531 P.2d 445 (Kan. 1975), 47402, State v. Giddings

Docket Nº:47402.
Citation:531 P.2d 445, 216 Kan. 14
Party Name:The STATE of Kansas, Appellee, v. Betty GIDDINGS, a/k/a Betty Ledford, a/k/a Leona Marsh, Appellant.
Attorney:[6] Donald H. Humphreys, of Great Bend, argued the cause and was on the brief for the appellant. Dennis J. Keenan, assistant county attorney, argued the cause, and Vern Miller, attorney general, John M. Russell, county attorney, and Robert G. Suelter, assistant county attorney, were with him on t...
Case Date:January 25, 1975
Court:Supreme Court of Kansas
 
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Page 445

531 P.2d 445 (Kan. 1975)

216 Kan. 14

The STATE of Kansas, Appellee,

v.

Betty GIDDINGS, a/k/a Betty Ledford, a/k/a Leona Marsh, Appellant.

No. 47402.

Supreme Court of Kansas

January 25, 1975

Page 446

[Copyrighted Material Omitted]

Page 447

Syllabus by the Court

1. Under the provisions of K.S.A. 22-2302 a properly signed and verified complaint is sufficient authority for the issuance of a warrant for arrest.

2. There is a presumption that public officers will properly perform their official duties and this presumption will prevail absent evidence to the contrary.

3. An illegal arrest standing by itself will not invalidate a subsequent conviction.

4. Pursuant to the provisions of K.S. A. 22-2401(c) a law enforcement officer may make an arrest where he reasonably believes the party arrested has committed a felony.

5. While this court thoroughly disapproves of any unwarranted delay in taking a prisoner before a magistrate after he has been arrested, delay in itself is not a denial of due process unless it has in some way prejudiced mthe right of the accused to a fair trial.

6. The use of a fictitious name in making or signing a written instrument is a circumstance from which an intent to defraud may reasonably be inferred.

7. Where a specific intent is made part of an offense by the statute which creates it, that intent must be included in the charge set forth in the information and it is not sufficient to charge that the act was unlawfully, feloniously and wilfully done.

8. Intent to defraud is a specific element of the offense of forgery as such is defined in K.S.A. 21-3710 and that intent must be alleged in charging forgery in violation of that statute.

9. The crimes of forging a written instrument and uttering a forged instrument are not duplicitous in law but are sparate and distinct offenses.

10. Where the accused testifies to matters on direct examination which are solely in support of his good character, the state is entitled to cross-examine him for the purpose of rebutting the testimony.

11. While a conviction, constitutionally invalid under Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, cannot be used simply to [216 Kan. 15] blacken a defendant's character and thus damage his general credibility before the jury, the conviction may be used on cross-examination of the accused to rebut testimony given by him ob his direct examination.

12. A crime may be said to be a lesser included offense where all of its elements are necessary elements of the greater crime which is charged.

13. An instruction to which no objection had been made at the trial will not be reviewed on appeal unless it be clearly erroneous.

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14. The record is examined in an action wherein the defendant was found guilty of two counts of forgery and for reasons expressed in the opinion it is held (1) so far as count one is concerned the trial court did not err in any of the particulars alleged by defendant and (2) for reasons expressed in the opinion the trial court erred in overruling the defendant's motion to dismiss count two of the information.

Donald H. Humphreys, Great Bend, argued the cause and was on the brief for appellant.

Dennis J, Keenan, Asst. County Atty., argued the cause, and Vern Miller, Atty. Gen., John M. Russell, County Atty., and Robert G. Suelter, Asst. County Atty., were with him on the brief for appellee.

FONTRON, Justice:

The defendant, Betty Giddings, was convicted of forging and uttering check in violation of K.S.A. 21-3710(1)(a) and (b). She was sentenced to the Director of Penal Institutions for a period of not less than one (1) year nor more than ten (10) years on each count, the sentences to run concurrently. She has appealed.

The evidence shows that about 2:00 p.m., December 1, 1972, Mrs. Giddings went into Dillon's north store in Great Bend. She approached Dorothy Sooby, one of the checkers, and asked if she could cash a check. On receiving an affirmative answer she made out a $20 check in Mrs. Sooby's presence and signed it in the name of Rosie Long. Mrs. Sooby gave her a twenty-dollar bill but after some discussion with Mrs. Giddings 'about her needing some money for her kid for school', Mrs. Sooby changed the bill into smaller denominations. As Mrs. Giddings left the store, Mrs. Sooby became suspicious when she noticed some numberals near the bottom of the check. She called her supervisor, Mr. Fabin, who looked at the [216 Kan. 16] check and shared her suspicions. Fabin then walked to the store parking lot where he observed Mrs. Giddings backing out of a parking stall, and he took down her license number. He testified he observed Mrs. Giddings turn her head and he believed she saw him standing in the parking lot with a check in his hand.

Mr. Fabin called the back on which the check was drawn and was advised there was no account in the name of Rosie Long. He then took the check to the bank where it was marked 'no account.' Mrs. Sooby thereafter took the check to the county attorney's office where she filled out a questionnaire and talked to Jack Atteberry, of the Barton County sheriff's office. He showed her a number of pictures from which she identified Mrs. Giddings as the lady who gave her the check. After the identification was made Atteberry had a complaint and warrant prepared in the county attorney's office and took them to the magistrate, before whom he signed the complaint. A warrant was then issued and placed in his hands.

Mrs. Giddings testified she needed the money to go after her son, Duane, who was attending an auto mechanics' school in Plainville; that he had called her, saying he was homesick and wanted to come home to visit his mother. Her defense was built around the proposition that she had no intent to defraud when she wrote and gave the check to Dillon's; that she told Mrs. Sooby she would be back to pick up the check at 5:30 (which Mrs. Sooby denied); that after she got Duane, who the day before had received his stipend from the school, the two drove back to Great Bend and went to the Dillon store to pick up the check; on learning the check had been turned to the county attorney they went to his office to pay off the chick; they then started to the sheriff's office, where the check had finally come to rest, intending to pay it there; that Duane ran on ahead and as she crossing the court house square she was met by Officer Atteberry who took her into custody and clapped her into jail. The testimony of Mrs. Giddings with respect to her efforts to pay off the check

Page 449

was corroborated by her son, by Dillon employees and by the county attorney's secretary.

Numerous errors are alleged on appeal. Mrs. Giddings first contends her arrest was illegal because no testimony was taken by the magistrate before issuing the warrant. The contention lacks merit for several reasons. The complaint was signed before the magistrate and bears his jurat. The applicable statute, K.S.A. 22-2302, provides that a warrant shall issue if the magistrate finds probable cause [216 Kan. 17] either from a complaint, or from affidavits filed with the complaint or from other evidence. In State v. Woods, 214 Kan. 739, 741, 522 P.2d 967, we said that a properly verified complaint is sufficient authority for a finding of probable cause and the issuance of a warrant. See, also, State v. Addington, 205 Kan. 640, 644, 472 P.2d 225.

The defendant suggests the magistrate did not read the complaint, but there is not a shred of evidence to support such a claim. It is presumed that a public officer will have done his duty until the contrary has been established. (Call v. State, 195 Kan. 688, 408 P.2d 668; Wright v. State, 199 Kan. 136, 427 P.2d 611.) That presumption is valid under the circumstances of this case.

Even if the warrant had been improperly issued, the defendant's cause would not be aided. An...

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