State v. Shannon
| Decision Date | 23 January 1965 |
| Docket Number | No. 44012,44012 |
| Citation | 194 Kan. 258,398 P.2d 344 |
| Parties | STATE of Kansas, Appellee, v. James K. SHANNON, alias James K. Kelly, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. A trial court is not compelled to grant a change of venue or, in the alternative, to disqualify itself upon the affidavit of the defendant alleging prejudice of the judge, although no counter affidavit or proof is filed, where the judge is satisfied that his mind is free from prejudice and that the statements in the defendant's affidavit are without foundation.
2. Chapter 292, section 4, of the laws of 1963 construed to prescribe merely a permissive rule of evidence and the notice therein prescribed is not a prerequisite in the prosecution for the offense declared by section 1 of the same act.
3. Proof of an independent crime is admissible in the discretion of the court, and may be received in the state's case in chief, under proper instructions, if it is relevant to the proof of the guilt of the defendant for the crime with which he is charged. To be relevant it must prove or tend to prove identity of person or crime, to prove scienter or guilty knowledge, to prove intent, to show inclination or motive, to prove plan, scheme, or system of operation and to prove malice.
4. Upon conviction in a criminal action, the defendant is liable for the costs made in both the prosecution and defense of the case, and where costs are assessed against defendant, execution may be issued on the judgment.
5. In a criminal action the record is reviewed on appeal from a conviction and sentences and found to present no reversible error.
A. H. Harding, Independence, argued the cause and was on the briefs for appellant.
B. D. Watson, County Atty., argued the cause, William M. Ferguson, Atty. Gen., and Monte K. Heasty, Asst. County Atty., with him on the brief, for appellee.
Defendant (appellant) James K. Shannon, alias James K. Kelly, was convicted on nine counts of an information of issuing insufficient fund checks each in an amount in excess of fifty dollars in violation of the provisions of chapter 219, section 1, of the laws of 1963, and was sentenced to imprisonment in the Kansas State Penitentiary. From an order overruling his motion for a new trial, and the subsequent imposition of sentences, defendant has appealed. The facts insofar as pertinent to the questions raised on appeal are summarized.
The defendant, accompanied by his wife Ruth, moved to Coffeyville on February 9, 1964, and established a residence at a motel located in South Coffeyville, Oklahoma. On February 12 defendant went to the First National Bank of Coffeyville, Kansas, and opened a joint checking account with his wife by making a $200 cash deposit. At the time the account was opened the defendant gave the officer of the bank certain false information concerning his address and his employment. The bank, at defendant's request, made up a number of printed, or personalized, checks bearing the name of the defendant, James K. Shannon, and Ruth Shannon, his wife. Defendant deposited in this checking account sixty-five dollars in cash on February 17. On February 20 defendant deposited in this account two checks totaling $165 drawn on out-of-town banks. On February 21 he made a final deposit to this account of a check in the sum of $210 drawn on an out-of-town bank. The latter three checks were returned to the First National Bank unpaid and these amounts were credited back against defendant's checking account.
Most of the checks involved in the prosecution were written by defendant on February 21 and 22. The bank closed at 2:00 p. m. on the 21st, and remained closed during the week-end holidays. On Monday, the 24th, the bank, having discovered the out-of-town checks were uncollectible, rejected, due to insufficiency of funds, twenty to twenty-five checks drawn by the defendant on the account.
On March 18 the defendant was arrested upon a warrant charging him, under the provisions of the laws of 1963 aforementioned, with nine counts of feloniously issuing insufficient fund checks, which are the basis of this action. Defendant was given a preliminary hearing at the conclusion of which he was bound over to the district court of Montgomery county for trial.
The opening day of the April 1964 term defendant appeared for arraignment upon the nine counts of feloniously issuing insufficient fund checks, as set forth in the information filed by the county attorney. Defendant appearing without counsel and being indigent, the court appointed Jack L. Lively a member of the Montgomery County Bar, to represent defendant. Defendant then requested he be granted another preliminary hearing, contending that at the previous hearing he was not afforded counsel to represent him. The trial court, out of abundance of caution, granted defendant a second preliminary hearing, and, sitting as examining magistrate, heard the evidence and bound the defendant over to the district court for trial.
Subsequently defendant appeared with his court-appointed counsel for trial and entered a plea of not guilty to the charges in the information. A jury was selected, evidence was introduced by the state and the defendant, at the conclusion of which the case was duly argued to the jury which returned its general verdict of guilty on each of the nine counts of the information.
From the overruling of his motion for a new trial defendant was sentenced to the Kansas State Penitentiary and costs were assessed against him. Execution on the judgment for costs were subsequently issued. A levy was made on defendant's funds in the hands of the sheriff, which funds were paid to the clerk of the court to apply on the costs assessed against defendant.
Defendant first contends the trial court erred in overruling his motion for a charge of venue, or in the alternative, based upon defendant's affidavit that the trial court showed prejudice by remarks made at defendant's wife's preliminary hearing, should have disqualified itself.
The rule is well stated in State v. Hendrix, 188 Kan. 558, 363 P.2d 522, where it was held, after reviewing our decisions:
(Syl. p2.)
(See, also, State v. Cole, 136 Kan. 381, 51 P.2d 452.) It was also stated in State v. Tawney, 81 Kan. 162, 105 P. 218, that a court is not compelled to grant a change of venue upon the affidavit of the defendant alleging prejudice of the judge, although no counter affidavit or proof is filed, where the judge is satisfied that his mind is free from prejudice and that the statements in the defendant's affidavit are without foundation. Other than those matters treated in this opinion there is no indication in the record, nor does the defendant contend, that the trial court failed to give him a fair and impartial trial. The record clearly discloses the court was very cautious at all stages of the proceedings in protecting the rights of the defendant.
Defendant next contends the nine insufficient fund checks the defendant admitted writing, which were the basis of the prosecution of the respective nine counts of the information, were improperly admitted into evidence inasmuch as chapter 219, section 4, of the laws of 1963 provides for a sevenday notice to the maker or drawer when the drawee has refused payment because of insufficient funds, and that the exhibits were inadmissible because he had not received notice that the checks had not been paid by the drawee bank nor was he offered an opportunity to make payment.
The defendant was charged under the provisions of ...
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