{ "id": 1650379, "name": "Keese and Pilgreen v. State", "name_abbreviation": "Keese v. State", "decision_date": "1954-03-08", "docket_number": "4762", "first_page": "261", "last_page": "270", "citations": [ { "type": "official", "cite": "223 Ark. 261" }, { "type": "parallel", "cite": "265 S.W.2d 542" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "206 Ark. 791", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1485140 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/206/0791-01" ] }, { "cite": "217 Ark. 153", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8718108 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/217/0153-01" ] }, { "cite": "20 Ark. 36", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1869271 ], "opinion_index": 0, "case_paths": [ "/ark/20/0036-01" ] }, { "cite": "210 Ark. 248", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8719412 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/210/0248-01" ] }, { "cite": "108 S. W. 2d 468", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 0 }, { "cite": "194 Ark. 449", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8721681 ], "opinion_index": 0, "case_paths": [ "/ark/194/0449-01" ] }, { "cite": "206 Ark. 549", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1484990 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/206/0549-01" ] }, { "cite": "58 S. W. 2d 434", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 0 }, { "cite": "187 Ark. 88", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1431994 ], "opinion_index": 0, "case_paths": [ "/ark/187/0088-01" ] }, { "cite": "86 S. W. 2d 13", "category": "reporters:state_regional", "reporter": "S.W.2d", "year": 1947, "opinion_index": 0 }, { "cite": "191 Ark. 274", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1418432 ], "year": 1947, "opinion_index": 0, "case_paths": [ "/ark/191/0274-01" ] }, { "cite": "199 Ark. 159", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1456648 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/199/0159-01" ] }, { "cite": "205 Ark. 103", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1488261 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/205/0103-01" ] }, { "cite": "207 Ark. 672", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1481772 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/207/0672-01" ] }, { "cite": "170 S. W. 80", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "114 Ark. 393", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1536335 ], "opinion_index": 0, "case_paths": [ "/ark/114/0393-01" ] } ], "analysis": { "cardinality": 799, "char_count": 17922, "ocr_confidence": 0.527, "pagerank": { "raw": 2.943247470758282e-07, "percentile": 0.8482631612885538 }, "sha256": "8612762d1a9f0ed3097b6ff1de0a6e2ce91c26e459b700281b780be7928574e5", "simhash": "1:ca6fc907a997e0bd", "word_count": 3113 }, "last_updated": "2023-07-14T21:02:33.600099+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Keese and Pilgreen v. State." ], "opinions": [ { "text": "J. Seaborn Holt, J.\nBy information, appellants were charged jointly under \u00a7 41-1811, Ark. Stats., 1947, with the \u201ccrime of possessing forged and counterfeited instrument committed as follows, to-wit: The said defendants on the 10th day of July, 1953, in Miller County, Arkansas, did unlawfully, wilfully and feloniously, falsely and fraudulently have and keep in their possession divers false, forged and counterfeited checks and drafts and fictitious instruments purporting to be checks, etc.\u201d\nTrial resulted in a verdict finding both guilty and leaving the- punishment to be assessed by the Court. Pilgreen was adjudged to serve three years in the Boys\u2019 Industrial School, and Keese, three years in the State Penitentiary. Prom the judgment is this appeal.\nAppellants first question the sufficiency of the evidence- and their conviction under the above section of the statute, which provides in material part. \u201cWhoever shall fraudulently keep in his possession or conceal the counterfeit resemblance or imitation of any bank bill, note, check, or draft, or any instrument which circulates as currency, of any corporation, company or person that exists, or may exist, whether such bill, note, check, draft or instrument be complete and filled up, or otherwise, or shall fraudulently keep in possession or conceal any fictitious instrument, purporting to be a bank bill, note, check or draft of any corporation, company or person, whether the same be, filled up and complete or not, ... or shall fraudulently . . . offer to pass, or assist, or be concerned in fraudulently buying, paying, or tendering in payment, altering or passing any such, bill, note, draft, check . . ., shall be imprisoned in the penitentiary not less than three (3) nor more than ten (10) years.\u201d\nAfter reviewing all the testimony, we have concluded that it was substantial and sufficient to support the jury\u2019s finding that appellants were guilty of the crime charged.\nThe record reflects that on July 10, 1953, appellant, Keese, entered the Belk-Jones Store in Texarkana and presented to the cashier a check for payment in the amount of approximately $71, drawn on the State National Bank, and signed \u201cWillie Ray Smith\u201d and payable to \u201cGeorge P. Norris.\u201d The cashier referred Keese to Mr. Jester, an employee whose duty was to approve checks. When Keese asked Jester to approve the check, Jester then telephoned the bank and was informed that the amount of the check was all right. Thereupon, Keese tore up the cheek and left the store. Jester, at once, notified the police, and together with another employe, Heflin, went out on the street to search for the pieces of the check, hut none was found. Thurman Conley, an acquaintance of Pilgreen, at the time was sitting in a car in the same block in which the store was located. Pilgreen entered Conley\u2019s car, removed a check from his billfold and placed it \u201cunder the dash of my car.\u201d Conley overheard Jester say he was looking for a check, so he, Conley, removed the check that Pilgreen had placed under the dashboard, followed Jester and Heflin, and gave the check to Heflin. The check was as follows: \u201cTexarkana, Arkansas, July 10th, 1953 \u2014 THE STATE NATIONAL BANK of Texarkana \u2014 Pay to George F. Norris or bearer $71.50 \u2014 Seventy-one and fifty cents- \u2014 \u25a0 Dollars \u2014 Willie Ray Smith.\u201d\nHeflin testified, in effect, that after he and Jester returned to the store and Conley delivered to him the check, copied above, he turned it over to the Police Department.\nDeputy Sheriff Johnson testified that while Keese was in jail July, 1953, he obtained specimens of his handwriting, \u201cI had him write Willie Ray Smith, Bill Keese, and the name, George F. Norris and also some' dates, and the figures seventy-one fifty cents. . . . Did you advise him at the time that he did not have to do that? A. I don\u2019t believe I did. Q. In what manner did you obtain that specimen of his handwriting, did you ask him to do it ? A. I had these names that were on this check and I asked him if he would write those names on this paper for me and he did. Q. He agreed to do so? A. Yes, he raised no objections to it.\u201d These specimens were introduced in evidence.\nMr. Jones, head bookkeeper of the State National Bank, testified that he had had eight years of examining-handwriting for the bank, that he was familiar with the handwriting of Willie Ray Smith, and that the signature of the above check (which check was introduced in evidence) was not Smith\u2019s signature and that the handwriting on the above check and the specimens procured by Officer Johnson were, in his opinion, written by the same person.\nWillie Ray Smith testified that the signature on the above check was not his, and that he did not authorize any one to sign his name to it.\nAt the time the torn up check was presented by Keese at the store, he, Smith, had an account in the State National Bank.\nWe think the above testimony shows a definite plan and chain of events and acts connecting appellants with the crime charged and sufficient to establish their guilt.\nThe above statute makes it a crime for one to have in possession, with intent to defraud the \u201ccounterfeit resemblance or imitation of any . . . check, . . . that exists, or may exist,\u201d or to pass or to offer to pass such check, \u201cor be concerned in . . . tendering in payment ... or passing any such . . . check.\u201d\nWe think it obvious that under the plain terms of the above section, it was designed to apply not only to bank notes and currency, but also to the ordinary bank check, which is \u201ca written order or request, addressed to a bank or persons carrying on the business of banking, by a party having money in their hands, desiring them to pay, on presentment, to a person therein named or bearer, or to such person or order, a named sum of money.\u201d Bouvier\u2019s Law Dictionary, Vol. 1, page 475.\nThe evidence shows that appellants had in their possession two forged, fictitious and fraudulent checks, the one that Keese tore to pieces in the store and the one left by Pilgreen in Conley\u2019s car, which was introduced in evidence. These two checks were practically identical in all essential parts.\nWe do not agree with appellants\u2019 contention that the above section, \u201cwas designed only \u2018to protect banks and to prevent people from possessing anything that was designed to circulate as currency, and a check drawn by an individual upon a bank is not such an instrument as included in the original statute.\u2019 \u201d Had the Legislature intended such a narrow and strained construction, it could easily have said so.\nA directed verdict for appellants was properly refused since the evidence was sufficient to show a violation of the above statute. \u201cThe trial judge may direct a verdict only where the evidence raises no material question of fact for the jury\u2019s determination.\u201d Paxton v. State, 114 Ark. 393, 170 S. W. 80, and Ruffin v. State, 207 Ark. 672, 182 S. W. 2d 673.\nAppellants also say that the court erred in refusing their request for a severance. This contention is untenable for the reason that our statute, \u00a7 43-1802, Ark. Stats., 1947, provides: \u201cWhen two (2) or more defendants are jointly . . . indicted for a felony less than capital, defendants may be tried jointly or separately, in the discretion of the trial court. \u2019 \u2019\n\u201cThe granting of a severance is within the sound discretion of the trial court.\u201d Nolan and Guthrie v. State, 205 Ark. 103, 167 S. W. 2d 503. Its action will not he disturbed, absent evidence indicating abuse of discretion.\nWe find no abuse of discretion here.\nAppellants next argue \u201cthat the court erred in refusing to discharge the jury panel and in ordering the defendant, Doyle Pilgreen, into a trial during the same week that he had already been previously tried and committed, and this error was aggravated by the fact that it was known to the jury that tried him in the instant case,\u201d and that they were denied a fair and impartial trial. We do not agree.\nThe record reflects that Pilgreen had been tried for some offense during the same week in which both appellants were jointly tried in the present case and that jurors, Roberts and Crank, (of the regular panel) knew of such trial. Whether Pilgreen was found guilty or acquitted, or on what charge, is not disclosed. While the jurors were being questioned on voir dire, the record shows: \u201cBy MR. EDWARDES: (Questioning the panel as a whole) Gentlemen, have any of you heard of any case in this court at this term involving these defendants or either of them? (Thereupon, two jurors indicated that they had, said jurors being Buron Roberts and G. W. Crank, Jr.) Q. Did either of you hear the trial of that case? A. No, sir. (Both jurors answered in the negative). Q. Mr. Buron Roberts, I believe you were present when the jury was selected in the other case against Doyle Pilgreen? A. Yes, sir. . . . Now, all you members standing know that there was another case here against the defendant, Doyle Pilgreen \u2014 is there any one of you that doesn\u2019t know it? A. I have heard the name mentioned is all I know about it. Q. You are Mr. Buron Roberts? A. Yes, sir. Q. Is there any one still standing that was on the other jury that tried Doyle Pilgreen ? (There was none indicated). Q. It has come to your attention during the court\u2019s examination of the jury that there was another case here; all of you understand that now? BY THE COURT: ... In the court\u2019s qualifying this jury to serve on this case, no mention was made of any other case. . . . This jury panel has been examined fully, and they were asked that all who had served on any case in which either of these boys were involved would please be seated and they did, and so far as information being conveyed to these jurors, it could have been either of these defendants.\u201d\nAt this point, appellants moved that the court discharge the entire panel for the reason that it had come to the jurors\u2019 attention that there was another criminal charge against Pilgreen. The court overruled this motion with this statement: \u201cThe motion will be overruled for the reason that the jury has been fully interrogated about their knowledge of this case which is being tried now, and as to whether or not they could give the defendant a fair and impartial trial, based upon the law and the evidence in this case, and all have answered that they can and will do that. \u2019 \u2019\nSection 43-1911, Ark. Stats., 1947, provides: \u201cA challenge to the panel shall only be for substantial irregularity in selecting or summoning the jury, or in drawing the panel by the clerk. \u2019 \u2019 Shockley v. State, 199 Ark. 159, 133 S. W. 2d 630.\nIt appears that the jurors that tried appellants all answered, when examined, that they could, and would, give them a fair and impartial trial. Appellants did not exhaust their statutory rights of peremptory challenges. In fact, it does not appear that they made any such challenges at all.\nThe rule announced in Wiley v. State, 191 Ark. 274, 86 S. W. 2d 13, is applicable here. We there said: \u201cSection 3152 of Crawford & Moses\u2019 Digest (now \u00a7 43-1911, Ark. Stats., 1947) provides: \u2018A challenge to the panel shall only be for substantial irregularity in selecting or summoning the jury, or in drawing the panel by the clerk. \u2019 The plain language of this section of the statutes is such as to exclude prejudice of the panel as cause for challenge thereto. This section of the statutes prescribes the only causes for which a jury panel may be excused, and therefore excludes all other causes not within its terms. Moreover, the record does not reflect that appellant exhausted or even exercised any of his statutory rights of peremptory challenges to relieve against the condition complained of; therefore, under repeated opinions of this court, he is in no position to urge \u2018this contention. Hooper v. State, 187 Ark. 88, 58 S. W. 2d 434.\u201d\nWe hold, therefore, that this assignment is without merit.\nAppellants say that \u201cthe court erred in overruling the defendants\u2019 motion to require the prosecution to elect upon the specific charge that they would proceed, and in ruling that the information was not duplicitious. \u201d\nThe answer to this contention is that the record is silent as to any motion or ruling of the court referred to by appellants or whether any objections were made and exceptions saved. This assignment, therefore, comes too late and cannot be considered.\n\u201c \u2018On appeal from the circuit court, this court only reviews errors appearing in the record. The complaining party must first make an objection in the trial court, and this calls for a ruling on his objection. An exception must then be taken to an adverse ruling on the objection, which \u201cdirects attention to and fastens the objection for a review on appeal.\u201d The matters complained of, together with the objections and the exceptions to the ruling of the court, must be brought into the record by a bill of exceptions; and the motion for a new trial can serve no other purpose than to assign the ruling or action of the court as error.\u2019 \u201d Yarbrough v. State, 206 Ark. 549, 176 S. W. 2d 702.\nAppellants next argue that the court erred in admitting the check introduced herein (and set out above) for the reason that it was not identified and traced to appellants, and permitting the introduction of evidence of other checks.\nWe hold this contention untenable.\nAs we have indicated, the check introduced in evidence above was sufficiently identified and traced to appellants. It was similar in every material respect to the one that was destroyed by Keese and the evidence showed that both checks were written by the same person, Keese. As to the alleged admission in evidence of a check other than the evidence relating to the two checks above, the record shows in the direct examination of Willie Ray Smith, the following: \u201cBy Mr. Lookadoo: Q. I hand you here another check in the sum of eighteen fifty ($18.50), and I want to ask you if that is your signature? A. No, sir. By Mr. Edwardes: I want to object. They are referring to a check that is not referred to in the information, and has not been referred to at any time. I don\u2019t know what they are talking about and it is improper. * * * By the Court: The court has no way of knowing whether it is or not. I don\u2019t know what it is. You may proceed. * * * By Mr. Lookadoo: Q. What is the date of that check? A. July 9th. Q. That was drawn on the State National Bank? A. Yes, sir. Q. And that is not your signature? A. It is not. By Mr. Edwardes: Are you seeking to offer it in evidence? By Mr. Lookadoo: I will be glad to introduce it. By Mr. Edwardes : I am not asking you to and I object. By the Court : Is there anything further? By Mr. Lookadoo: No, sir. By the Court: He says he is through with the witness and it hasn\u2019t been offered in evidence. By Mr. Edwardes: I have no questions.\u201d\nThe information here charged appellants with falsely and fraudulently keeping in their possession divers false, forged and counterfeited checks, etc. and this evidence was properly offered by the State to show criminal intent, design, or part of a common scheme or plan of appellants.\n\u201c \u2018The evidence of the commission of other crimes of a similar nature about the same time, however, tends to show the guilt of the defendant of the crime charged when it discloses a criminal intent, guilty knowledge, identifies the defendant, or is part of common scheme or plan embracing two or more crimes so related to each other that the proof of one tends to establish the other.\u2019 \u201d Puckett v. State, 194 Ark. 449, 108 S. W. 2d 468.\nNext appellants say that the court erred \u201cin charging the jury, * * * that in the event they could not agree upon the punishment herein that if they returned a verdict of merely finding the defendants guilty that the court would fix the punishment.\u201d\nThere is no merit to this assignment. In its instruction No. 7, the court told the jury \u201cif you find the defendants guilty beyond a reasonable doubt and cannot agree as to the amount of punishment, then you may, if you desire to do so, return into court a verdict of guilty and the court will fix the amount of punishment. However, if it is possible to do so, should you find them guilty, you should also fix the amount of punishment. A finding of guilty, however, must be beyond a reasonable doubt as the court has instructed you. \u2019 \u2019\nThis was a correct instruction under \u00a7 43-2306, Ark. Stats. 1947.\n\u201cThere was no error in instructing the jury before it retired that if they found the defendant guilty and could not agree on the punishment to be imposed they might, under \u00a7 4070, Pope\u2019s Digest, (now \u00a7 43-2306 Ark. Stats. 1947) leave fixing the punishment to the court.\u201d Knighten v. State, 210 Ark. 248, 195 S. W. 2d 47, (Headnote 3).\nFinally, appellants argue that \u201ctaking specimens of handwriting from the accused, Bill B. Keese, by the officer, Tillman Johnson, violated the constitutional rights of the appellant, Bill B. Keese.\u201d\nThis alleged error is without merit for the reason that it was not incorporated in appellants\u2019 motion for a new trial and under our long established rule, we must regard it as having been waived.\n\u201cIt is a well established rule of practice that, where there is a motion for a new trial, such previous exceptions as are not incorporated in the motion, must be regarded as having been waived.\u201d Collier v. State, 20 Ark. 36, (Headnote). Havens v. State, 217 Ark. 153, 228 S. W. 2d 1003.\nWe point out, however, that had this alleged error been properly brought forward, it would have availed appellants nothing-for the reason that Keese voluntarily gave specimens of his handwriting, freely and without coercion or threat, and this evidence was properly admitted. State v. Browning, 206 Ark. 791, 178 S. W. 2d 77.\nAffirmed.", "type": "majority", "author": "J. Seaborn Holt, J." } ], "attorneys": [ "George F. Edwardes, for appellant.", "Tom Gentry, Attorney General, and Thorp Thomas, Assistant Attorney General, for appellee." ], "corrections": "", "head_matter": "Keese and Pilgreen v. State.\n4762\n265 S. W. 2d 542\nOpinion delivered March 8, 1954.\nGeorge F. Edwardes, for appellant.\nTom Gentry, Attorney General, and Thorp Thomas, Assistant Attorney General, for appellee." }, "file_name": "0261-01", "first_page_order": 283, "last_page_order": 292 }