People v. Kasch

PULLEN, P. J.

Defendant was charged in an information with the crime of issuing a cheek for the payment of money on a bank without having sufficient funds or credit thereat, with intent to defraud.

A plea of not guilty was interposed, a jury waived and the issue of the guilt or innocence of the accused was tried before the court, and the defendant found guilty as charged. A motion for a new trial was presented and denied. The defendant now prosecutes this appeal from the judgment and the order denying that motion.

The defense was an alibi and the testimony is sharply conflicting and irreconcilable. It is the contention of appellant that the evidence adduced by the prosecution does not establish the guilt of the defendant to a moral certainty and beyond a reasonable doubt but on the other hand establishes the innocence of the defendant.

W. II. Davis, the complaining witness, testified that on Saturday,. August 12, 1933, between the hours of 8:30 and 9 o’clock in the evening, a man whom he identified as the defendant called at his house and arranged for the purchase and delivery of certain chicks. Upon that occasion they were together about fifteen minutes, part of that time being in a well-lighted brooder house. According to the arrangements the prospective buyer returned the following morning about 6 o’clock and the chicks were then crated and delivered. At that time the complaining witness and the man whom he identified as the defendant were together approximately an hour selecting the chicks and constructing the crates in which they were taken away. Mr. Davis identified the defendant as the man who called upon him on these two occasions, and who delivered to him a check in payment of the chicks, which upon presentation was found to be fictitious.

To prove a scheme or design the district attorney called J. G. H. Hill, who testified that a man whom he identified as the defendant, called upon him and attempted to purchase some chicks but when he attempted to pay for the same

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with a check Mr. Hill refused to sell and the deal was off. He fixes the hour at about 11 o’clock in the forenoon and the date either a Tuesday or a Wednesday, a few days after a certain Saturday near the middle of the month. Later in his testimony he concluded the Saturday he had in mind was the twelfth day of August, and that the transaction above narrated took place probably on Tuesday, August 15th.