State v. Walden, 46354
| Decision Date | 06 November 1971 |
| Docket Number | No. 46354,46354 |
| Citation | 490 P.2d 370,208 Kan. 163 |
| Parties | STATE of Kansas, Appellant, v. Clinton WALDEN, a/k/a Clint Stout, a/k/a Clinton Stout, Appellee. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. Ordinarily criminal statutes are to be strictly construed but the rule of strict construction does not permit or justify a disregard of manifest legislative intention appearing from plain and unambiguous language used in the statute under consideration.
2. K.S.A. 1970 Supp. 21-3708 'Habitually giving worthless checks' defines a separate and distinct criminal offense and prescribes the elements thereof.
Robert G. Frey, County Atty., argued the cause and Vern Miller, Atty. Gen., was with him on the brief for appellant.
James M. Morain, of Vance, Hobble, Neubauer, Nordling & Sharp, Liberal, argued the cause and was on the brief for appellee.
The question presented in this State appeal is whether section 21-3708 of our New Criminal Code (K.S.A. 1970 Supp.) entitled 'Habitually giving worthless checks' is a form of an Habitual Criminal Act or a declaration of a distinct and separate criminal offense.
Defendant was charged with two violations of the statute in two counts of an information filed on August 14, 1970. The information reads in full as follows:
'COUNT I
'I, Robert G. Frey, the undersigned, County Attorney of said County, in the name, by the authority, and on behalf of the State of Kansas, come now here and give the Court to understand and be informed that on the 5th day of July, A. D., 1970, in said County of Seward and State of Kansas, one Clint Walden a/k/a Clint Stout a/k/a Clinton Stout did then and there unlawfully, feloniously, and willfully give a worthless check as defined by K.S.A. 21-3707, in the sum of $20.00 the said Clint Walden having been twice convicted of giving a worthless check on the 23rd day of May, 1970, in the County of Seward, State of Kansas, and on the 20th day of June, 1970, in the County of Seward, State of Kansas, both of said convictions having occurred within two (2) years immediately preceding the giving of said worthless check alleged above, which check is as follows:
Payee and endorsed: KT Oil Company
Dated: July 5, 1970.
Drawn upon: First National Bank,
Liberal, Kansas
Signed: Clint Stout
Returned: No account
Amount: $20.00
In violation of K.S.A. 21-3708, penalty section 21-4501(d).
'COUNT II
'That, on or about the 19th day of July, 1970, said Clint Walden did then and there unlawfully, willfully and feloniously give a worthless check as defined by K.S.A. 21-3707, in the sum $30.00, the said Clint Walden having been twice convicted of giving a worthless check on the 23rd day of May, 1970, in the County of Seward, State of Kansas, and on the 20th day of June, 1970, in the County of Seward, State of Kansas, both of said convictions having occurred within two (2) years immediately preceding the giving of said worthless check alleged above, which said check is as follows:
Liberal, Kansas
Signed: Clint Stout
Returned: No account
Amount: $30.00.
In violation of K.S.A. 21-3708, penalty section 21-4501(d).
'/s/ Robert G. Frey
'Seward County Attorney
'Filed August 14, 1970.'
On August 21, 1970, the parties appeared before the district court. Defendant made an oral motion to dismiss. The motion was set for hearing on September 4, 1970, when it was sustained. This appeal by the State ensued.
K.S.A. 1970 Supp. 21-3708 reads:
'(1) Habitually giving worthless checks is:
'(a) Giving a worthless check, as defined by section 21-3707, drawn for less than fifty dollars ($50), by a person who has within two (2) years immediately preceding the giving of such worthless check, been twice convicted of giving worthless checks; or
'(b) Giving two (2) or more worthless checks, as defined by section 21-3707, each drawn for less than fifty dollars ($50), where the total amount for which such worthless checks are drawn is fifty dollars ($50) or more and each of such checks were given on the same day.
'(3) Habitually giving worthless checks is a class D felony.'
Defendant contended before the district court that 21-3708 is in fact an habitual criminal statute designed and intended to authorize an increased punishment only after a showing of two separate offenses and convictions in such chronological order that the defendant has had two prior chances to profit from his experiences and reform.
In order to establish his position defendant prevailed upon the district court to notice records showing the chronological sequence of defendant's prior offenses and convictions. Since the records concerned were extraneous to the information, the State makes a point in its brief that a motion to dismiss for insufficiency of the information must be based upon some defect apparent on the face of the information. On oral argument, however, the State abandoned this collateral point and requested a determination of the root question.
The chronology of defendant's prior offenses and convictions, about which there is no dispute, are set out in the trial court's findings as follows:
'That the Defendant signed an insufficient funds check dated April 2, 1970, and was convicted on May 23, 1970.
'That the Defendant signed an insufficient funds check on May 13, 1970, and was convicted on June 30, 1970.
'That the commission-conviction on the check signed April 2, 1970, did not occur prior to the commission and conviction of the check signed May 13, 1970.
'The Court finds the conviction on the check signed April 2, 1970, followed the commission of the check signed May 13, 1970, but prior to the conviction of the check signed May 13, 1970.'
Even though the two checks referred to in the court's findings were given and convictions had in each...
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State v. Loudermilk, 48315
...209 Kan. 676, 498 P.2d 40.) We have also held that the same is true with regard to prosecutions under K.S.A. 21-3708. (State v. Walden, 208 Kan. 163, 490 P.2d 370.) It is important to note that in each case where a prior conviction of felony is a necessary element of the crime, the fact of ......
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State v. Bradley
...is not found therein or to read out what as a matter of ordinary English language is in it. [Citation omitted.]" State v. Walden, 208 Kan. 163, 166, 490 P.2d 370 (1971). Here, there was no reasonable doubt to be resolved in Bradley's favor. K.S.A. 2007 Supp. 8-1001(f) clearly and unambiguou......
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State v. Howard, 48151
...not permit or justify a disregard of manifest legislative intention appearing from plain and unambiguous language. State v. Walden, 208 Kan. 163, 166, 167, 490 P.2d 370. Upon a careful reading of the statute, could one be led to believe that defendant's actions were not forbidden? Clearly n......
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State v. Lohrbach, 47628
...on enactment of the Habitual Criminal Act, had it in mind to 'deter the criminally inclined from repeated felonies.' In State v. Walden, 208 Kan. 163, 490 P.2d 370, we used the following '. . . The cases mentioned declare that prior convictions relied on the enhance the punishment as author......