State v. Finney

32 P.2d 517, 139 Kan. 578, 1934 Kan. LEXIS 113

Opinions

The opinion of the court was delivered by

Smith, J.:

Defendant was prosecuted and pleaded guilty to forgery. He later asked the court to permit him to withdraw his plea of-guilty. This was denied, and defendant appeals.

At the start of the trial the defendant was informed against in sixty counts. Thirty of these were counts for forgery of municipal bpnds and thirty of them were for uttering forged municipal bonds. The odd-numbered counts are the forgery counts. The even-numbered ones are the uttering counts. The charge had to do with the defendant forging an issue of thirty bonds of the city of Hutchinson in the amount of $1,000 each. The only difference in the bonds was that they were issued in series of three; that is, -three bonds fell due on the same date. Because of this, counts 1, 3 and 5 were exactly alike, since each count charged the forgery of a bond for the same amount as the others and due on the same date. The same is true of counts 7, 9 and 11 and so on throughout the entire information.

This situation caused counsel for defendant to level various motions to quash and motions to compel the state to elect as to which counts it intended to rely upon for conviction. On the record, without an examination of the facts and circumstances, it does appear that there are only ten good forgery counts charged. At the outset it would be well to state that since the evidence showed that the uttering of the bonds had been done all as one transaction, at the same time and to the same person, all the uttering counts were dismissed except one. That left the defendant charged on the thirty-one counts instead of sixty.

The motion that was most vigorously urged during the oral argument and in the brief is that made at the close of the state’s case to require the state to elect upon which one of each of the series of three counts it relied on for conviction. At this stage of the case defendant was aware that the state had based each count on the forgery of a separate and distinct bond. In fact, this had been apparent ever since the preliminary examination. Defendant had seen the forged instruments and knew that they were issued so that there were ten sets of three each and that all the bonds in each group of three were exactly alike. It was necessary that each bond be described in the count charging defendant with forging it. The bonds might have been distinguished by giving each one of them a number and designating it by that number. It is difficult, however, to understand how this would have been of any benefit to defendant. It is also difficult to see how defendant was prejudiced in any way by the failure of the state to so designate the bonds in the counts. If it were a case where the state had used evidence with reference to the same bond to prove all three counts, then the defendant would have been entitled to complain and the trial court would have compelled an election at once. But such was not the case here. This argument of defendant may be disposed of on the authority of R. S. 62-1718, which provides as follows:

“On an appeal, the court must give judgment without regard to technical errors or defects, or to exceptions which do not affect the substantial rights of the parties.”

(See, also, State v. Clark, 125 Kan. 791, 266 Pac. 37.) We hold that it was not error for the trial court to deny the motion of the defendant to compel the state to elect as to which counts it relied upon.

Defendant also raised by appropriate motion the question of whether there were one or thirty counts of forgery proven. Here it should be noted that there were thirty forged bonds introduced; each bond was an original, and each required the affixing of signatures and a seal to render it valid. There were the forgeries of signatures of the municipal officers of the city of Hutchinson on each bond. The placing of the seal of the city on each bond was a separate and distinct act. The rule is laid down in 26 C. J. 956. Section 112 is as follows:

“Although, separate instruments were forged by a defendant on the same date and as a part of the same general transaction, the forgery of each constitutes a separate offense, punishable under a separate indictment or count; and, although several drafts may be uttered as one indivisible act, the forgery of each is a separate offense.”

(See, also, United States v. Carpenter, 151 Fed. 214; also, Barton v. The State, 23 Wis. 587.) The rule is stated in 12 R. C. L. 162. Section 24 is as follows:

“As to several acts of forgery, each generally constitutes a separate crime, even though they are committed in the course of a continuous transaction, on the same date, or even on the same piece of paper, unless each act constitutes merely a component part of an indivisible instrument.”

We have concluded that the argument of defendant that there was only one forgery proven is not sound. Since that conclusion has been reached, the result is that when the state rested its case there were thirty counts of forgery and one count of uttering a forged instrument upon which the state was entitled to go to the jury.

After the motion spoken of above had been denied and at the conclusion of the state’s case counsel for the state and counsel for the defendant held a series of conferences. The object of these conferences was to reach an agreement whereby defendant might plead guilty to a lesser number of counts than were charged in the information.

These conferences were held in the judge’s chambers. The judge seems to- have been present at some of them and not present at others. There is a sharp difference in the statements of counsel as to just what transpired. Counsel for defense insist that the final agreement was that defendant should plead guilty to thirty-one counts and he would receive a sentence providing that sixteen of the thirty-one counts should run concurrently with the fifteen counts and that sentence on the fifteen counts should run consecutively. The county attorney and his assistant state that their understanding was that the county attorney would recommend that the sentence should be that fifteen of the counts would run consecutively and the sentences on the remaining sixteen counts should run concurrently with the sentences on the first fifteen counts. They state that this arrangement had the approval of the trial judge. The special prosecutor did not participate in all the conferences, but states that the only observation he made was that if any leniency was extended the minimum should be twenty years. The trial judge states that in one of the conferences he did tell the county attorney that if he would recommend a sentence of fifteen years minimum he would consider it. He also states that he at no time entered into any agreement with anybody to sentence the defendant to any particular term. These conferences took place on December 23, 1933. Defendant pleaded guilty on that date. The passing of sentence was deferred until December 30, 1933. On that date the court called attention to the case of Beck v. Fetters, 137 Kan. 750, 22 P. 2d 477. The trial judge at that time expressed doubt as to whether according to that authority he had power to make the sem tences run concurrently. Some argument ensued, and the passing of sentence was continued to January 2, 1934. On that date further argument was had. The trial judge expressed some doubt as to whether he had power to make the sentences run concurrently. When the trial judge indicated that this was the view he had of the matter defendant moved that he be permitted to withdraw his plea of guilty and enter a plea of not guilty. The county attorney consented that this should be done. In the ruling denying this motion thé court made the statements that have heretofore been set out in this opinion. They have the force of findings of fact. The motion for permission to withdraw the plea was denied. That is the principal error that is urged in this appeal.

The ground upon which defendant urges that the court should have allowed the withdrawal of the plea of guilty is that defendant did not enter a voluntary plea of guilty to thirty-one counts except upon the understanding that sixteen of the counts should run com currently with the other fifteen counts. The court in ruling on the motion found that no such agreement had been made. We have carefully examined the record and the statements of counsel and can see no reason for disturbing that finding.

The question of whether a plea of guilty should be permitted to be withdrawn has generally been held to be a matter within the discretion of the trial court. The rule is well Stated in 20 A. L. R. 1450. There it is said:

“As the withdrawal of a plea of guilty is within the discretion of the court, and as this discretion is exercised on the facts of each particular case, it is difficult to lay down a general rule covering all the circumstances under which a plea of guilty may be withdrawn. However, it has been held that the withdrawal of a plea of guilty should not be denied in any case where it is in the least evident that the ends of justice will be subserved by permitting not guilty to be pleaded in its place, and that the least surprise or influence causing a defendant to plead guilty when he has any defense at all should be sufficient cause to permit a change of plea from guilty to not guilty.”

See State v. Williams, 45 La. Ann. 1356, 14 So. 32. The question has been considered by this court many times. In the City of Salina v. Cooper, 45 Kan. 12, 25 Pac. 233, this court held that there was a wide discretion in the trial court on this matter of whether a plea of guilty should be permitted to be withdrawn. In that case it was held that the court abused its discretion in denying the motion of the defendant for permission to withdraw his plea of guilty. The ground upon which it was so held was that the defendant was arrested and taken to the police court before a large crowd; he was excited; the whole affair was done hurriedly; he did not know what he was doing; he was not aware that he had a hearing; he had no counsel and he was not guilty.. All these things appeared by uncontradicted evidence. None, of these facts are present here. There had been a trial lasting two weeks, the state’s case had been made, numerous motions attacking- the information had been presented, argued vigorously and ruled upon. The plea came as a result of several conferences at which, .defendant had been represented by one of the ablest and most astute of counsel.

As has been stated heretofore, the finding of the court was that no promise of any sort was made. What was stated by the court was that if a recommendation was made by the county attorney it would be considered. That position of the trial court is strictly in keeping with the law. The-county attorney can do nothing more than recommend. No promise that he should make can go any farther or have any more weight than a recommendation which the court should consider along with all the other circumstances. The discretion of the county attorney is as to what and how many charges will be filed and finally presented. In the final analysis the duty of imposing the sentence is that of the trial court. It cannot be promised away even by the court itself. In the exercise of the discretion which the court has in considering the question of whether the motion of defendant to withdraw his plea of guilty should be sustained, we hold that the court no doubt considered all these -circumstances.

In State v. Yates, 52 Kan. 566, 35 Pac. 209, the court held:

“The rule is, that where a defendant has pleaded guilty in a criminal cause, and sentence has been passed upon him, it is within the sound discretion of the trial court to permit the plea to be withdrawn, and to allow a plea of not guilty entered. If the court abuses its discretion, error may be assigned therefor.”

There defendant was represented by counsel.

In State v. Garrett, 78 Kan. 882, 98 Pac. 219, this court said:

“The voluntary plea of guilty solemnly entered by the defendant while he was duly attended by his counsel was the highest evidence of guilt, and the court did well to weigh with caution the defendant’s affidavit, filed after the jury had been discharged for the term, stating that he had looked further into the evidence for and against him and had found that it ought to be submitted to a jury, and that he was innocent. Very clearly the district court did not abuse its discretion in refusing to allow the plea of guilty to be withdrawn.” (p. 883.)

These two cases were cited with approval in State v. Beasley, 133 Kan. 438, 300 Pac. 1103.

The question is so well settled by the decisions of this court that we do not deem it necessary to cite the many authorities from other jurisdictions to the same effect.

It is worthy of note that the lengthy affidavit filed in this case by leading counsel does not anywhere make the claim that defendant is not guilty of the crime of forgery. The burden of the affidavit, which was filed with the court to be considered with the motion to withdraw the plea, is that under authorities relied on by counsel only one crime of forgery had been proven by the state. This, as we have seen, was a mistaken view of the law on the part of counsel. The court, in considering the motion, had a right to consider the evidence that had been introduced by the state; it also had a right to consider that counsel avoided a forthright claim that defendant was not guilty. We conclude that the court did not abuse its discretion-in denying the motion to withdraw the plea of guilty of forgery. It taxes the credulity of this court too far to claim that a man would plead guilty to even fifteen counts of forgery if he were not guilty.

There is another question in this case which must be considered. That has to do with the construction placed by the trial court on R. S. 62-1512 and the case of Beck v. Fetters, 137 Kan. 750, 22 P. 2d 438.

R. S. 62-1512 reads as follows:

“When any person shall be convicted of two or more offenses before sentence shall have been pronounced upon him for either offense, the imprisonment to which he shall be sentenced upon the second or other subsequent conviction shall commence at the termination of the term of imprisonment to which he shall be adjudged upon prior convictions.”

Beck v. Fetters, supra, holds as follows:

“Under a statute where a person is convicted of several offenses, the court in sentencing the defendant on the second or subsequent conviction is expressly directed to impose the penalty of imprisonment to commence at the termination of the former imprisonment. In such a case the court must render judgment in conformity with the statutory policy and is without authority to adjudge that it shall run concurrently.” (p. 752.)

It will be remembered that the plea of guilty was entered on December 23, 1933, and defendant presented himself for sentence on December 30. On that date the trial court called attention to the Beck case and expressed some doubt as to his authority to sentence defendant and to provide that part of the terms should run concurrently. On account of this the passing of the sentence was continued until January 2, 1934. At that time a lengthy argument was had as to what agreement had been made and as to the effect of the holding in the Beck case. At that hearing the trial court stated:

“I have my mind pretty well made up about it, Mr. Schenck. I have spent the week-end trying to change my mind, but I haven’t been able to.”

Later, in the same statement, the court said:

“The fact is that when the court ran across the decision referred to, in 137 Kansas, and when he came to the conclusion that if the county attorney did make a recommendation of part of these counts running concurrently, he ought to call the attention of the county attorney to that decision, with that idea in mind I went to the county attorney’s office and found Mr. Goodell absent, but found Mr. Harvey present.”

Again—

“The court has at no time entered into any agreement with anybody to sentence this defendant to any particular term. The court was perfectly willing to consider recommendations of the county attorney in this matter, but the court is still of the opinion that under this 137 Kansas of which I think all counsel should have been advised, although we disagree on what it means, he cannot consider the recommendations of counsel for the state at this time as to the sentence.”

It appears from these statements that the trial court interpreted the above statute and opinion to mean that the court did not have authority to sentence defendant in any way other than to provide that the terms on each count should run consecutively.

This requires a critical examination of R. S. 62-1512. It will be noted that it provides that it shall be in effect only where a person shall have been convicted of two or more offenses before sentence shall have been pronounced upon him for either offense. That language plainly means that the conviction shall be at two or more different trials. There is no way that a man could be convicted of more than one offense before sentence should be pronounced on the other where they were all charged in the same information.

Again the statute speaks of a second or subsequent conviction. A conviction of several counts is not a second or subsequent conviction. It is a simultaneous conviction as to those counts. In fact, it will be noted that the statute does not operate on the sentence but on the serving of the term of imprisonment. It is a guide to prison authorities, not a limitation on the authority of courts.

In the Beck case the defendant was sentenced to serve a period of six months in the county jail and that he pay a fine of $100 oh each o.f the two counts, the j ail sentence to run concurrently. Beck appealed from that judgment to this court. That appeal was dismissed for want of prosecution on November 28, 1931. On December 29, 1930, Beck was again arrested upon a second and separate charge. On January 15, 1931, he was found guilty and sentenced to serve ninety days and pay a fine of $100. It will be seen that the second conviction occurred while the appeal on the first conviction was pending. The only question presented in that case was whether or not the service of the term of imprisonment pronounced by a sentence in one case on December 30, 1930, would run concurrently with the service of the term of imprisonment pronounced by a sentence upon which he was found guilty on January 15, 1931, in another and different case. The court analyzed the statute as heretofore pointed out. The defendant was convicted of two offenses, but before sentence was pronounced upon him for one offense he was convicted of another offense in the only way that such a thing could possibly transpire, that is, by a separate charge and after a separate trial. The court held that the imprisonment for the second and subsequent offense — conditions which could only exist where there had been two separate charges and trials — should commence to run at the termination of the term of imprisonment which was adjudged on the prior conviction. The Beck case did not deal with a situation where the charges were all in one information and after one trial as in this case.

The authority of the trial court to provide that sentences on several counts shall run concurrently was recognized by this court in the case of State v. Woodbury, 133 Kan. 1, 298 Pac. 794, in an opinion denying a rehearing, the original opinion of affirmance being reported at 132 Kan. 22, 294 Pac. 928. The defendant had been convicted on several counts of violation of the banking laws. He appealed. The judgment was affirmed, but the case was remanded to the district court for a correction of the sentence. In the opinion denying a rehearing this court said:

“The question is asked whether the resentenee should apply to those counts only where the sentence given was wrong because it was made under the new law, while the crime charged was under the old law where the penalty was different from what it now is under the new law, or should the defendant be resentenced as to all the counts at one time? We answer this question by stating that there must be but one sentence. The resentence should cover all the counts, those where there was no mistake as well as those in which a mistake was found. The statute (R. S. 62-1512) and the well-established rule as to the sentence on any or all of the counts running concurrently or consecutively must apply to a single sentence delivered at one time only and covering all the counts on which conviction was had. Whatever concurrent or consecutive features or elements there may be prescribed by the court must all be a part of the one sentence imposed and pronounced by the court on one date only and at one time.” (State v. Woodbury, 133 Kan, 1, 2.)

On a question of this so.rt the operative interpretation that has been given the statute is worthy of being given some weight. It has been the uniform practice of district courts in this state to exercise discretion, and when the circumstances were such that in the opinion of the court justice would best be served by providing that the term of imprisonment on some counts of which a defendant should be convicted should run concurrently with certain other counts to so provide in the sentence.

After a careful examination of the statute and the authorities we have reached the conclusion that the trial court was mistaken in the interpretation given R. S. 62-1512, and the case of Beck v. Fetters, when the court concluded that those authorities prevented a ruling that the term of imprisonment on certain of the counts should run concurrently with the term on certain of the other counts.

Since this conclusion has been reached, the question remains as to what disposition should be made of the case. We hold that the sentence that is imposed by a trial court should be such as the court in the exercise of discretion, taking into consideration all the circumstances, deems the ends of justice require. Under the indeterminate sentence act not much discretion is open to the trial court. We have seen, however, there is wide latitude afforded where the conviction is of several counts in the same trial. The majority of the court have concluded that the remarks of the judge indicate that the trial court did not fully realize the wide discretion that was vested in it and that the cause should be remanded to the trial court with directions for the court thereof to exercise its discretion and to proceed to impose upon defendant whatever sentence the circumstances and the ends of justice require. This must not be construed to be a direction on the part of this court that the sentence should be any different from that already imposed. Upon that question we carefully refrain from passing an opinion. That is the province of the trial court and the trial court alone. We approve the finding of the court that no promise was made by the court. We hold that no promise made by the prosecuting officers could be any more than a promise to make a recommendation, and we hold that defendant was fully informed of his rights and that it was not an abuse of discretion for the trial court to deny the motion of the defendant to withdraw his plea of guilty.

The judgment of the trial court is affirmed, but the cause is remanded to the district court of Shawnee county with instructions to resentence the defendant providing that the term of imprisonment on each count shall run concurrently or consecutively as in the judgment of that tribunal the circumstances of the case and the ends of justice require.