State v. Malone

• Decision Date: 10 April 1965
• Docket Number: No. 43974,43974
• Citation: 194 Kan. 563,400 P.2d 712
• Parties: STATE of Kansas, Appellee, v. Dick MALONE, Appellant.
• Court: Kansas Supreme Court

Page 712

400 P.2d 712

194 Kan. 563

STATE of Kansas, Appellee, v. Dick MALONE, Appellant.

No. 43974.

Supreme Court of Kansas.

April 10, 1965.

Rehearing Denied May 10, 1965.

Syllabus by the Court

In an appeal by the defendant from a conviction on three counts for the crimes of forgery (K.S.A. 21-608), uttering (K.S.A. 21-609) and obtaining money by false pretenses (K.S.A. 21-551), respectively, the record is examined and it is held that under the facts, conditions and circumstances, and for reasons set forth at length in the opinion, the judgment rendered and the sentence imposed against the defendant under the Habitual Criminal Act (K.S.A. 21-107a) must be affirmed.

Eugene L. Pirtle, Wichita, argued the cause and was on the briefs for appellant.

A. J. Focht, Deputy County Atty., argued the cause, and Robert Londerholm, Atty. Gen., and Keith Sanborn, County Atty., were with him on the briefs for appellee.

PARKER, Chief Justice.

The defendant, Dick Malone, was tried and convicted in the district court of Sedgwick County on three counts for the crimes of forgery, uttering and obtaining money by false pretenses, respectively, and, upon the overruling of his motion for a new trial, was sentenced to confinement in the state penitentiary as an habitual criminal. This appeal followed.

At the outset it should be pointed out, that due to changes in personnel, this is a case where attorneys now representing the respective parties have to some extent reconstructed the record on appellate review with the result it is somewhat more confusing than it would have been if they had been in the case throughout its inception. In this connection it is interesting to note the defendant was represented by Terrance J. Muth, of Wichita, at his preliminary hearing; by Richard L. Hilton, of Wichita, at the trial court level; and on appellate review by Marvin Appling, of Wichita, who, upon his withdrawal from the case, was succeeded by Eugene L. Pirtle, of Wichita, defendant's present court-appointed counsel. And it should be noted that A. J. Focht, of Wichita, who represented the state on appeal, succeeded William J. Tomlinson, of Wichita, who represented the state at all stages of the proceedings in the court below.

It may be stated that all attorneys mentioned are competent and qualified and that they diligently represented their respective clients during the time they participated as counsel in the case at bar.

A proper understanding of the confusing and somewhat complicated factual situation disclosed by the record can best be achieved by quoting the statements of fact as made by the respective parties.

Defendant's statement, as set forth in his brief, reads:

'Acting upon reports and two or three calls from motels in the city of Wichita that an individual was representing himself as an agent of a construction company and was seeking advancement of money from the motel clerks, Wichita City Detectives Overman and Shackleford arrested the Defendant without a warrant at the Napa Motel. The Defendant was taken to the Wichita City Jail in Lt. Overman's car followed by Detectives Burrows and Hamlin in another police car.

'Detectives Burrows and Hamlin interrogated the Defendant at the city jail and conducted a search of the Defendant's person at that time on July 25, 1963, in one of the interrogation rooms.

'A warrant was thereafter issued and the Defendant was transported by the Marshal of the Court of Common Pleas to the Sedgwick County Jail. Defendant was charged with forgery and uttering under Case No. CR324 in violation of Sections 21-608, 21-628 of the General Statutes of Kansas, 1949. He was charged with obtaining money by use of false representations in violation of Section 21-551, 1949, General Statutes of Kansas, under Case No. CR323. On September 16, 1963, Defendant waived preliminary hearing through a court-appointed attorney in the Court of Common Pleas. A trial before a jury was commenced on December 10, 1963, and the jury found the Defendant guilty on all three counts on December 11, 1963. The Defendant filed his motion for a new trial on December 16, 1963, which was heard on December 20, 1963, and by the court overruled. The Defendant filed his notice of appeal from the court's ruling on a motion for a new trial and the judgment and sentence, pro se, forma pauperis. The trial judge overruled the pro se motion for appointment of appellate counsel on February 17, 1964. Pursuant to the direction of this court the trial judge appointed Marvin R. Appling to represent the Defendant on September 24, 1964. This attorney succeeded Mr. Appling upon his withdrawal.'

The state's statement, although lengthy, accurately reflects the facts of record required to dispose of most of the questions raised by the defendant as grounds for reversal of his judgment and sentence. Therefore such statement, which is necessarily limited to the state's own testimony because no evidence was presented by the defendant in his defense, will be quoted verbatim. It reads:

'The uncontroverted evidence in this case shows the following to be the facts:

'That on July 23, 1963, in the City of Wichita, Sedgwick County, Kansas, at a motel known as the Highway Inn, an employee who had been working for the Highway Inn Motel for only one week, saw in the course of her business as an employee the Appellant, Dick Malone, alias Stanley Hooker. He came to her place of business and represented himself as the head engineer of the Tobin Construction Company, coming in advance of his crew of workers. He told Miss Kelly that he needed to find rooms for his men who were coming in trucks, and that he would need advance cash to feed them. He took a reservation for himself, which he did not pay for, and requested of and received from Nedra Kelly an advancement of five twenty-dollars bills or one hundred dollars. He filled out a registration card and received a key to room number 12 in the Motel Unit from Miss Kelly. Miss Kelly, being a new employee, tried to find someone in a responsible position to okay the advance of money to the Appellant who was representing himself as the head of a large construction crew. Failing to find someone to okay the transaction, she relied on her past knowledge of having seen it done in the past, and advanced the money on that basis. The next morning, July 24, 1963, Miss Kelly became quite upset as a result of her cash drawer being $100.00 short, which was the amount she had advanced to the Appellant. One of her superiors, Margerite Fisher, checked the Room No. 12 which had been rented to the Appellant and found that it had not been occupied. At the early morning hour of 1:15 A.M. on July 25, 1963, the Appellant, Dick Malone, with another man identified as Bud Adams, came to the location of the Fireside Motel located in Wichita, Sedgwick County, Kansas. That time they talked to the owner and operator of the motel, Alvin Whitney. The appellant again represented himself as being with Tobin Construction Company and needing to put up truck drivers and their families which would be arriving later. At that particular time the Fireside Motel had only one available unit which the Appellant agreed to take, stating he could use the room for his boss and his family. The appellant alleged that he would have to feed the other men and their families and put them up for the night somewhere and that he would need some money to do this. The owner, Alvin Whitney, agreed to accept a check which was drawn on the Kansas City National Bank, Kansas City, Missouri, for $145.00 and signed by the Appellant as 'Dick Malone.' The keys to Unit 9 were given to the Appellant and he signed the register saying he would settle for the room later. That same morning after Mr. Whitney got to thinking about the matter while he was in bed at approximately 9:00 A.M., he decided that he had better do some checking on the Universal Check given to him by the Appellant. He picked up his telephone and called for the Kansas City National Bank at Kansas City, Missouri, and was unable to get in touch with such a bank. The room which had been rented for the boss of the Appellant, Mr. Tobin, was unoccupied and Mr. Tobin did not appear at the motel. The check given to the Fireside Motel was not honored. Mr. Whitney never endorsed the check nor did he deposit it in the bank after he discussed the matter with his banker at the Stockyards National Bank. Approximately 12 hours later, the Appellant was arrested by Detective Lieutenant William Overman and Detective Bill Shackelford at the Napa Motel in Wichita, Sedgwick County, Kansas, from there he was taken to the Sedgwick County Jail where he was interviewed by Detectives Bill Burrows and Stan Hamlin. The arrest of the Appellant came about as a result of information received by the Wichita Police Department that a man using the name of Dick Malone, had gone into a motel and represented himself to be an agent of the Tobin Construction Company with the idea of getting a room for a crew of eight or nine men and while so representing himself, asking for an advancement of money so that he could feed and house these men. This report had been investigated and it had been determined by the Police Department that there was in truth and in fact no such representative of this company in town.

'A complaint was received from the Highway Inn prior to the arrest of the Appellant. Following his arrest, he was taken to the Wichita Police Department where Detectives Stan Hamlin and Bill Burrows informed the Appellant that they were police detectives and that as a citizen the Appellant had certain rights. He did not have to tell the officers anything, that anything he did tell them either verbally or in writing, could be used against him in a court of law. He was informed that he had a right to make a telephone call to secure the services of an attorney, that he was not going to be threatened in any way nor was he going to be promised anything....