State v. Wright
| Decision Date | 23 January 1965 |
| Docket Number | No. 44038,44038 |
| Citation | 194 Kan. 271,398 P.2d 339 |
| Parties | STATE of Kansas, Appellee, v. Ervin Sylvester WRIGHT, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. In a criminal action the rule against the admissibility of evidence of other similar but independent offenses should always be strictly enforced, and to justify any departure therefrom the evidence must come under one or more of the exceptions to the general rule as set forth in the Code of Civil Procedure, Laws 1963, Ch. 303, § 60-455.
2. The Rules of Evidence under Article 4 of the Code of Civil Procedure, Laws 1963, Ch. 303, are designed to have application to every proceeding, both criminal and civil, conducted by or under the supervision of a court, in which evidence is produced, except to the extent to which they may be relaxed by other procedural rule or statute applicable to the specific situation. (Code of Civil Procedure, Laws 1963, Ch. 303, § 60-402.)
3. Where the defendant in a criminal action is charged with feloniously forging a check and also with feloniously uttering such check, under G.S.1949, 21-608 and 21-609, evidence of similar but independent offenses of forgery for which the defendant was convicted prior thereto in violation of said sections of the statute is admissible, with proper instructions as to the limited purpose for which it may be used by the jury.
Charles D. Knapp, Coffeyville, argued the cause and was on the brief for appellant.
Monte K. Heasty, Asst. County Atty., argued the cause, William M. Ferguson, Atty. Gen., and B. D. Watson, County Atty., with him on the brief, for appellee.
This is an appeal from the district court of Montgomery County, Kansas, in a criminal action wherein the defendant was convicted by a jury on two counts of forgery in the second degree under G.S.1949, 21-608 and 21-609.
The only question raised on appeal is whether the trial court erred in admitting evidence of prior convictions in the State's case in chief.
In the lower court Ervin Sylvester Wright (defendant-appellant) was charged in an information containing two counts of forgery in the second degree, contrary to the provisions of 21-608 and 21-609, supra. In the first count he was charged with feloniously forging, and in the second with feloniously uttering, a check drawn on the First National Bank of Coffeyville, Kansas, on the 30th day of November, 1963. The check was made payable to Fred Morris and purportedly signed by Nerr Collins. The instrument contained the purported blank endorsement of Fred Morris and also an endorsement reading:
'PAY TO THE ORDER OF FIRST NATIONAL BANK COFFEYVILLE, Kansas FOR DEPOSIT ONLY KARBE'S COFFEYVILLE'
At the arraignment on the 6th day of April, 1964, counsel was appointed to represent the appellant and a plea of not guilty was entered to each of the counts. Subsequent to arraignment notice was served by the appellant upon the State that he intended to enter a plea of alibi, contending he was at Kansas City, Missouri, on the date in question, and expected to prove this fact by four witnesses who were endorsed on the notice.
Notice was also served by the State upon the appellant that in the event of his conviction an increased sentence would be requested pursuant to the provisions of G.S.1949, 21-107a.
Trial was had on the 7th day of May, 1964, to a jury and the appellant was convicted. Subsequent to the trial a motion for a new trial was duly heard and overruled, and the appellant was sentenced to serve a term of fifteen years on each count for a third-time felony conviction, said sentences to run concurrently.
While the notice of appeal discloses the appellant perfected an appeal pro se, such appeal has been duly perfected, and the record discloses Charles D. Knapp represented the appellant both in the trial of the action and on appeal in this court. The motion for a new trial properly raised the only question urged by the appellant on appeal.
Briefly summarized, the evidence of the State consisted of the testimony of two employees of Karbe's Super Market, both of whom positively identified the appellant as the passer of the check in question at Karbe's Super Market on the 30th day of November, 1963. Nerr Collins, the purported maker of the check, testified that he did not make the check nor authorize anyone else to do so, and did not know anyone by the name of Fred Morris. He further testified that he never had an account at the First National Bank of Coffeyville. An assistant cashier at the First National Bank of Coffeyville testified that the bank refused to pay the check when presented for payment because Nerr Collins was not a depositor at the bank.
Over objection evidence was introduced in the State's case in chief showing that in 1960 the appellant had been convicted of forgery in the second degree in the district court of Labette County, Kansas, in Case No. 1,646, entitled State of Kansas v. Ervin Sylvester Wright. A duly authenticated copy of the journal entry showing such conviction was introduced in evidence after being properly identified by a deputy clerk of the district court of Labette County. The deputy clerk testified that she was present at the time the case was determined in Parsons, Kansas, and identified the appellant sitting in the courtroom as Ervin Sylvester Wright--the party named in the journal entry.
The journal entry was read to the jury and disclosed that the appellant on the 15th day of April, 1960, entered a plea of guilty to each of two counts of forgery in the second degree in violation of G.S.1949, 21-608; that the court accepted the pleas and sentenced the appellant to the Kansas State Penitentiary for a period of not less than two years, nor more than twenty years on each count, said sentences to run concurrently.
In the instant case the appellant took the stand in the lower court to testify on his own behalf. He testified in substance that he was not in Coffeyville on the day in question; that he was last in Coffeyville in the month of October, 1963; that he was on parole from the Kansas State Penitentiary; that he did not write the check in question and first saw it at the preliminary hearing; that he did not know Nerr Collins, Fred Morris or the bank employees who testified in the State's case in chief.
On cross examination the appellant, among other things, testified he did not know where Karbe's grocery store was located; that he had forged checks before; that hd did not know how many; that he had spent time in the penitentiary; that he got out of the Kansas State Penitentiary on a forgery charge on June 3, 1963, spending two years, two months and eleven days, being released on probation.
No further witnesses were called by the appellant in the defense of his case.
The State called a rebuttal witness who testified she saw the appellant at a dance in Coffeyville on the night of November 29, 1963. She testified she knew the appellant a long time; that he lived in Parsons but used to come to Coffeyville often.
It is the appellant's contention that the evidence of prior convictions was introduced for the sole and only purpose of proving the appellant's "disposition to commit crime * * * as the basis for an inference that he committed another crime * * * on another specified occasion' in direct violation of the general rule laid down in Section 60-455 of the Code of Civil Procedure.'
The Code of Civil Procedure, Laws 1963, Ch. 303, § 60-455, reads:
'Subject to section 60-477 evidence that a person committed a crime or civil wrong on a specified occasion, is inadmissible to prove his disposition to commit crime or civil wrong as the basis for an inference that he committed another crime or civil wrong on another specified occasion but, subject to sections 60-455 and 60-488 such evidence is admissible when relevant to prove some other material facts including motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.' (Emphasis added.)
Chapter 303, Laws 1963, is commonly referred to as the new code of civil procedure, but it must be noted the rules of evidence incorporated therein (Article 4, Rules of Evidence) are designed to have application to every proceeding, both criminal and civil, conducted by or under the supervision of a court, in which evidence is produced, except to the extent to which they may be relaxed by other procedural rule or statute applicable to the specific situation. (Laws 1963, Ch. 303, § 60-402.)
The rule of evidence stated in 60-455, supra, as applied to criminal proceedings has not materially changed the case law as it has developed in Kansas prior to the enactment of 60-455, supra.
As early as the turn of the century the general...
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