State v. Handke, 41278

• Decision Date: 13 June 1959
• Docket Number: No. 41278,41278
• Parties: STATE of Kansas, Appellee, v. Theodore L. HANDKE, Appellant.
• Court: Kansas Supreme Court

Page 877

340 P.2d 877

185 Kan. 38

STATE of Kansas, Appellee, v. Theodore L. HANDKE, Appellant.

No. 41278.

Supreme Court of Kansas.

June 13, 1959.

Syllabus by the Court.

The record in a criminal action for obtaining money by false pretenses in violation of G.S.1949, 21-551, examined and held: (1) the district court did not err (a) in overruling the defendant's plea in abatement upon the ground he had not been given a preliminary examination upon the charge of obtaining money by false pretenses from a person (Bettie Pankey) whose name did not appear in the complaint or warrant when the preliminary examination was held; (b) in denying the defendant's motion for a mistrial after one of his witnesses was arrested for perjury outside the presence of the jury and without the knowledge of the court; (c) in overruling the defendant's motion to strike the testimony of several witnesses from Topeka and Kansas City, and (d) in permitting the complaining witness and his wife, over the defendant's objection, to testify he orally represented to them that he would build their house and have them moved into it in 60 to 90 days, when their written contract provided the defendant would have one year in which to build the house; and (2) the state's evidence was sufficient to sustain the charge alleged in the amended information.

Joseph P. Jenkins, Kansas City, Joseph Cohen, Charles S. Schnider and John E. Shamberg, Kansas City, and Maurice P. O'Keefe, Sr., and Terence D. O'Keefe, Atchison, on the brief, for appellant.

Robert F. Duncan, County Atty., Atchison, John Anderson, Jr., Atty. Gen., and Robert Roth, Asst. Atty. Gen., on the brief, for appellee.

FATZER, Justice.

The defendant, Theodore L. Handke, was convicted on a charge of obtaining $3,000 from Herman F. and Bettie Pankey by false pretenses in violation of G.S.1949, 21-551. He appeals from the overruling of his motion for a new trial, the judgment of conviction, and the sentence of confinement in the State Penitentiary for a term not exceeding five years.

The defendant is a resident of Leavenworth, and was engaged in the business of building houses. From November, 1956, to April, 1957, he entered into construction contracts with numerous persons in Topeka and Kansas City under the name of Handke Construction Co., and later, Crest Homes. Several homes were built by him in Leavenworth from 1953 to 1956. On June 26, 1957, defendant went to Atchison and contacted Mrs. R. H. Abbuehl, whom he employed to receive telephone calls on his behalf from prospective buyers or people who wanted houses built. She communicated that information to defendant, who either telephoned her every morning or stopped at her house. He would not give her his address but did give her his telephone number. He told her that the Built-Right Construction Company was the name of the company that would do the building.

Through this medium the defendant contacted the complaining witnesses, Herman F. and Bettie Pankey, husband and wife, and called upon them at their home on June 30, 1957, where they discussed the construction of a house. Defendant showed them some plan books containing pictures of houses. When they had picked out the house they wanted, he said he would have the plans drawn up in his office. He told the Pankeys that he was building houses in Topeka and Kansas City; that he had three crews of men working for him in Topeka and Kansas City, one crew to construct the basement and foundation, one crew to construct and rough-in the house, and one crew to do the finishing work; that he had built houses on Gutherie Circle, a part of Sunnyhill Subdivision in Atchison; that he owned property out by the hospital, by St. Joseph's church, at 12th and Mound Streets, as well as three lots at Gutherie Circle and they could have their choice, and that he would commence work immediately and would build the house and have them moved into it in 60 to 90 days.

The Pankeys selected a lot in Gutherie Circle and the parties entered into a construction contract which provided for the building of a house by defendant for the sum of $12,500. The contract was a printed form provided by the defendant. After the contract was signed and at the defendant's request the Pankeys gave him a check for $3,000 as a down payment. The defendant told them he needed the money to purchase building materials so construction of the house could begin immediately, otherwise he would have to borrow money himself, which would delay commencement of construction. The contract provided that defendant would have one year in which to build the house, and at the time the agreement was signed Pankey objected to this provision but the defendant said there was no reason to change it; that he owned the company and would keep his word and build the house within 60 to 90 days. Pankey read the contract before he signed it but his wife did not.

Not hearing from the defendant for some time after the contract was signed, Pankey went to Leavenworth on July 12, 1957, to see the defendant and talk to him about 'some things he had heard about him,' but was unable to locate him. On July 22, 1957 Pankey made another trip to Leavenworth to see the defendant and this time saw a note on his office door stating that he was on vacation and would re-open the office on August 10, 1957.

The next day, July 23, 1957, Pankey consulted the county attorney of Atchison county and that same day they went to Leavenworth to find the defendant, but could not locate him. The Pankeys did not talk with defendant again during July, but did receive a telegram from him on July 31, 1957, and later a letter stating that he would send the blueprints of their house before too long. Later they received a questionnaire for an FHA loan, and on August 10, 1957, they received the blueprints.

On August 3, 1957, a complaint was filed charging the defendant with obtaining money by false pretenses from Herman Pankey, and a warrant was issued for his arrest. On August 9, 1957, the defendant was arrested and placed in jail where he remained until August 30, 1957, at which time a preliminary hearing was held and he was discharged. Following his discharge, and on the same day the same charges were re-filed and he was re-arrested but was released on bond. At the second preliminary hearing on April 4, 1958, he was bound over for trial at the next regular term of the district court for a violation of G.S.1949, 21-551.

On April 4, 1958, an information was filed containing one count charging the defendant with obtaining $3,000 on July 1, 1957, from Herman and Bettie Pankey by false and fraudulent misrepresentations and pretenses. On April 24, 1958, an amended information was filed, alleging the same offense but more detailed, containing seven separate false and fraudulent misrepresentations and pretenses. The defendant then filed a plea in abatement upon grounds that he had not been bound over for trial for any alleged crime against Bettie Pankey, which was overruled, and upon trial by a jury the defendant was found guilty.

The questions presented in this appeal will be disposed of in the order in which they were raised. It is first contended that since the amended information charged the defendant with obtaining money by false pretenses from a person (Bettie Pankey) whose name did not appear on the complaint or warrant when the preliminary hearing was held, he was denied the right to have a preliminary examination on that charge contrary to the provisions of G.S.1949, 62-805, and the district court erred in overruling his plea in abatement. We think the contention is without merit.

In the early case of State v. Smith, 13 Kan. 274, 296, the defendant was arrested on a charge of embezzling a certain sum of money belonging to the county of Leavenworth. The information charged him with embezzling a larger sum of money belonging to several designated funds in the treasury of that county. Defendant's plea in abatement upon the ground that he did not have a preliminary examination as to the embezzlement of any money belonging to any person other than Leavenworth county was overruled, and this court held there was no error in such ruling. Furthermore, it has been said, that an information is to be framed according to the facts developed at the preliminary examination and it is not required to correspond to the complaint (State v. Wisdom, 99 Kan. 802, 803, 162 P. 1174).

One of the principal purposes of a preliminary examination is to give a defendant reasonable notice as to the character of the alleged offense and to apprise him of the nature of the evidence he will be required to meet when he is prosecuted in the district court. It is not necessary that all of the details and technical averments required in an information be set forth in the papers used at the preliminary examination, and the defendant should take notice, from the evidence introduced by the state on such examination as well as from the papers in the case, of the nature and character of the offense charged against him (Cunningham v. Hoffman, 179 Kan. 609, 611, 612, 296 P.2d 1081; State v. Rangel, 169 Kan. 194, 217 P.2d 1063; State v. Johnson, 70 Kan. 861, 868, 79 P. 732).

In the instant case the defendant was well aware of the fact that Herman and Bettie Pankey were husband and wife; that each participated in the negotiations leading up to the signing of the contract and in the giving of the $3,000 check as a down payment. The contract was signed by both Herman and Bettie Pankey and the $3,000 check was a personalized check with their names printed on its face. In its brief the state asserts, and it is not denied by defendant, that there was an abundance of testimony the $3,000 check was drawn on the Pankeys' joint account. Under such circumstances, it cannot be said that the defendant was not given reasonable notice of the character and nature of the offense with which he was charged or that he was in any way surprised...