80 Kan. 473 | Kan. | 1909
The appellant alleges error in trying the issue upon the plea in abatement without a. jury. It is doubtful whether any issue of fact for a jury was presented under this plea, as the question whether a preliminary examination had been held or waived could be determined from the transcript of the justice’s proceedings which was offered in evidence by the appellant. There was no request for a jury and no exception taken to a trial by the court. Moreover, the information, to which this plea was directed was afterward quashed.
A motion to quash and a plea in abatement were filed to the information upon which the appellant was finally tried. The motion was denied, and thereupon, being arraigned, he pleaded not guilty, without asking for a hearing upon his plea in abatement or calling the attention of the court thereto in any manner. The cause was then continued to the next term. The appellant alleges that the court erred in not disposing of this plea in abatement before proceeding further. This claim can not be sustained. When called upon to plead the appellant entered his plea of not guilty, and thereby waived the plea in abatement, which, although filed, was not presented.
Error is also alleged in denying the motion to quash the information. It is argued that the motion should have been sustained because in the warrant the appellant had been charged only with forging the check, and no preliminary examination had been held or waived upon the charge of passing it. This is an erroneous interpretation of the warrant. Without division into counts it charged that the appellant forged the name, and uttered the check. It was not necessary that there should be the same fulness of statement in the warrant required in an information. (The State v. Baker, 57 Kan. 541.) Enough appeared in the warrant to apprise the appellant that he was charged with feloniously
It is contended that the county attorney in filing the first information, charging only the forging of the name, elected to try the appellant for that specific offense, and that he could not afterward be properly charged, tried or convicted for any other; and this is also one of the grounds urged for quashing the second count. It was proper to charge the two offenses in separate counts, and there was no occasion for an election. (The State v. Zimmerman, 47 Kan. 242.) The warrant was a sufficient basis for both counts. The fact that' other and insufficient informations had been filed in an effort to present proper charges could not. preclude the county attorney from presenting a good and sufficient information. The imperfect informations having been quashed, the county attorney had a right, to file ,a good one authorized by the warrant and the appellant’s waiver of a preliminary examination thereon.
The information charged that the Phillips County Bank was the county depositary, but the journal of the-county commissioners showed that the Phillips burg County Bank had been designated as such depositary. The appellant insists that this was a fatal variance. There was evidence, however, that the county funds were in fact deposited in the Phillips County Bank; that it had on deposit $18,000 of money belonging to the-county on the day this cheek was presented; that the appellant recognized that bank as the county depositary by depositing county funds therein and drawing checks thereon as such county treasurer against such deposit, in the usual course of business. This was evidence that, the bank was in fact such depositary, and there was no evidence to the contrary. The appellant admitted that., he received the proceeds of this check from that bank..
The other specifications of error relate to testimony and the instructions of the court. The instrument alleged to have been, forged was an ordinary bank check, drawn by the appellant in his capacity as county treasurer upon the Phillips County Bank, and' purported to be countersigned by L. T. Martin, county clerk. The county clerk testified that he did not sign his name to this instrument. The appellant testified that he did. Several witnesses having the proper qualifications were called to examine this disputed signature and to make comparisons with the signature of the county clerk upon other instruments, admitted to be genuine, and give their opinions thereon to the jury. While so testifying these witnesses were asked to point out wherein’ the disputed signature differed from’the genuine, and to show the jury such differences. In doing this the check in question was passed from one juror to another and examined by them while these witnesses testified. It does not appear that it was formally introduced in evidence, although it was marked “Exhibit B,” and by that designation was referred to in the examination of witnesses by counsel for both parties. A witness for the appellant was asked concerning a conversation with the county clerk about a difference claimed by that officer between his genuine signature and the one upon the check. The following appears in the examination of this witness:
“Ques. What did he say about any other difference? Ans. He did not say anything, only it turned up more— the latter part turned up more.
“Q. Take that to the jury and show them — just show them what he said was the only difference. [Witness complies.] A. He said that the difference in this was that he turned this point [indicating] of the ‘M’ up more. [Passing to another juror.] He said that the difference in this that he turned this part up more, the latter part of the ‘M.’
“The court: The capital ‘M’? A. Yes,° sir. [Pass*478 ing to another juror.] He said he turned this latter point of the ‘M’ up more than this is; [passing to another juror,] that he turned the latter part of the ‘M’ up more than that.
“Mr. Colby: That he turned the latter part of the ‘M’ up more than that? A. Yes, sir; that he turned the latter part of the ‘M’ up more than that; [passing to another juror,] the latter part, he said he turned that up more than this is turned up.”
The court in instructing the jury commented upon this evidence as though the check had been formally introduced, and informed the jury that they might take into consideration, in connection with these opinions, the knowledge of the witnesses, the testimony of Mr. Martin and of the appellant relating thereto, and their own examination of the signature — thus treating the check as in evidence'. The contention of the appellant is that all this testimony based upon these comparisons was erroneously admitted and should have been withdrawn from the jury, and that the instructions referring thereto were improper, for the reason that the check was not in evidence. We can not assent to this. The check was before the jury in the hands of the various witnesses, and in the hands of some of the jurymen, at least, and was subject to their inspection. The court considered it as in evidence, and'the failure to introduce it more formally was the merest oversight. The appellant’s rights could not have been affected in the slightest. degree by the omission. His own counsel cross-examined the witnesses of the state in precisely the same manner that he would have done had the check been offered more formally to the jury and a note thereof made in the record. It was before the court and jury for all the purposes of the trial, and this objection can not now prevail. The court is required on this appeal to “give judgment without regard to technical errors or defects, or to exceptions which do not affect the substantial rights of the parties.” (Crim. Code, § 293.)
A motion for a new trial was presented based upon
“In the argument the county attorney said in substance that the evidence showed that defendant had first written the check or order payable to the New England National Bank, and 'afterward changed it to make it payable to himself, and that this constituted a crime and was forgery. He. did not say this made him guilty of forging the instrument as charged, being the forging the name of Martin to the check. The remark was not objected to, but was called to the court’s attention for the first time when presenting the motion for a new trial.”
The state objected to the affidavit of the jurors and
“That the jurors did not find defendant guilty of forging the name of Martin to the check, and did not find him guilty of passing the check so forged, and that they understood they could find him guilty of passing a forged instrument if he changed the name of the payee in the check, and that they believed the court’s instructions permitted them to do so.”
The court committed no error in rejecting this part of the affidavit. “Affidavits of jurors will not be read to impeach their verdict on any ground essentially.necessary to consider in making up the verdict.” (The State v. Horne, 9 Kan. 119, syllabus. See, also, The State v. Furbeck, 29 Kan. 532.)
The affidavit of the jurymen referring to the statement of the county attorney and the affidavit of that officer presented a question of fact for the trial court— one which could be determined not only from the testimony thus offered but from judicial knowledge gained in presiding at the trial. This court can not disturb that finding.
We have carefully examined the abstracts and the proceedings presented for review, alleged by the appellant to be erroneous, and find no error affecting his substantial rights. The judgment is affirmed.