and distinct offenses in one and the same count. That is not the case here. Forging the name of the payee on the back of the check was one distinct offense in violation of a particular statute. The commission of that offense could be proved by competent evidence bearing on that question. Obtaining property under false pretenses by means of the check was a separate and distinct offense, a violation of a different statute, and must be established by evidence which might not of necessity be competent as to the offense charged in the other count. Under such circumstances such offenses may be charged in the same information but in different counts. See 42 C.J.S., Indictments and Informations, § 162, page 1112; 27 Am.Jur. 683; State v. Emory, 116 Kan. 381, 226 P. 754; State v. Harris, 103 Kan. 347, 175 P. 153.

Defendant next argues that the trial court erred in refusing to permit his counsel to cross-examine a handwriting expert before the expert testified as to a comparison between some admitted writing of the defendant and the writing that appeared on the back of the check, and that the court erred in connection with the testimony of this expert in permitting the witness to use some enlarged photographs of handwriting fof the purpose of demonstrating his evidence to the jury and to testify otherwise than by means of questions and answers. We have examined the testimony of the expert in the record and, outside of a matter we shall notice presently having to do with the manner in which specimens of handwriting for purposes of comparison were obtained, can find no error in connection with it.

In State v. Ryno, 68 Kan. 348, 74 P. 1114, 64 L.R.A. 303, we approved the use of a blackboard by a handwriting expert to make his testimony more clearly understood by the jury. See, also, Ort v. Fowler, 31 Kan. 478, 2 P. 580, 47 Am.Rep. 501.

The above are the main points argued by counsel for the defendant and were they the only points in the case we would have no difficulty in affirming the judgment.

On his motion for a new trial, however, the fifth ground thereof was that the court admitted illegal testimony into the record over the objection of the defendant and the seventh ground was that the court committed an error by refusing to permit the attorney for the defendant to examine the chief of police and the sheriff before an alleged statement or confession of the defendant was read to the jury.

The defendant calls our attention in his brief to the fact that he was only seventeen years old at the time of his trial; that he was locked in jail and held until late that night without being permitted to talk with his parents or a lawyer but was confronted with the chief of police and others; that they claimed he made a written confession, which he claimed was not a confession and was not made freely and voluntarily and without promise or threats or coercion and that he was caused to sign his name on blank pieces of paper without being advised that these specimens of writing would be used against him when the handwriting expert was asked to testify as to the defendant's admitted handwriting and the handwriting on the back of the check.

No extended argument is made on these points in the brief of appellant; neither is the abstract furnished us by the appellant and the state adequate to enable us to pass upon them. Defendant was, however, only seventeen years old at the time the events referred to transpired, and we have out of an abundance of caution sent for and examined the transcript of the proceedings.

The state proved that defendant brought the check in question into a jewelry store; that he said he was the person who was named payee; that he signed the name of the payee on the back thereof and received some merchandise and some cash in exchange therefor. The state also introduced testimony to prove that defendant was not the payee, and that the signature written on the back of the check by defendant was not his own. The merchant at whose store the check was cashed testified that he saw the defendant at the police station shortly after he was arrested; that the defendant asked that he be turned loose so that he could earn money and pay for the check. The merchant then testified that while he was there defendant signed his name to a statement admitting that he had written the endorsement on the check. Counsel for the state then offered this statement in evidence. At this time counsel for the defendant objected to the offer on the ground that before the confession was admitted he desired to interrogate the witness who was being asked to identify it.

Counsel for defendant insisted that he did not have to prove that the confession was made as the result of coercion; he argued that the state had the burden of proving that it was not the result of coercion or threats. On the request of counsel for defendant, the trial court excused the jury. Thereupon there was an extended argument and colloquy between counsel for both sides and the court as to the admissibility of this writing. Counsel for defendant insisted that the paper showed on its face that it was not in the words of defendant; that defendant had just told him that he had signed several pieces of paper in the office of the chief of police but none had any...