Miller v. State

• Decision Date: 09 March 1968
• Docket Number: No. 45168,45168
• Citation: 200 Kan. 700,438 P.2d 87
• Parties: Blonn MILLER, Appellant, v. STATE of Kansas, Appellee.
• Court: Kansas Supreme Court

Page 87

438 P.2d 87

200 Kan. 700

Blonn MILLER, Appellant, v. STATE of Kansas, Appellee.

No. 45168.

Supreme Court of Kansas.

March 9, 1968.

Syllabus by the Court

1. A probationer whose freedom of action and movement is substantially restrained and limited by the conditions imposed by the court in its order of probation is 'in custody' within the meaning of K.S.A. 60-1507 and is entitled to institute proceedings pursuant to that statute.

2. Where members of a partnership have been guilty of crime, the partners should be proceeded against as individuals and not as a firm, but they may be described as being members of a firm, and such designation regarded as descriptive only and treated as surplusage.

3. A partner is not criminally responsible for the unlawful acts of his copartners in the absence of his personal participation in the criminal act or unless the partnership engages in criminal activity with his knowledge and assent.

4. A voluntary plea of guilty is an admission by a defendant, of the highest order, of his participation in the offense or offenses charged against him.

5. The record is examined in an action brought pursuant to K.S.A. 60-1507 and for reasons appearing in the opinion it is held that no error appears and the trial court's judgment must be sustained.

Walter B. Patterson, Fort Scott, argued the cause and was on the brief for appellant.

Charles M. Warren, County Atty., argued the cause and Robert C. Londerholm, Atty. Gen., was with him on the brief for appellee.

FONTRON, Justice.

This action is brought by the petitioner, Blonn Miller, pursuant to K.S.A. 60-1507, seeking relief from a judgment of conviction entered against him on December 5, 1962. An evidentiary hearing was held on petitioner's motion, at the conclusion of which his motion was overruled. The petitioner has appealed. He will be referred to throughout this opinion either by name or as petitioner.

A bit of background is essential. In 1947, Mr. Miller and his three sisters, Charlotte Hackney, Maxine Hereford and Joanne Chapman, purchased from their father the business known as the Banner Dairy Products of Fort Scott, Kansas, and continued the business as a partnership until it was closed early in 1962.

Only three of the partners, Blonn Miller, Charlotte Hackney and Maxine Hereford actively participated in the business, their sister Joanne taking no part. Blonn was the plant overseer and ran the feed business, while Charlotte and Maxine ran the office, kept the books and attended generally to the business end of the operation. Charlotte figured and made out the checks, and signed most of them, although all three partners had authority to sign clecks and knew how the bank account was being handled.

For a good many years the partnership prospered, often grossing over a million dollars annually. However, for the last two or three years of its operation, the partnership was hard up and the business lost a lot of money. During this time the partners sold their Allen County farm and invested $25,000 of the proceeds in the business. In addition, they sold a town property and put the money from that sale in the partnership.

Time eventually ran out and the Banner Dairy was forced to close its doors because of difficulties which arose with a Grade A Milk Association. The exact date of closing is not shown in the record, but it is reasonable to assume, from what the record does reveal, that it was late February or early March, 1962.

As frequently happens when a business of this kind is unable to continue, a good many checks were outstanding when the doors closed, and were subsequently dishonored. On October 19, 1962, an information was filed charging the petitioner, together with his sisters Charlotte and Maxine, with 53 counts of making and uttering bad checks, forty-two counts charging felonies and eleven charging misdemeanors. The counts were identical in wording except

as to dates, amounts, and payees, and were in the following form (the misdemeanor counts omitting the word 'feloniously'):

'IN THE DISTRICT COURT OF BOURBON COUNTY, KANSAS.

The State of Kansas, Plaintiff,

v.

CHARLOTTE HACKNEY, MAXINE HEREFORD and BLONN MILLER,

partners, d/b/a BANNER DAIRY PRODUCTS, Fort Scott,

Kansas, Defendants.

No. 4138

Information

STATE OF KANSAS, BOURBON COUNTY, ss.

I, Charles M. Warren, the undersigned County Attorney of said County, in the name, and by the authority, and on behalf of the State of Kansas, come now here, and give the Court to understand and to be informed, that on the 17th day of February, 1962, in said County of Bourbon, and State of Kansas, one CHARLOTTE HACKNEY, MAXINE HEREFORD and BLONN MILLER, partners, d/b/a BANNER DAIRY PRODUCTS, Fort Scott, Kansas, did then and there unlawfully, feloniously and wilfully draw, make, utter, issue and deliver to DALE HEREFORD their certain check in writing, drawn upon The Thornton National Bank of Nevada, Missouri, in the sum of $678.83, payable to the order of Dale Hereford, knowing at the time of the making, drawing, uttering and delivery of said check that they had no funds on deposit in or credits with said bank, with which to pay said check upon presentation. A copy of said check in letters and figures is as follows, to-wit:

BANNER DAIRY PRODUCTS

No. 19726

Banner Ice Cream

Fort Scott, Kansas, Feb. 17, 1962

Pay to the order

of Dale Hereford

$678.83

The sum of $678 and 83 cts _ _Dollars

Banner Dairy Products

By M. Hereford

To THORNTON NATIONAL BANK

Of Nevada, Missouri

Bank shows: Insufficient funds.'

Fifty-one checks were dated in February, and two in January. Only one check was signed by Blonn, the petitioner herein. This check was dated 1-19-62 and the evidence disclosed that it was given for feed purchased from General Mills.

On October 31, 1962, the three defendants personally appeared for arraignment, being accompanied by their attorney, Forrest E. Short, of Fort Scott. At this time, all three defendants entered pleas of not guilty and bonds were set by the court. Later, and on November 16, 1962, tne same defendants again appeared in court, accompanied by the same counsel, and all three withdrew their not guilty pleas and entered pleas of guilty to all fifty-three counts. Sentencing was deferred until December 5, 1962, at which time the petitioner was sentenced to the Kansas State Penitentiary for not less than one nor more than five years on each felony count, the sentence to run concurrently, and to the county jail of Bourbon County for a period of six months on each misdemeanor count, sentences on counts forty-three and forty-four to run consecutively, and the other misdemeanor sentences to run concurrently. Similar sentences to the Women's Industrial Farm at Lansing and to the Bourbon County jail were imposed against Charlotte and Maxine.

The two sisters were granted immediate probation from the bench, while their more unfortunate brother languished in jail on the misdemeanor sentences until February 13, 1963, at which time he was placed on probation for a period of five years on certain conditions specified in the probation order.

On March 22, 1967, the present action was filed under the provisions of K.S.A. 60-1507 attacking the validity of Blonn's convictions and the sentences imposed against him. Before proceeding to the merits of the points raised on appeal, we should take a look at the state's contention that the petitioner was not in custody when he initiated this proceeding and hence had no right to maintain the action in the first place.

We believe the state's position cannot be upheld in view of the rationale underlying our decision in Baier v. State, 197 Kan. 602, 419 P.2d 865. In that case Baier, the petitioner, initiated proceedings under K.S.A. 60-1507 while he was a prisoner in the state penitentiary. Pending his appeal from an adverse decision of the trial court, Baier was released from the institution on parole, and the state thereupon contended his appeal had become moot.

In an opinion written by Justice O'Connor this court, after reviewing federal decisions construing both the federal habeas corpus statute (28 U.S.C. § 2241) and, the federal post conviction act (28 U.S.C. § 2255) rejected the contention advanced by the state, and held:

'A prisoner who institutes a K.S.A. 60-1507 proceeding, and is released on parole from the state penitentiary while his appeal from a denial of his motion by the district court is pending, remains in 'custody' within the meaning of the statute, and the questions presented are not thereby rendered moot.' (Syl. 1.)

The state attempts to distinguish the present case from Baier. It also urges this court not to extend application of the Baier rule to a situation where 'the petitioner is not confined, was not confined when he appealed and is merely serving out the terms of his parole.' We fail to see any essential distinction between the Baier case and the case at bar. The controlling question in each case is that: When is a person 'in custody' within the meaning of K.S.A. 60-1507 so as to be entitled to invoke the provisions of that statute by bringing proceedings thereunder?

In Baier we quoted from United States v. Washington, 341 F.2d 277 (3 Cir., 1965) where the federal court held that restraints which were imposed by an order of probation following conviction and suspension of execution of sentence, was sufficient 'custody' to enable a convicted defendant to seek relief under U.S.C. § 2255, and we applied the same rationale in defining 'custody' within the intendment of our own post conviction statute.

While the instant case differs from Baier, in that Mr. Miller was probated by the sentencing court, rather than paroled from the penitentiary, we...