Windle, Application of, 39970

• Decision Date: 29 February 1956
• Docket Number: No. 39970,39970
• Citation: 294 P.2d 213,179 Kan. 239
• Parties: In the Matter of the Application of Clarence E. WINDLE for a Writ of Habeas Corpus. Clarence E. WINDLE, Appellant, v. John P. WIRE, Appellee.
• Court: Kansas Supreme Court

Page 213

294 P.2d 213

179 Kan. 239

In the Matter of the Application of Clarence E. WINDLE for a Writ of Habeas Corpus Clarence E. WINDLE, Appellant, v. John P. WIRE, Appellee.

No. 39970.

Supreme Court of Kansas.

Feb. 29, 1956.

Syllabus by the Court

1. In an appeal from a judgment of the district court denying petitioner's application for his release from a commitment issued by an examining magistrate, binding him over for trial for a breach of the worthless-check act, G.S.1949, 21-554, the record examined, and held to show that sufficient evidence was adduced before the magistrate that a crime had been committed and that the petitioner was probably guilty.

2. The provisions of G.S.1949, 21-554, do not sanction imprisonment for debt and do not contravene section 16 of the bill of rights of our state constitution.

3. The prohibitions of G.S.1949, 21-554, apply to postdated checks, and checks to be presented for payment at a future date.

J. J. Mangan, Dodge City, argued the cause, and Z. A. Nevins, Jr., Dodge City, was with him on the briefs for appellant.

Rae E. Batt, County Atty., Kinsley, argued the cause, and Harold R. Fatzer, Atty. Gen., was with him on the briefs for appellee.

WERTZ, Justice.

This is an appeal from a judgment denying a writ of habeas corpus sought by appellant, hereinafter referred to as petitioner, who had been bound over for trial for his alleged crime after a preliminary examination before an Edwards County magistrate.

It is disclosed by the record that the county attorney filed a complaint before the judge of the county court of Edwards County, charging that on November 7, 1953, Clarence E. Windle did unlawfully, willfully and feloniously draw, make, utter, issue and deliver to Farlow Implement Co. his certain check in writing, drawn upon the First National Bank of Spearville, Kansas, in the sum of $2,000, payable to the order of Farlow Implement Co., knowing at the time of the making, drawing, uttering and delivering of said check that he had no funds on deposit in, or credits with said bank, with which to pay said check upon presentation. Pursuant thereto, the petitioner was arrested and brought before the judge of the county court of Edwards county for a preliminary examination and bound over to the district court for trial. Petitioner commenced an action of habeas corpus in the district court to procure his discharge from custody, contending the evidence was not sufficient to justify the examining magistrate's holding him for trial. The trial court sustained a demurrer to petitioner's evidence and remanded him to the custody of the sheriff, and he appeals.

The evidence as disclosed by the record is not in dispute. Windle, on November 7, 1953, gave to E. J. Farlow, owner of the Farlow Implement Co., the following check:

'Nov. 7, 1953

'Pay to the order of Farlow Implement Co. $2000.00

'Two Thousand & no/100 Dollars

'First National Bank, Spearville, Kansas

'Hold Jan 1

'ss/ Clarence E. Windle'

It was agreed between the parties that Farlow was to hold the check until January 1, 1954, as Windle would have between $15,000 and $16,000 coming in from the sale of his sheep, at which time he was to present it to the bank for payment. The words 'hold Jan 1' were placed on the check at the time it was given to Farlow. After January 1, Farlow took the check to the bank at Spearville, and payment was refused by the bank for the reason Windle did not have sufficient funds in the bank to pay the check.

To justify binding over for trial a person accused of crime, it is only necessary at the preliminary examination that sufficient evidence be adduced to satisfy the examining magistrate that a crime has been committed and that the accused is probably guilty. G.S.1949, 62-620 and 62-621.

G.S.1949, 21-554, provides, in pertinent part, that it shall be unlawful for any person to draw, make, utter, issue or deliver to another any check on any bank or depository for the payment of money, knowing at the time of the making and delivery of the check that he has no funds on deposit in or credits with such bank with which to pay the check upon presentation. Section 21-555 provides that any person willfully violating any of the provisions of the aforementioned section, shall be deemed guilty of a misdemeanor if the check is drawn for less than twenty dollars, and be deemed guilty of a felony if the check is drawn for twenty dollars or more. Section 21-556 provides for abatement of the action under certain conditions.

Petitioner contends that the mentioned statutes are in conflict with section 16 of the bill of rights, which forbids imprisonment for debt, except in case of fraud. We do not deem it necessary to labor this point inasmuch as the same question was presented to this court in State v. Avery, 111 Kan. 588, 207 P. 838, 23 A.L.R. 453, where we held, after analyzing the statutes and section 16 of the bill of rights, that the statutes do not impose imprisonment for debt, saying:

'* * * The worthless...