State v. Kendrick, 53231

• Decision Date: 13 January 1970
• Docket Number: No. 53231,53231
• Citation: 173 N.W.2d 560
• Parties: STATE of Iowa, Appellee, v. Arthur Elmer KENDRICK, Appellant.
• Court: Iowa Supreme Court

Page 560

173 N.W.2d 560

STATE of Iowa, Appellee, v. Arthur Elmer KENDRICK, Appellant.

No. 53231.

Supreme Court of Iowa.

Jan. 13, 1970.

Gene L. Needles, Des Moines, for appellant.

Richard C. Turner, Atty. Gen., and William W. Garretson, Asst. Atty. Gen., for appellee.

LeGRAND, Justice.

This appeal raises three issues upon which defendant relies for reversal. They are:

(1) Failure of the State to prove commission of the crime in the specific manner alleged in the indictment;

(2) Error in admitting certain evidence obtained from defendant in violation of his constitutional right against self-incrimination under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974; and

(3) Error in failing to declare a mistrial because a State witness referred to defendant's 'past record.'

I. A grand jury indictment accused defendant of 'forgery as defined in section 718.1 of the 1966 Code of Iowa (in that) Arthur Elmer Kendrick forged a certain instrument in writing purporting to be a bank check * * * drawn on the Central National Bank and Trust Company, Des Moines, Iowa dated January 5, 1968 in the amount of $29.85.'

The evidence showed defendant forged the indorsement of John E. Sheppard, a fellow employee, named as payee in a check issued by their common employer, R. L. Koder Co., Inc. Defendant then cashed the instrument at Griger's Food Fair, a Des Moines supermarket.

Defendant claims there is a fatal variance between the charge and the proof. He insists the State should have been required to show forgery in the Making, rather than the Indorsement, of the check in order to convict under this indictment.

Forgery is defined as the false making or materially altering, with intent to defraud, of any writing, which, if genuine might apparently be of legal efficacy, or the foundation of a legal liability. State v. Couch, 250 Iowa 56, 58, 92 N.W.2d 580, 582, and citations; State v. Gruver, 260 Iowa 131, 134, 148 N.W.2d 405, 408.

Section 718.1, Code of 1966, provides in part:

'If any person, with intent to defraud, falsely make, alter, forge, or counterfeit any:

'5. * * * bill of exchange * * *; or

'8. Indorsement or assignment of any bill of exchange * * *; or

'9. Instrument in writing, being, or purporting to be, the act of another, by which any pecuniary demand or obligation * * * is or purports to be created * * * he shall be imprisoned in the penitentiary not more than ten years * * *.'

Defendant's argument rests upon State v. Hochmuth, 256 Iowa 442, 445, 127 N.W.2d 658, 659, and State v. Upton, Iowa, 167 N.W.2d 625, 627, where we held the State need not specify the particular manner in which a crime is committed; but, if it elects to do so, the proof must follow the allegation. We believe defendant unreasonably restricts the language of the indictment in asking us to reverse on this ground.

As we understand defendant's theory, it goes like this. The indictment charges him specifically under subsection 5 of section 718.1 with making or forging a check. The State, if it proved anything, proved he forged an indorsement to the check in violation of subsection 8 of that section. The conviction therefore cannot stand because, under Hochmuth and Upton, the State must prove the commission of the crime in the manner alleged in the indictment.

Defendant's position depends on the soundness of his claim the indictment alleges a specific violation of subsection 5. We do not believe it did. Defendant's house-of-cards collapses because he completely ignores subsection 9, dealing with the forgery of any 'instrument in writing.' This is the very language used in the indictment, and both the charge and the evidence support a conviction thereunder.

State v. Couch, supra, supports the result reached here. See also 37 C.J.S. Forgery section 34, page 54, and Hoffman v. United States, 9 C.C.A., 244 F.2d 378, 382.

II. Defendant next complains because several handwriting exemplars and certain oral statements made by him were erroneously admitted into evidence, despite his assertion they were obtained in violation of his right against self-incrimination. He says the evidence should have been excluded under Miranda v. Arizona, supra.

Again we disagree with defendant. In the first place we point out that handwriting samples are not within the privilege. We so held in State v. Sefcheck, Iowa, 157 N.W.2d 128, 135, relying on Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 and Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178. That distinction is unimportant here, however, because we hold defendant voluntarily gave both the exemplars and the oral statements after having been fully advised of his constitutional rights under Miranda.

Police officers twice interrogated defendant prior to his arrest. Both conversations were held in a police car outside defendant's home. Police officer Don Coxe testified he told defendant on each occasion he need not talk with the officers; that he was entitled to an attorney and that 'if he didn't have the money' the State would furnish him one; and that anything he said or did 'could be used against him in court.' This warning was given prior to the time defendant furnished any information, either by way of handwriting sample or oral statement. The officer further testified defendant said he understood what the officer was telling him and was willing to talk about the matter. The circumstances here are far more favorable to the State's position than those in State v. Davis, Iowa, 157 N.W.2d 907, where we held a defendant's statement admissible.

Defendant does not dispute the testimony of Officer Coxe, but argues he gave the information 'reluctantly' and the officers should have stopped interrogating him as soon as this became manifest.

No authority has been cited for this proposition. Where, as here, the required warnings are fully and fairly given and where a defendant states he understands them and is nevertheless willing to talk, we know of no case in which a statement voluntarily, though reluctantly, given has been excluded. Under this...