Opinion
No. 28188.
February 28, 1927. Rehearing Denied March 28, 1927.
Appeal from Twenty-First Judicial District Court, Parish of Livingston; Columbus Reid, Judge.
James Bigner was convicted of obtaining goods by the use of a false or bogus check or by means of the confidence game, and he appeals. Affirmed.
R.M. McGehee, of Hammond, for appellant.
Percy, Saint, Atty. Gen., A.L. Ponder, Jr., Dist. Atty., of Amite, and E.R. Schowalter, Asst. Atty. Gen., for the State.
Appellant was convicted of the crime of obtaining goods of the value of $40 by the use of a false or bogus check, or by the means commonly called the "confidence game." The crime is denounced by the Act 43 of 1912, p. 51.
The record contains eleven bills of exception. Bills No. 1 to No. 9, inclusive, were reserved to the overruling of the defendant's objections to the introduction of evidence showing that he had drawn on the same bank other checks that were dishonored. The objection, in each instance, was that the evidence was irrelevant and tended only to create an unfair prejudice against the defendant. We agree with the district judge that the evidence was relevant to the question whether the defendant's overdrawing of his bank account was done intentionally or accidently. 16 C.J. 1162, § 597.
Bill No. 10 was reserved to the overruling of an objection to a question propounded to the defendant as a witness, on cross-examination, as to whether he had been prosecuted previously for larceny. The question was objected to on the ground that it was an attack upon the character of the defendant, which had not been put at issue. The evidence was admitted for the purpose of discrediting the defendant as a witness. For that purpose the evidence was admissible. When the defendant in a criminal prosecution testifies in his own behalf, his credibility is thereby put at issue, the same as is the credibility of any other witness who testifies in the case.
Bill No. 11 was reserved to the overruling of an objection to a question, propounded to a defense witness on cross-examination, as to whether he had ever been tried for forgery. The question was objected to on the ground that it was an attack upon the character of the witness. The evidence was admitted for the purpose of discrediting the witness. For that purpose the evidence was admissible. The witness answered that he was prosecuted for forgery but was acquitted. Therefore no undue harm was done by the question and answer.
The brief filed on behalf of the appellant in this case is merely an argument of his motion for a new trial, on the ground that the verdict was contrary to the law and the evidence. The motion was founded upon the allegation, specifically, that the evidence showed that the reason why the checks which the defendant drew on his bank account were dishonored was that some one had forged his name to a check, which the bank cashed and thereby depleted the account. It was alleged in the motion that the bank afterwards reimbursed him for the error, and that he then paid all of the dishonored checks. If those facts were proven, the defendant should have been acquitted, or a new trial should have been granted. But the trial judge does not admit that those were the facts, and we have no jurisdiction to decide the questions of fact on which depends the question of guilt or innocence. The proper method of propounding the question, as a question of law, to this court, would have been to request of the trial judge a special charge to the jury, based upon the hypothetical statement of facts, as stated in the motion for a new trial. There was no bill of exception taken to the overruling of the motion for a new trial, and no such bill would have been availing without an admission or a statement by the judge of such facts as would show an error of law. The case is argued on behalf of the appellant as if we had authority to consider and decide the questions of fact on which depends the appellant's guilt or innocence. The Constitution denies us that authority.
The verdict and sentence are affirmed.