579 P.2d 132 (Kan. 1978), 48676, Wilbanks v. State

Docket Nº:48676.
Citation:579 P.2d 132, 224 Kan. 66
Party Name:Robert H. WILBANKS, Appellant, v. STATE of Kansas, Appellee.
Attorney:[6] S. Richard Mellinger, of Roach & Mellinger, of Emporia, argued the cause and Page 67 was on the brief for the appellant. Philip E. Winter, assistant county attorney, argued the cause, and Curt T. Schneider, attorney general, was with him on the brief for the appellee.
Case Date:May 06, 1978
Court:Supreme Court of Kansas
 
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Page 132

579 P.2d 132 (Kan. 1978)

224 Kan. 66

Robert H. WILBANKS, Appellant,

v.

STATE of Kansas, Appellee.

No. 48676.

Supreme Court of Kansas

May 6, 1978

Page 133

Syllabus by the Court

1. Before a warrant for arrest or search may be issued, there must be a finding of probable cause by a neutral and detached magistrate.

2. The purpose of a complaint, filed with a magistrate, is twofold: (1) to disclose sufficient factual information to enable a magistrate to make an intelligent and impartial finding that there is probable cause to believe that a specific crime has been committed, and that the defendant has committed or is committing it; and (2) to inform the defendant of the particular offense with which he or she is charged.

3. The complaint should supply the magistrate with sufficient factual information to support an independent judgment that probable cause exists. Mere conclusions are not sufficient to support such a finding.

4. A verified complaint couched in the language of the criminal statute, standing alone, is not sufficient to support a finding of probable cause. A complaint should contain sufficient factual information to enable the magistrate to make an impartial and detached finding of probable cause before a warrant is issued.

5. While it is preferable that probable cause information be set forth in the body of the complaint, under K.S.A. 22-2302, such information may also be supplied to the magistrate by separate affidavits, filed with the complaint, or by sworn testimony. If sworn testimony is offered, a record should be made of it.

6. The test of probable cause is the same whether it is being applied in connection with an application for an arrest warrant or for a search warrant.

7. Under the Uniform Criminal Extradition Act, K.S.A. 22-2703, a conclusory complaint, void of supporting factual information, does not "substantially charge" the person demanded with having committed an offense, and such a complaint is insufficient to support extradition.

8. In an appeal in a habeas corpus case challenging extradition proceedings, the record is examined and it is held that the complaint filed in the courts of the demanding state, and upon which the arrest warrant was issued, does not disclose probable cause, and therefore the petitioner should be discharged unless the demanding state makes a showing of probable cause within thirty days from the entry of this order.

S. Richard Mellinger of Roach & Mellinger, Emporia, argued the cause and [224 Kan. 67] was on the brief for appellant.

Philip E. Winter, Asst. County Atty., argued the cause, and Curt T. Schneider, Atty. Gen., was with him on the brief for appellee.

MILLER, Justice.

Petitioner, Robert H. Wilbanks, appeals from an order of the district court of Lyon County, Kansas, dissolving a writ of habeas corpus in an action brought to challenge extradition proceedings.

Petitioner contends that it was error to dissolve the writ of habeas corpus when there was no showing that a magistrate, before issuing an arrest warrant, had made an independent evaluation of the complaint to determine if probable cause existed that a crime had been committed and that Wilbanks committed it. Stated another way, he contends that the complaint, filed with an Idaho magistrate, was in itself insufficient to support a finding of probable cause, and there being no indication that affidavits or other evidence were presented to the magistrate, the issuance of the warrant is constitutionally invalid and will not support extradition. With the exception of his attack upon the initial Idaho complaint, petitioner does not challenge the extradition proceedings or the governor's warrant. We need not discuss those matters further.

The initial complaint was filed in the state of Idaho on September 3, 1975. It reads as follows:

"COMPLAINT-CRIMINAL

"PERSONALLY APPEARED before me this ______ day of August, 1975, in

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the county of Ada, who, being first duly sworn, complains and says: that Robert H. Wilbanks on or about the 17th day of July, 1975, in the County of Ada and State of Idaho, then and there being, did then and there commit the crime of issuing a check without funds (IC 18-3106 felony) said crime being committed as follows, to-wit:

"COUNT I

"That the said defendant, Robert H. Wilbanks, on or about the 17th day of July, 1975, in the County of Ada, State of Idaho, then and there being, did then and there knowingly, wilfully, intentionally, unlawfully, feloniously, and with intent to defraud one Power Shop Equipment and Supply, in the County of Ada, State of Idaho, make, draw, utter and deliver to the said Power Shop Equipment & Supply, a certain check for the payment of money in the sum of $372.61 Dollars, lawful money of the United States of America, which said check was and is in the words and figures as follows:

Robert H. Wilbanks 186 P.O.Box 623 92-6/1241 Boise, Idaho 83701 7-17 , 1975 --------------- PAY TO THE ORDER OF Power Shop $372.61 ----------------------------------- Three Hundred Seventy Two & 61/100 --- DOLLARS First Security Bank of Idaho National Association P.O. Box 7069, Boise, Idaho 83707 For_______________ Robert H. Wilbanks ------------------

[224 Kan. 68] well knowing at the time of his making, drawing, uttering and delivering said check that he, the said defendant, did not have any funds in or credit with said bank for the payment of said check, or for the payment of any part of said check.

"All of which is contrary to the form, force and effect of the statute in such case made and provided and against the peace and dignity of the State of Idaho.

"Said Complainant therefore prays that a Warrant issue for the arrest of said defendant, Robert H. Wilbanks, and that he may be dealt with according to law.

/s/ William Allan McAndy

William Allan McAndy

"Subscribed and sworn to before me this 3rd day of September, 1975.

/s/ L. Alan Smith

Magistrate

"(Filed: 9/3/75)"

Six days later, a warrant was issued by G. D. Carey, another magistrate in the same Idaho judicial district, for the arrest of Wilbanks. The complaint is drawn under section 18-3106 of the Idaho Code (1977 Supp.), which reads as follows:

"18-3106. Drawing check without funds Drawing check with insufficient funds Prima facie evidence of intent. (a) Any person who for himself or as the agent or representative of another or as an officer of a corporation, wilfully, with intent to defraud shall make or draw or utter or deliver, or cause to be made, drawn, uttered or delivered, any check, draft or order for the payment of money upon any bank or depositary, or person, or firm, or corporation, knowing at the time of such making, drawing, uttering or delivery that the maker or drawer has no funds in or credit with such bank or depositary, or person, or firm, or corporation, for the payment in full of such check, draft or order upon its presentation, although no express representation is made with reference thereto, shall upon conviction be punished by imprisonment in the state prison for a term not to exceed three (3) years or by a fine not to exceed $5,000 or by both such fine and imprisonment.

(d) As against the maker or drawer thereof, the making, drawing, uttering or delivering of such check, draft or order as aforesaid shall be prima facie evidence [224 Kan. 69] of intent to defraud and of knowledge of no funds or insufficient funds, as the case may be, in or credit with such bank, or depositary, or person, or firm, or corporation, for the payment in full of such check, draft or order upon its presentation. The word "credit" as used herein

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shall be construed to mean an arrangement or understanding with the bank or depositary, or person, or firm, or corporation upon whom such check, draft or order is drawn for the payment of such check, draft or order."

A comparison of I.C.1977 Supp. 18-3106(a) with the complaint shows that the complaint is written in almost the exact terms of the statute.

Three other sections of the Idaho Code are pertinent. These are I.C.1977 Supp. 19-504, I.C.1977 Supp. 19-505, and I.C. 19-506. These read as follows:

«19-504. Examination of person lodging complaint. When a complaint is laid before a magistrate of the commission of a public offense, triable within the county, he must examine, under oath, the person lodging such complaint, and the written complaint, so lodged, shall be subscribed under oath by the party or parties lodging the same.»

«19-505. Contents of complaint. The complaint must set forth the facts stated by the complaining witness, tending to establish the commission of the public offense and the guilt of the defendant.»

«19-506. When warrant may issue. If the magistrate is satisfied therefrom that the offense complained of has been committed, and that there is reasonable ground to believe that the defendant has committed it, he must issue a warrant of arrest.»

Our own statute governing the issuance of warrants for arrest upon the filing of complaints is K.S.A. 22-2302. It reads:

"If the magistrate finds from the complaint, or from an affidavit or affidavits filed with the complaint or from other evidence, that there is probable cause to believe both that a crime has been committed and that the defendant has committed it, a warrant for the arrest of the defendant shall issue. . . ."

The Judicial Council note appended thereto states that "This section parallels, with slight modifications, Rule 4(a ) Federal Rules of Criminal Procedure. . . ." The federal rule reads:

«Rule 4(a) Issuance. If it appears from the...

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