State v. FergusonState v. Ferguson
- Reporters:
- , ,
- Before:
- Owsley
The opinion of the court was delivered by
Owsley, J.:
This is а direct appeal from a jury verdict wherein defendant was found guilty of impairing a security interest by failing to account for the proceeds of the sale of secured personal property, in violation of
The scanty record reveals defendant Tom Ferguson had previously done business with the complainant, Admire State Bank (hereinafter called bank). On April 2, 1974, defendant went to the bank and borrowed money allegedly to purchase a 1973 Yamaha motorcycle. The loan totaled $919.62 ($800.00 plus interest) and listed a 1973 Yamaha and a 1967 Fury III as collateral. The first payment of $51.10 was due May 12, 1974.
Defendant did not purchase the Yamaha. Instead, on April 4, 1974, he purchased a 1972 Suzuki for $400.00. Title to the Suzuki was placed in the name of his wife, allegedly because defendant
On April 24, 1974, defendant borrowed more money from the bank for a Ranchero automobile, as his Fury III had broken down. Accоrding to defendant, he informed the bank at that time that he had purchased a 1972 Suzuki instead of a 1973 Yamaha. Stack Cowgill, bank vice-president, testified the bank was not informed of the change until May 3 or 4, 1974, when defendаnt borrowed money to move to Ellinwood, Kansas. Dispute over these dates has no bearing on the outcome of the case.
On May 24, 1974, the bank received the first payment. No payments were reсeived in June or July. In July the bank discovered defendant had sold the Suzuki to Larry Ravenstein on May 21, for $300.00. Ravenstein paid a $50.00 down payment, which apparently comprised the bulk of the May 24th payment to the bank.
At trial defendant testified the bank told him to sell both the Ranchero and the Suzuki and apply the proceeds to the note. He further stated Cowgill gave him permission to apply the June payment to the cоst of ads for the sale of the car and motorcycle. Cowgill did not recall giving such permission. Defendant also testified Cowgill gave him permission to change the payment dates. Again, Cowgill had no recollection of such an agreement, although a handwritten note to this effect appears on the bank’s copy of the loan. It appeared the bank was not concerned with the sale of the motorcycle as long as the note was paid.
On October 24, 1974, Cowgill went to Ellinwood to recover the motorcycle since the bank hadn’t received further payments. He located Ravenstein, who did not know the bank had a security interest in the Suzuki. Ravenstein told Cowgill he had paid $150.00 of the purchase price directly to defendant and was told by defendant to pay the remainder to the Ellinwood city сourt for a fine incurred by defendant for driving without a license.
The bank, through its president, swore out a complaint charging defendant with selling secured property without the secured party’s consent, in violatiоn of
Although defendant stated he intended to meet all his obligations to the bank, the jury found him guilty.
Defendant first contends
Defendant next contends the court improperly and prejudicially instructed the jury. He argues instruction No. 8 led the jury to assume the bank required an accounting. The record does not rеveal that defendant objected to the court’s instruction, although it does show defendant proposed an instruction similar to the one given by the court. An instruction to which no objection was interposеd at trial will not be reviewed on appeal unless it is clearly erroneous. (
As his third point, defendant alleges the trial court erred in permitting amendment of the information during the course of the trial. The information charged defendant with a violation of
Defendant admits none of the amendments changed the basic charge against him, but argues they occurred with such frequency during thе course of the proceedings that even after the defense had rested, the jury and others present must have beoome confused as to the necessity of the amendments, the importancе of the dates, and which date was applicable at which portion of the proceedings.
Amending an information during the course of trial is governed by
“The court may permit a complaint or informаtion to be amended at any time before verdict or finding if no additional or different crime is charged and if substantial rights of the defendant are not prejudiced.”
The fact the dates were amended to conform with the evidence is not prejudicial. It was not a critical issue. No statute of limitations was involved. Alibi was not a defense to make dates important. Time was not an element of the offense.
(State v. Sisson,
As defendant’s fourth and fifth points, he contends the trial court committed prejudicial error in permitting the state to disclose defendant’s other financial affairs in his cross-examination and in rebuttal testimony.
Defendant’s counsel cross-examined Cowgill as to defendant’s prior loans with the bank. During questioning defense counsel asked:
“Q. Prior to that time, did Mr. Ferguson have any loans outstanding with the bank?
“A. He had before, and they were paid.
“Q. They were paid. How were they paid?
“A. Paid in full. They were paid early.”
When defendant took the stand, he was cross-examined as to his late payments on three loans with the bank. Over objection he was also questioned as to his extensivе debts with a finance company and another bank, and late payments on those accounts.
In rebuttal the state called defendant’s brother. He testified he had co-signed a $3,000 note with a financе company on behalf of defendant. Because defendant made only two payments on the loan, the witness was still making the payments at the time of trial.
Defendant objects to the admissibility of the cross-examination and rebuttal evidence as an effort to make him appear to be a “deadbeat,” thereby prejudicing the jury against him. Irrespective of the effect of the testimony, defendant cannot claim error. The state is entitled to cross-examine on matters brought before the jury by a defendant. (See, State v. Burnett, 221 Kan. 40, 558 P. 2d 1087, and authorities cited therein.) Defendant asserted he had always intended to meet all his financial obligations with the bank. Defendant’s counsel questioned the bank on independent financial transactions with defendant, showing the jury defendant had paid the loans early. The state was entitled tо test the defense through rebuttal and cross-examination.
In order to bolster his argument defendant analogizes the state’s action as a violation of
Finally, defendant contends there was insufficient evidence tо support a guilty verdict. This court has consistently held that before a verdict of guilty may be set aside because of insufficient evidence it must be clearly shown that upon no hypothesis is there substantial evidеnce to reach the conclusion reached by the trial court. (State v. Harwick, 220 Kan. 572, 578, 552 P. 2d 987; State v. Thomas, 220 Kan. 104, 551 P. 2d 873; State v. Edwards, 209 Kan. 681, 686-87, 498 P. 2d 48 State v. Scoggins, 199 Kan. 108, 111, 427 P. 2d 603, and cases cited therein.)
K. S. A, 21-3734 is a progeny of
The repeal of
A review of the record discloses there is substantial competent evidence to support the conviction.
The judgment is affirmed.