State v. Hinkle

• Decision Date: 10 April 1954
• Docket Number: No. 39361,39361
• Citation: State v. Hinkle, 176 Kan. 152, 269 P.2d 465 (Kan. 1954)
• Parties: STATE v. HINKLE.
• Court: Kansas Supreme Court

Page 465

269 P.2d 465

176 Kan. 152

STATE v. HINKLE.

No. 39361.

Supreme Court of Kansas.

April 10, 1954.

Syllabus by the Court.

1. In the trial of one charged with a felony the court did not err in requiring the defendant to be personally present during the trial.

2. The county attorney, having received informal complaints that several checks had been given to merchants which had been returned unpaid, some of them under cirsumstances suggesting forgeries, filed in the county court an appropriate application for an inquisition and had a subpoena issued for three witnesses; one of them was later prosecuted. Learning the sheriff was inquiring for her she went to his office, was served with this subpoena and met the county attorney, the judge of the county court and the sheriff. There no formal inquisition was held. She was not sworn, no record was kept of what transpired. She was told by the county attorney that he was investigating possible forgery of checks and asked if she would assist in the investigation by writing some names. There was evidence tending to show that she was told she need not write anything and that whatever she did might be used against her, and otherwise advised of her rights. She expressed willingness to help in the investigation and at the request of the county attorney, wrote the name of a person later proved to have been forged on a check, and some other names requested and was excused. Held: When later arrested and charged with passing forged checks with knowledge that they had been forged she is not entitled to immunity under G.S.1949, 62-301.

H. N. Hyland, Washington, argued the cause, and J. R. Hyland, Washington, was with him on the briefs, for appellant.

Rowland Edwards, County Atty., Waterville, argued the cause, and Harold R. Fatzer, Atty. Gen., and Paul E. Wilson, Asst. Atty. Gen., were with him on the briefs, for appellee.

HARVEY, Chief Justice.

The appellant, Edna Mae Hinkle, alias Edna Mae Spratt, was duly charged by an information filed in the district court of Marshall county with second degree forgery in ten counts, each count charging a separate offense. Upon a jury trial she was found guilty on seven counts and not guilty on three counts. Her motion for a new trial was considered and overruled and she was duly sentenced to imprisonment at the State Industrial Farm for Women at Lansing, Kansas.

The checks described in the counts upon which conviction was had, with their respective dates, purported makers, payees, banks drawn upon and amounts are listed as follows:

Date
                1953     Maker         Payee              Bank                           Amount
                July 10  Edna Weiche   Montgomery Ward    Greenleaf State                $55.00
                                                            Bank
                                                                              Greenleaf, Kansas
                July 15  Lester        Boogarts Supply    Greenleaf State                 50.00
                           Boljack       Co.                Bank
                                                                              Greenleaf, Kansas
                Aug. 5   Edna Clark    Hested Stores Co.  Community State                 35.00
                                                            Bank
                                                                                Hanover, Kansas
                Aug. -   Ernest Clark   Safeway Stores,   State Exchange                  40.00
                                         Inc.               Bank
                                                                                 Barnes, Kansas
                Aug. 13  Lester        Safeway Stores,    Greenleaf State                 45.00
                           Bolejack      Inc.               Bank
                                                                              Greenleaf, Kansas
                Aug. 15  Oscar Samsel  Safeway Stores,    State Exchange                  50.00
                                         Inc.               Bank
                                                                                 Barnes, Kansas
                Aug. -   Henry Samsel  Ben Franklin       State Exchange                  30.00
                                         Store              Bank
                                                                                 Barnes, Kansas
                                                                              -----------------
                                                          Total                          305.00
                

She has appealed and contends the court erred (1) in overruling her counsel's motion that she not be required to be present during the trial; (2) in failing to grant immunity to her under the inquisition statute; (3) in admitting evidence of a sample of her handwriting taken at such inquisition and the insufficient proof that the sample was voluntarily given; (4) in permitting evidence of a handwriting expert; (5) in refusing to sustain her demurrer to evidence and motion for discharge; (6) in allowing the endorsement of additional witnesses on the information after the trial commenced; (7) in permitting the amended information to stand since it charged another and distinct offense from that charged in the complaint; (8) in permitting further testimony of new matter by the expert witness; and, (9) in permitting the charge in count one to stand, there being a fatal variance between the charge and the evidence produced.

Appellant's correct surname is Spratt but for some reason she is frequently called by her maiden name of Hinkle. At the trial in October, 1953, she testified that she was thirty-four years old; that before her marriage she had lived with her parents on a farm near Greenleaf; that she attended grade school and four years of high school; that she was married to Arthur Spratt and lived with him nine and one-half years and was divorced in June of 1951; that she has a child eleven years old and received $30 per month child support; that since her divorce she had worked at the Perry Packing Plant at Hanover, Kansas, and later at the Jayhawk Cafe in Marysville, Kansas, where she received about $20 per week. She denied cashing any of the checks.

The evidence makes it clear that each of the checks was a forgery. There is no contention to the contrary. There was evidence also that appellant passed each of the checks, by witnesses the court and jury were justified in believing, and this is controverted only by defendant's plea of not guilty and her testimony that she did not cash or pass any of the checks and had never seen them before the trial. We shall summarize the evidence as to her passing only one of them.

On July 10, 1953, a lady went to the Montgomery Ward store at Marysville and bought about $12 worth of merchandise. She gave the clerk who waited upon her, Mrs. Saville, a universal check on which only the name of the drawer 'Edna Weiche' was written and gave the clerk to understand that was her sister. She requested the clerk to fill in the check by writing the name of the drawee as the State Exchange Bank, Barnes, Kansas, the payee as Montgomery Ward & Co. and the amount as $55. The clerk did this and then took it to the assistant manager, Mr. Nelson, for his approval. He okayed the check but directed the clerk to have the lady endorse her name on the back thereof. The clerk reported this to the lady who expressed reluctance but did endorse on the back of the check the name 'Mrs. Linda Smith, Barnes, Kansas.' The clerk cashed the check giving the lady the difference between the price of the goods purchased and amount of the check. A few days later the lady was in the store and talked to Mrs. Saville and remarked to her that she sure did hate to sign her name on that check. Sometime later the check was returned to Montgomery Ward by the Barnes bank marked, 'no account--try Greenleaf Bank.' The manager of the store, Mr. Rayborn, knew Edna Weiche as a customer and upon looking up her account found her bank was the Greenleaf State Bank. Learning from Mrs. Saville the circumstances of her taking the check Rayborn assumed the Barnes bank was written inadvertently and instructed the bookkeeper to write in the name of the Greenleaf bank over the name of the Barnes bank. This was done and the check was again sent through for collection. It was later received from the Greenleaf bank marked, 'signature of drawer forged.' In the meantime the county attorney had been advised by several different parties of forged checks.

On August 18, 1953, Mr. Rayborn took the check to the county attorney who prepared a complaint charging forgery against Jane Doe, alias Linda Smith, which was signed by Rayborn. On the next day the county attorney filed with the county court an 'Affidavit in support of deposition.' This recited briefly the fact that the check was given to Montgomery Ward; that the affiant was informed and believed the name Edna Weiche on the check and the endorsement of Linda Smith were forgeries, and that the crime of forgery was committed by some person. It included a request that subpoenas be issued for witnesses named in a praccipe that day filed with the court for the purpose of testifying concerning offenses against the laws of the state. Upon the strength of that affidavit the judge of the court issued a subpoena for Edna Mae Hinkle, also known as Edna Mae Spratt, Mrs. Tom Saville, and Mr. Donald Nelson. The sheriff took the subpoena and went to the Jayhawk Cafe and inquired for Edna Mae Hinkle and was told she worked there but it was not her hours for work. When appellant returned to the cafe she was told the sheriff had been there and inquired for her and she called the sheriff and asked if he wanted to see her and was told he did. Appellant went then to the sheriff's office where he gave her the subpoena and they went to the county court. There were present the county judge, the county attorney, two employees from Montgomery Ward, and the sheriff.

The appellant was not sworn....