The State of Kansas, Appellee, v. Clyde Hetrick, Appellant, 84 Kan. 157

The opinion of the court was delivered by Benson, J.: Errors are assigned relating to the admission of testimony and the instructions, and in sustaining the verdict upon the evidence. The alleged insufficiency of the evidence relates to the question of identity.

In the brief for the defendant it is said: “The defense was simply that the defendant was not the right man; that if someone had defrauded the banks it was not Clyde Hetrick.” The fact that he had lived all his life in the neighborhood and was in no financial straits, that he had been at Overbrook frequently and would likely be recognized at the banks, that the cashiers appeared to be so uncertain that they inquired of a neighbor of the defendant whether his name was Clyde Hetrick, and other circumstances, together with the ingenious nature of the scheme, as unfolded by the state, are urgently, insisted upon as reasons why the positive testimony of the cashier of the state bank that the defendant was the man who presented the checks and obtained the money under the name of A.

C. Cotes should not be believed. All these matters were before the jury, and doubtless were also carefully considered by the court on the motion for a new trial. This court can only inquire whether there is competent evidence, which, if believed, sustains the verdict. “The credibility of witnesses and the weight of their testimony, if competent, must rest with the jury and the trial court.” (The State v. Plum, 49 Kan. 679, syl. ¶ 2.) This rule is commonplace in the jurisdiction of this state.

An alleged error in the admission of testimony is based upon an objection to the following question, propounded to the prosecuting witness: “Would you have advanced him the $93 if you had not believed from your conversation with him that he was the A. C. Cotes named as payee in that check?” The objection was that the question was “incompetent, irrelevant and assuming a fact not proven,” and was overruled. The answer was in the negative. This ruling is complained of. The fact sought for was the state of mind, or motive, that induced the cashier to part with the money.

The precise form of the question is not important, unless it is leading and suggestive. A condition or state of mind may be shown by the accompanying circumstances, it is true, but it may also be shown by the direct testimony of the person himself, under the rule stated in Bice v. Rogers, 52 Kan. 207, approved and followed in The State v.

Kirby, 62 Kan. 436, viz.: “It is now well settled that upon an issue of fact as to whether a transfer of property was made for the purpose of hindering, delaying or defrauding creditors, it is competent, where .the one who transfers is a witness, to inquire of him whether in making the transfer he intended to hinder, delay or defraud his creditors.” (Bice v.

Rogers, 52 Kan. 207, 210.) “The prosecutor, when examined as a witness, may testify that he believed the pretenses, and, confiding in their truth, was induced thereby to part with his money or property.” (In re Snyder, Petitioner, &c., 17 Kan. 542, syl. ¶2.) It has been held proper, in an. action for false representations, to inquire of a witness, “What induced you to sign the papers?” (Knight v. Peacock, 116 Mass. 362.) In another case of the same nature practically the same question was held admissible (Charbonnel v. Seabury, 23 R. I. 543), and in Milwaukee R. M. Co. v.

Hamacek, 115 Wis. 422, the question, “Did you rely upon the representations?” was held to be proper. The rule and the reason upon which it is founded are stated in

section 581 of volume 1 of Wig-more on Evidence, and in

section 170 of the second edition of Jones on Evidence. Among other illustrative cases are: Armstrong v. People, 70 N. Y. 38;. Ferguson v. State, 71 Miss. 805; Com., to use, v. Julius et al., Appellants, 173 Pa. St. 322; Brown v. State, 127 Wis. 193. Objection was also made to the testimony showing-the transaction in the national bank. Counsel frankly say that evidence of statements to other persons similar to those upon which the money was obtained are-competent, but that it was error to allow proof “of the fruits of such statements,” viz., of the giving of a Certificate of deposit by the other banker.

This was admissible, in connection with the evidence that the two certificates were found by the roadside together-on the same day and soon after they were obtained, as. a circumstance tending to show that the same man made the representations at both banks. Proof of a collateral offense may be relevant in order to identify a defendant. (Whar. Cr. Ev., 8th ed., § 47.) It is relevant to show that the defendant has made similar-pretenses at another time and place. (Jones, Ev., 2d ed., § 146.) Facts relevant to the issue are not excluded merely because they tend to prove another offense. (The State v.

Adams, 20 Kan. 311; The State v. Franklin, 69 Kan. 798; The State v. Cooper, 83 Kan. 385.) The admission of the evidence did not conflict, with the familiar rule that proof of another crime having no connection with the one for which the accused is being tried is inadmissible. It is also insisted that the cross-examination of a-witness for the state was too strictly limited, but this objection appears to be without merit.

Complaint is made because the court, in instructing the jury concerning the proof of the falsity of the representations set out in the information, stated that it was sufficient if “said representations and pretenses. or some one or more of them were untrue and false and known to be so by the defendant.” This was said in immediate connection with a statement of the other elements of the crime, and the proof necessary to convict. The objection is to the use of the words “or some one or more of them,” which, it is contended, makes the instruction erroneous. This contention can not be upheld.

The proof of one pretense within the statute, operative in inducing the payment, was sufficient. (Whar. Cr. Ev., 8th ed., § 131.) The pretense which induced the payment need not be the sole inducement if it had a controlling influence. (The State v.

Briggs, 74 Kan. 377.) “It is sufficient if they [the false pretenses] are a part of the moving cause, and, without them, the defrauded party would not have parted with the property.” (In re Snyder, Petitioner, &c., 17 Kan. 542, syl. ¶ 8.) The language complained of, in the connection in which it was used, and as a part of the entire charge, was not misleading or erroneous. Upon the whole record we find no error, and the judgment is affirmed.