State v. Finney

• Decision Date: 05 May 1934
• Docket Number: 31785.
• Citation: 139 Kan. 578,32 P.2d 517
• Parties: STATE v. FINNEY.
• Court: Kansas Supreme Court

32 P.2d 517

139 Kan. 578

STATE v. FINNEY.

No. 31785.

Supreme Court of Kansas

May 5, 1934

Syllabus by the Court.

Where three counts of information charging forgery of municipal bonds were exactly alike, but state's evidence disclosed that three different bonds were exactly alike, and that each count charged forgery of different bond, refusing to compel state to elect on which count it would rely for conviction held not error, where defendant had known fact from beginning of trial (Rev. St. 1923, 62--1718).

Where information charged forgery of municipal bonds in 30 counts and proof established that there were 30 different municipal bonds forged, 30 forgeries held proven.

County attorney cannot bind trial court by promise as to whether sentence on plea of guilty to 31 counts of forgery will provide that some of counts shall run concurrently.

Whether plea of guilty should be permitted to be withdrawn is within trial court's discretion.

Denying defendant permission to withdraw plea of guilty of forgery held not abuse of discretion, where application supporting motion did not make claim that defendant was not guilty.

Statute providing that sentence on second or subsequent conviction should commence at termination of term of imprisonment adjudged on prior convictions held inapplicable to sentence where defendant had been convicted or several counts in same information and at same trial (Rev. St. 1923, 62--1512).

1. Where a defendant is charged with the crime of forgery of municipal bonds, and three of the counts of the information are exactly alike, but the evidence of the state discloses that the three different bonds were exactly alike, and each count charged the forgery of a different bond, and the defendant had known this from the beginning of the trial, the state should not be forced to elect upon which count it relied for conviction, since each count is good.

2. Where an information charged the crime of forgery in thirty counts, and the proof was that there were thirty different municipal bonds forged, there were thirty counts of forgery proven.

3. The county attorney has no authority to bind the trial court by a promise as to whether a sentence on a plea of guilty to thirty-one counts of forgery will provide that some of the counts shall run concurrently.

4. Whether a trial court will permit the withdrawal of a plea of guilty or not is a matter in which the court has a wide discretion.

5. The record is examined, and it is held that it was not an abuse of the court's discretion to deny a motion for permission to withdraw a plea of guilty.

6. R S. 62--1512, does not apply to a sentence where the defendant has been convicted of several counts in the same information and at the same trial so that a district court may not provide in a sentence after such a conviction that the sentence on some of the counts may run concurrently.

Appeal from District Court, Shawnee County, Division No. 2; Paul H Heinz, Judge.

Ronald Finney was prosecuted and pleaded guilty to forgery, and from an order denying defendant permission to withdraw his plea of guilty, defendant appeals.

Judgment affirmed, and cause remanded, with instructions.

SMITH HARVEY, and BURCH, JJ., dissenting in part.

J. J. Schenck and C. P. Schenck, both of Topeka, for appellant.

Roland Boynton, Atty. Gen., Everett E. Steerman, Asst. Atty. Gen., and Hugo T. Wedell, of Chanute, for the State.

SMITH Justice.

Defendant was prosecuted and pleaded guilty to forgery. He later asked the court to permit him to withdraw his plea of guilty. This was denied, and defendant appeals.

At the start of the trial the defendant was informed against in sixty counts. Thirty of these were for forgery of municipal bonds and thirty of them were for uttering forged municipal bonds. The odd numbered counts are the forgery counts. The even numbered ones are the uttering counts. The charge had to do with the defendant forging an issue of thirty bonds of the city of Hutchinson in the amount of $1,000 each. The only difference in the bonds was that they were issued in series of three; that is, three bonds fell due on the same date. Because of this, counts 1, 3, and 5 were exactly alike, since each count charged the forgery of a bond for the same amount as the others and due on the same date. The same is true of counts 7, 9, and 11, and so on for the entire information.

This situation caused counsel for defendant to level various motions to quash and motions to compel the state to elect as to which counts it intended to rely upon for conviction. On the record without an examination of the facts and circumstances it does appear that there are only ten good forgery counts charged. At the outset, it would be well to state that, since the evidence showed that the uttering of the bonds had been done all as one transaction at the same time and to the same person, all the uttering counts were dismissed except one. That left the defendant charged on the thirty-one counts instead of sixty.

The motion that was most vigorously urged during the oral argument and in the brief is that made at the close of the state's case to require the state to elect upon which one of each of the series of three counts it relied on for conviction. At this stage of the case defendant was aware that the state had based each count on the forgery of a separate and distinct bond. In fact, this had been apparent ever since the preliminary examination. Defendant had seen the forged instruments and knew that they were issued, so that there were ten sets of three each, and that all the bonds in each group of three were exactly alike. It was necessary that each bond be described in the count charging defendant with forging it. The bonds might have been distinguished by giving each one of them a number and designating it by that number. It is difficult, however, to understand how this would have been of any benefit to defendant. It is also difficult to see how defendant was prejudiced in any way by the failure of the state to so designate the bonds in the counts. If it were a case where the state had used evidence with reference to the same bond to prove all three counts, then the defendant would have been entitled to complain, and the trial court would have compelled an election at once. But such was not the case here. This argument of defendant may be disposed of on the authority of R. S. 62--1718, which provides as follows: "On an appeal, the court must give judgment without regard to technical errors or defects, or to exceptions which do not affect the substantial rights of the parties." See, also, State v. Clark, 125 Kan. 791, 266 P. 37.

We hold that it was not error for the trial court to deny the motion of the defendant to compel the state to elect as to which counts it relied upon.

Defendant also raised by appropriate motion the question of whether there were one or thirty counts of forgeries proven. Here it should be noted that there were thirty forged bonds introduced; each bond was an original; and each required the affixing of signatures and a seal to render it valid. There were the forgeries of signatures of the municipal officers of the city of Hutchinson on each bond. The placing of the seal of the city was a separate and distinct act on each bond. The rule is laid down in 26 C. J. 956. Section 112 is as follows: "Although separate instruments were forged by a defendant on the same date and as a part of the same general transaction, the forgery of each constitutes a separate offense, punishable under a separate indictment or count; and although several drafts may be uttered as one indivisible act, the forgery of each is a separate offense." See, also, United States v. Carpenter (C. C. A.) 151 F. 214, 9 L.R.A. (N. S.) 1043, 10 Ann.Cas. 509; also Barton v. State, 23 Wis. 587.

The rule is stated in 12 R. C. L. 162. Section 24 is as follows: "As to several acts of forgery, each generally constitutes a separate crime, even though they are committed in the course of a continuous transaction, on the same date, or even on the same piece of paper, unless each act constitutes merely a component part of an indivisible instrument."

We have concluded that the argument of defendant that there was only one forgery proven is not sound. Since that conclusion has been reached, the result is that, when the state rested its case, there were thirty counts of forgery and one count of uttering a forged instrument upon which the state was entitled to go to the jury.

After the motion spoken of above had been denied and at the conclusion of the state's case, counsel for the state and counsel for the defendant held a series of conferences. The object of these conferences was to reach an agreement whereby defendant might plead guilty to a lesser number of counts than were charged in the information.

These conferences were held in the judge's chambers. The judge seems to have been present at some of them and not present at some. There is a sharp difference in the statements of counsel as to just what transpired. Counsel for defense insist that the final agreement was that defendant should plead guilty to thirty-one counts, and he would receive a sentence providing that sixteen of the thirty-one counts should run concurrently with the fifteen counts, and that sentence on the fifteen counts should run consecutively. The county attorney and his assistant state that their understanding was that the county attorney would recommend that the sentence should be that fifteen of the counts would run consecutively and the sentences on the remaining sixteen counts should run concurrently with the sentences on the first fifteen counts. They state that this arrangement had the approval of the trial judge. The special prose...