Wilbanks v. State

• Decision Date: 06 May 1978
• Docket Number: No. 48676,48676
• Citation: 224 Kan. 66,579 P.2d 132
• Parties: Robert H. WILBANKS, Appellant, v. STATE of Kansas, Appellee.
• Court: Kansas Supreme Court

Page 132

579 P.2d 132

224 Kan. 66

Robert H. WILBANKS, Appellant, v. STATE of Kansas, Appellee.

No. 48676.

Supreme Court of Kansas.

May 6, 1978.

Syllabus by the Court

                Robert H. Wilbanks                  186
                P.O.Box 623                      92-6/1241
                Boise, Idaho 83701           7-17 ,                1975
                                    ---------------
                PAY
                TO THE
                ORDER OF            Power Shop            $372.61
                                    -----------------------------------
                Three Hundred Seventy Two & 61/100 --- DOLLARS
                First Security Bank of Idaho
                  National Association
                P.O. Box 7069, Boise, Idaho 83707
                For_______________                   Robert H. Wilbanks
                                                     ------------------
                

well knowing at the time of his making, drawing, uttering and delivering said check that he, the said defendant, did not have any funds in or credit with said bank for the payment of said check, or for the payment of any part of said check.

"All of which is contrary to the form, force and effect of the statute in such case made and provided and against the peace and dignity of the State of Idaho.

"Said Complainant therefore prays that a Warrant issue for the arrest of said defendant, Robert H. Wilbanks, and that he may be dealt with according to law.

/s/ William Allan McAndy

William Allan McAndy

"Subscribed and sworn to before me this 3rd day of September, 1975.

/s/ L. Alan Smith

Magistrate

"(Filed: 9/3/75)"

Six days later, a warrant was issued by G. D. Carey, another magistrate in the same Idaho judicial district, for the arrest of Wilbanks. The complaint is drawn under section 18-3106 of the Idaho Code (1977 Supp.), which reads as follows:

"18-3106. Drawing check without funds Drawing check with insufficient funds Prima facie evidence of intent. (a) Any person who for himself or as the agent or representative of another or as an officer of a corporation, wilfully, with intent to defraud shall make or draw or utter or deliver, or cause to be made, drawn, uttered or delivered, any check, draft or order for the payment of money upon any bank or depositary, or person, or firm, or corporation, knowing at the time of such making, drawing, uttering or delivery that the maker or drawer has no funds in or credit with such bank or depositary, or person, or firm, or corporation, for the payment in full of such check, draft or order upon its presentation, although no express representation is made with reference thereto, shall upon conviction be punished by imprisonment in the state prison for a term not to exceed three (3) years or by a fine not to exceed $5,000 or by both such fine and imprisonment.

(d) As against the maker or drawer thereof, the making, drawing, uttering or delivering of such check, draft or order as aforesaid shall be prima facie evidence of intent to defraud and of knowledge of no funds or insufficient funds, as the case may be, in or credit with such bank, or depositary, or person, or firm, or corporation, for the payment in full of such check, draft or order upon its presentation. The word "credit" as used herein shall be construed to mean an arrangement or understanding with the bank or depositary, or person, or firm, or corporation upon whom such check, draft or order is drawn for the payment of such check, draft or order."

A comparison of I.C.1977 Supp. 18-3106(a) with the complaint shows that the complaint is written in almost the exact terms of the statute.

Three other sections of the Idaho Code are pertinent. These are I.C.1977 Supp. 19-504, I.C.1977 Supp. 19-505, and I.C. 19-506. These read as follows:

"19-504. Examination of person lodging complaint. When a complaint is laid before a magistrate of the commission of a public offense, triable within the county, he must examine, under oath, the person lodging such complaint, and the written complaint, so lodged, shall be subscribed under oath by the party or parties lodging the same."

"19-505. Contents of complaint. The complaint must set forth the facts stated by the complaining witness, tending to establish the commission of the public offense and the guilt of the defendant."

"19-506. When warrant may issue. If the magistrate is satisfied therefrom that the offense complained of has been committed, and that there is reasonable ground to believe that the defendant has committed it, he must issue a warrant of arrest."

Our own statute governing the issuance of warrants for arrest upon the filing of complaints is K.S.A. 22-2302. It reads:

"If the magistrate finds from the complaint, or from an affidavit or affidavits filed with the complaint or from other evidence, that there is probable cause to believe both that a crime has been committed and that the defendant has committed it, a warrant for the arrest of the defendant shall issue. . . ."

The Judicial Council note appended thereto states that "This section parallels, with slight modifications, Rule 4(a ) Federal Rules of Criminal Procedure. . . ." The federal rule reads:

"Rule 4(a) Issuance. If it appears from the complaint, or from an affidavit or affidavits filed with the complaint, that there is probable cause to believe that an offense has been committed and that the defendant has committed it, a warrant for the arrest of the defendant shall issue to any officer authorized by law to execute it. . . ."

Charles Alan Wright, in Federal Practice and Procedure, comments on this rule as follows:

"The most important aspect of Rule 4(a) is the provision that a warrant for arrest may issue under this rule only if it appears from the complaint, or from an affidavit or affidavits filed with the complaint, that an offense has been committed and that the defendant has committed it. This provision was recognized by the Advisory Committee that drafted it to be declaratory of existing law, and must be read in the light of the Fourth Amendment requirement of probable cause that it implements. . . ." 1 Wright, Federal Practice and Procedure, Criminal, § 51, p. 33.

"The command of Rule 4(a), taken from the Fourth Amendment, that a warrant for arrest may issue only on a showing of probable cause, involves one of the most important, and most difficult, concepts in criminal procedure. Its significance is by no means limited to this rule, nor to arrest warrants. The Fourth Amendment lays down the same standard for issuance of a search warrant. It is quite clear that the test of probable cause is the same, whether the warrant is for arrest or for a search, and cases involving search warrants must be considered in passing on probable cause for issuance of an arrest warrant. In addition, the probable cause that will justify a warrant is the minimum standard that must be satisfied if arrest without a warrant or a search without a warrant is to be held valid.

". . . (R)ecent Supreme Court decisions have answered many, if not all, of the questions as to the showing a complaint must make of probable cause. In Giordenello v. United States the complaint merely stated in the words of the statute that a particular person had committed an offense. The Court found the complaint insufficient, and held that the warrant issued on the basis of the complaint, and the resulting arrest and search, were invalid. The Court said that since the purpose of the complaint is to show the existence of the probable cause required to support issuance of a warrant, the commissioner or magistrate must judge for himself the persuasiveness of the facts relied on by the complaining officer and should not accept without question the complainant's mere conclusion that the person whose arrest is sought has committed a crime. The complaint before it, the Court held, provided no basis for the commissioner to determine whether probable cause existed. 'The complaint contains no affirmative allegations that the affiant spoke with personal knowledge of the matters contained therein; it does not indicate any sources for the complainant's belief; and it does not set forth any other sufficient basis upon which a finding of probable cause could be made.' The Court held that the commissioner may not rely on a presumption that the complaining officer speaks with personal knowledge. It rejected also the government's argument that the complaint was adequate since its allegations would be sufficient for an indictment, pointing out that an indictment issues only after the grand jury has determined that probable cause exists, while the complaint is the basis for the commissioner's determination as to probable cause.

"The Giordenello case held that the basis for the finding of probable cause must 'appear on the face of the complaint.' The 1966 amendment of Rule 4(a), which permits this showing to be made by an affidavit or affidavits filed with the complaint, makes no significant departure from that requirement. . . ." 1 Wright, Federal Practice and Procedure, Criminal, § 51, pp. 36-38.

The Fourth Amendment to the United States Constitution provides that:

"The right of the people to be secure in their persons . . . shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

This section has been held applicable to the issuance of warrants for arrest as well as warrants authorizing a search. Similar language is contained in section 15 of the Kansas Bill of Rights. As we noted in State v. Wood, 190 Kan. 778, 788, 378 P.2d 536 (1963):

"The Fourteenth Amendment of the Federal Constitution, as extended by the United States Supreme Court in Mapp v. Ohio, supra, to protect citizens of the United States from unreasonable searches and seizures by state officers, does not go beyond the prohibition in our own constitution as above quoted. In other words, the command of the Fourth Amendment in the Federal Constitution to federal officers is identical to the command of Section 15 of the Kansas Bill of Rights to law...