State v. Young

• Decision Date: 17 May 1969
• Docket Number: No. 45281,45281
• Citation: 454 P.2d 724,203 Kan. 296
• Parties: STATE of Kansas, Appellee, v. Leonard W. YOUNG, Appellant.
• Court: Kansas Supreme Court

Page 724

454 P.2d 724

203 Kan. 296

STATE of Kansas, Appellee, v. Leonard W. YOUNG, Appellant.

No. 45281.

Supreme Court of Kansas.

May 17, 1969.

Syllabus by the Court

1. The granting or denying of a motion to provide supporting services to counsel for an indigent defendant is a matter within the discretion of the trial court, whose ruling will not be disturbed in the absence of a showing that such discretion was abused to the extent that the defendant's substantial rights were prejudiced.

2. In a forgery proesecution where the charge includes the false making and forging of a signature of another person to a written instrument, proof that such signature is not in the handwriting of the person whose signature it purports to be is prima facie evidence that the signing of such name was unauthorized and is a forgery.

3. Where an issue is raised of the genuineness of a signature on a written instrument, a jury may compare handwriting exemplars of witnesses, including that of the defendant, and exercise its judgment concerning the genuineness of the signature and determine whether or not defendant forged the instrument.

4. A trial court may take judicial notice that under the statutes of this state every state bank using the word 'state' as part of its name must be an incorporated bank.

5. Possession of a forged instrument by one who utters or seeks to utter it, or otherwise to realize on it or profit by it, without a reasonable explanation of how he acquired it, warrants an inference that the possessor himself committed the forgery or was a guilty accessory to its commission.

6. Knowledge of the defendant that he knew an instrument was a forgery at the time he uttered or passed it contrary to the provisions of K.S.A. 21-609 may be proved by circumstantial evidence.

7. Due process requires that a defendant be given reasonable notice of the state's intention to invoke the provisions of the habitual criminal act (K.S.A. 21-107a) so that he may be heard upon the issue of his prior convictions.

8. In a criminal prosecution wherein the defendant was convicted of second degree forgery (K.S.A. 21-608) and uttering a forged instrument (K.S.A. 21-609), the record is examined, and it is held, (a) the trial court did not err in (1) denying defendant's request for funds to employ a handwriting expert; (2) overruling defendant's motion for a pretrial conference and disclosure by the state of all information favorable to him; (3) admitting certain checks into evidence; (4) overruling defendant's motion for new trial; (b) the verdicts were supported by substantial, competent evidence; and (c) defendant was given reasonable notice of the state's intention to invoke the provisions of the habitual criminal act.

Ronald R. McEnulty, Wichita, argued the cause, and on brief for appellant.

James W. Wilson, Deputy County Atty., argued the cause, and Kent Frizzell, Atty. Gen., Keith Sanborn, County Atty., and A. J. Focht, Deputy County Atty., with him on brief for appellee.

O'CONNOR, Justice.

This is an appeal by the defendant, Leonard W. Young, from a conviction by a jury of second degree forgery (K.S.A. 21-608) and uttering a forged instrument (K.S.A. 21-609) and the resultant concurrent sentences, imposed under the habitual criminal act, of not less than two nor more than twenty years in the state penitentiary.

The primary questions presented relate to: (1) alleged trial errors which defendant contends denied him a fair trial; (2) the sufficiency of evidence to sustain the convictions; and (3) the adequacy of notice of the state's intention to invoke the provisions of the habitual criminal act.

The charges stemmed from a check dated September 12, 1966, purportedly drawn by 'Bradly Jordan' of 1707 N. Glendale, Wichita, on The Farmers & Merchants State Bank in Derby, payable to Leonard Young, in the sum of $20, which defendant admitted endorsing and cashing at Mr. D's, Inc. Seneca, a grocery store in Wichita. The check, bearing a label marked 'unable to locate,' was returned by the bank to the store, and defendant was subsequently charged with the stated offenses.

Defendant was brought before the district court on January 24, 1967, found to be indigent, and counsel was appointed. On March 2 defendant filed a motion requesting the court for an order to furnish him with the necessary funds to employ a handwriting expert in order to prove he did not forge the check. The motion was overruled March 10. On April 19 defendant filed a motion requesting a pretrial conference at which the state be required to disclose all information known to it that was favorable to the defendant. Hearing on the motion was set for May 12, but, at the request of defendant's counsel, was continued for argument until May 15, the date of trial. The trial court denied the motion.

Immediately before the commencement of trial the state gave defendant and his counsel notice that in the event of conviction it intended to invoke the provisions of the habitual criminal act, based on a prior felony conviction in 1964. Defendant objected to the time and manner in which the notice was given, and the court overruled the objection.

Thereafter, the state introduced evidence which showed that the purported drawer of the check in favor of this 29-year-old defendant was a 12-year-old lad named 'Bradley Jordan' who had a savings account, but did not have, and never had, a checking account in the above-named bank. Bradley denied he was the drawer of the check, and upon examining it, testified the signature thereon was not his-the first name being misspelled. He further testified he did not know the defendant; that he was the only Bradley Jordan at the North Glendale address, where he lived with his parents; and that he had not given anyone permission or authority to sign his name on a check. Bradley's testimony was corroborated by his father, Athen Jordan, who also testified that the signature on the check in question was not that of Bradley. Bradley's testimony concerning his savings account was substantiated by the cashier at the bank, Donald Murphy, who testified that a thorough check of the bank's records revealed a savings account in the name of 'Bradley Jordan,' a 12-year-old boy living at 1707 North Glendale, but no record of a checking account in that name.

At the close of the state's evidence the defendant again asked for the appointment, at the state's expense, of a handwriting analyst, and the court denied the request.

Although defendant admitted endorsing and passing the check in question, he denied writing the check, or that any of the handwriting on it was his, other than the endorsement. Defendant testified that he obtained the check, and other checks, from his 14-year-old brother, Terry Gene Young, and Donald Jordan, Bradley's older brother, who had been to the defendant's home on September 12. According to defendant, the boys told him they got the checks from Donald's brother, and defendant thought Donald's brother was writing the checks for money for the boys. Defendant said he did not know who wrote the check in question-it was written when it was given to him-and he did not have any knowledge that the boys did not have authority from Bradley to give the check to him. Defendant admitted that it did strike him a little odd that two 14-year-old boys had given him several $20 checks to cash, yet he never noticed the variation in the spelling of Bradley's name or the different addresses on the checks; he just took them and cashed them at different places, giving a different home address than where he actually lived, and keeping only a small part of the money for himself as reimbursement for having gone to the trouble of cashing the checks for the two boys.

The state presented evidence, on rebuttal, by Donald Jordan, who testified he knew nothing about the check and had not received any money from it or any other checks.

Defendant first specifies as error the trial court's denial of his request for funds to employ a handwriting expert. His principal argument is that the trial court's action resulted in discrimination against him because of his indigency and was violative of his constitutional rights under the due process clause, citing Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891. We are unable to agree.

The granting or denying of a motion to provide supporting services to counsel for an indigent defendant is a matter within the discretion of the trial court, whose ruling will not be disturbed in the absence of a showing that such discretion was abused to the extent that the defendant's substantial rights were prejudiced. (State v. Taylory, 202 Kan. 202, 447 P.2d 806.) Since we have no statute authorizing and providing for such services, a request therefor must depend on the facts and circumstances of each case.

Here, when defendant made his separate requests, both before trial and during the presentation of the state's evidence, there was no showing that the services of a handwriting expert were reasonably available and necessary to prepare an adequate defense. In fact, absent is any indication that defendant or his counsel had contacted or made any effort to secure the services of an analyst if funds were made available.

Unlike in Taylor, the state did not rely on expert testimony in proving its case. There was the testimony of Bradley Jordan, corroborated by his father, denying the genuineness of the drawer's signature appearing on the check. In a forgery prosecution where the charge includes the false making and forging of a signature of another person to a written instrument, proof that such signature is not in the handwriting of the person whose signature it purports to be is prima facie evidence that the signing of such name was unauthorized and is a forgery. (K.S.A. 62-1418.) The testimony of experts is not requried where there is other evidence of forgery. (See, K.S.A. 62-1427; State v. Rowland, 172 Kan. 224, ...