State v. Naillieux
| Decision Date | 11 April 1964 |
| Docket Number | No. 43719,43719 |
| Citation | 192 Kan. 809,391 P.2d 140 |
| Parties | The STATE of Kansas, Appellee, v. W. H. NAILLIEUX, Also Known as Wendell H. Naillieux, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
In a criminal prosecution for commission of the crime of forgery in the second degree, under G.S.1949, 21-608, as more fully reflected in the opinion, the record is examined, and it is held: The judge of the city court of Salina at defendant's preliminary examination properly advised him of the crime with which he was charged in the complaint, he afforded defendant opportunity to have counsel, and properly bound defendant over to the district court for trial on the charge of forgery in the second degree. It is further held, defendant has failed to show that any of his substantial rights were prejudiced either in the preliminary examination or in the trial of the case in the district court, and, therefore, this court will not disturb the judgment and sentence of the trial court based on the verdict of the jury finding defendant guilty of the offense charged.
Kenneth E. Perry, Concordia, argued the cause and was on the briefs for appellant.
John Weckel, County Atty., argued the cause, and William M. Ferguson, Atty. Gen., was with him on the briefs for appellee.
This is an appeal by defendant in a criminal prosecution wherein the jury found defendant guilty of forgery in the second degree, under G.S.1949, 21-608, and the district court of Saline county pronounced sentence upon defendant to serve not to exceed ten years in the state penitentiary.
The notice of appeal was based upon five grounds including the trial court's finding that defendant was guilty of forgery in the second degree; the court's orders overruling defendant's motions for new trial and for arrest of judgment in regard to count I, forgery; and the sentencing of defendant not to exceed ten years in the state penitentiary. The other ground will not be discussed since the trial court sustained defendant's motion in arrest of judgment as to a second count of the information.
Defendant's counsel raises thirteen specifications of error which we shall discuss as presented by the parties in their arguments and briefs.
The record shows that on August 25, 1962, while defendant and Jesse James Waite, a former school mate, were drinking together in Rosie's Roundup located on Fifth Street in Salina, Kansas, they ran out of funds and decided to write a check to get more money so they could continue to drink. They obtained a check blank and Waite wrote a check in the amount of $19.60 payable to defendant, signing it 'Don J. Wilson', and adding the word 'labor' at the bottom of the check. Waite did not know whether there was a Don J. Wilson in Salina or whether there actually was a person by that name. Their first attempt to cash the check was unsuccessful because the check did not have an account number on it. Defendant added an account number to the check and they went to a Safeway Store where defendant cashed the check and purchased a few groceries while Waite waited in the car. He then returned to the car and gave Waite $6.00 from the proceeds of the check. Defendant was subsequently arrested and brought before the judge of the city court of Salina under a complaint charging forgery in the second degree in violation of G.S.1949, 21-608, where he was arraigned and a preliminary hearing was had.
We should here pause to point out that defendant's counsel urges a reversal of this case because the judge of the city court failed to appoint counsel to represent him in that court since he was an indigent defendant. That judge was called as a witness in the hearing on the motion for new trial in the district court when defendant raised this question for the first time. The judge's testimony was that while no verbatim record had been made of the preliminary hearing, defendant was advised of the offenses charged against him and they were read to him. In addition, defendant was advised he had a right to obtain counsel but that the city court judge had no authority to appoint counsel for him. Defendant made no request for appointment of counsel at the preliminary hearing.
In connection with the above, attention is called to G.S.1961 Supp. 62-1304 which applies to a defendant '* * * about to be arraigned upon an indictment or information for any offense against the laws of this state * * *.' Defendant's counsel concedes the above statute does not require appointment of counsel for a preliminary hearing but he cites Martin v. Edmondson, 176 Kan. 374, 270 P.2d 791, where the rule is stated thus:
'While * * * at a preliminary hearing a defendant may be assisted by counsel in such examination, it does not require the examining magistrate to appoint counsel for such defendant upon his demand therefor, and refusal to appoint counsel in such cases is not error.' (Syl. p1.) (Our emphasis.)
See, also, State v. Crowe, 190 Kan. 658, 378 P.2d 89, where it was further held:
(Syl. p1. )
Thus we cannot agree with present counsel for defendant that defendant did not have a valid preliminary examination. At the conclusion of the preliminary hearing the city court judge bound defendant over for trial in the district court of Saline county after finding that a crime had been committed and there was probable cause to believe defendant had committed it under G.S.1949, 21-608 'as amended'. Defendant's counsel argues that use of the last words 'as amended' indicated confusion in the mind of the city court judge and, therefore, he could not possibly have apprised defendant of the exact crime with which he was charged. We think this proposition is without merit because it is admitted the statute in question has not been amended and the use of the words 'as amended' would merely be surplusage.
It is claimed defendant was prejudiced in his preliminary hearing because the state's evidence, as testified to by a handwriting expert, was that the same person who wrote the check (Waite) also wrote the endorsement on the back thereof. We do not believe this prejudiced defendant for the reason...
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