State v. Whorton , 225 Kan. 251 ( 1979 )

The opinion of the court was delivered by

Schroeder, C.J.:

This is an appeal in a criminal action by the State from an order dismissing the complaint-information charging B. G. Whorton (defendant-appellee) with sixteen counts of felony theft in violation of K.S.A. 21-3701.

The State argues the trial court erred as a matter of law in dismissing the complaint-information because it relied on extrinsic evidence outside the four corners of the information to find the information insufficient.

The defendant was charged in a complaint-information filed July 18, 1977, with sixteen counts of felony theft. Count I, as an example, provided:

“In the County of Sedgwick and State of Kansas, and on or about the 18th day of May, 1976, one B. G. WHORTON a/k/a BILL WHORTON a/k/a BILL G. WHORTON, did unlawfully, feloniously and wilfully, obtain or exert unauthorized control over property; to-wit: a negotiable instrument in the form of a check in the amount of Five Hundred and No/100 ($500.00) Dollars drawn by Don Poland, of Isabel, Kansas, on the Isabel State Bank, Isabel, Kansas, dated May 12, 1976, payable to the order of Bi-Agra Association, which said check the same B. G. Whorton a/k/a BILL WHORTON a/k/a BILL G. WHORTON, did deposit at the First National Bank (East Branch), Wichita, Sedgwick County, Kansas, to the credit of a bank account entitled Bi-Agra of America Association which last said account was surreptitiously, unlawfully, wilfully, and deceptively opened by the same B. G. WHORTON a/k/a BILL WHORTON a/k/a BILL G. WHORTON, without the knowledge, authority, and consent of the Bi-Agra Association to which the maker of the same check, Don Poland aforesaid, had intended the check to be delivered, received and deposited, the Bi-Agra Association, payee of the check being a wholly different and separate corporate entity from the Bi-Agra of America Association, and, further, the same B. G. WHORTON, a/k/a BILL WHORTON a/k/a BILL G. WHORTON, did convert the proceeds of the same check to his own use and with the intention to permanently deprive the owners, to-wit: Bi-Agra Association and Don Poland of the possession, use or benefit of said property, of a value of more than $50 good and lawful money of the United States of America; contrary to the form of the statute K.S.A. 21-3701(a), (Theft, Class D Felony, Count One)/’

The general allegations in the other counts were the same; however, the date, amount, particular check involved, and name of the drawer on each check varied in each count.

The defendant’s trial began on January 16, 1978. Clifford Couch was called as the first witness in the case. He testified he had written a check to Bi-Agra Association and delivered it to Mr. G. L. Pottroff. When asked what benefits he derived from membership in the Bi-Agra Association, defense counsel immediately objected because the defendant was not alleged to have made representations to Mr. Couch. The trial court excused the jury and after some discussion, sustained the objection. Thereafter, the court recessed the trial in order for the State to determine how it wished to proceed.

The next morning, as a result of its own agreement to stipulate, the State moved to strike certain phrases from the complaint as surplusage. The amended information in Count I, for example, provides as follows:

“In the County of Sedgwick and State of Kansas, and on or about the 18th day of May, 1976, one B. G. WHORTON a/k/a BILL WHORTON a/k/a BILL G. WHORTON, did unlawfully, feloniously and wilfully, obtain or exert unauthorized control over property; to-wit: a negotiable instrument in the form of a check in the amount of Five Hundred and No/100 ($500.00) Dollars drawn by Don Poland, of Isabel, Kansas, on the Isabel State Bank, Isabel, Kansas, dated May 12, 1976, payable to the order of Bi-Agra Association, with the intention to permanently deprive the owner, to-wit: Bi-Agra Association of the possession, use or benefit of said property, of a value of more than $50 good and lawful money of the United States of America; contrary to the form of the statute K.S.A. 21-370I(a), (Theft, Class D Felony, Count One).”

Defense counsel stated the amended information changed the theory of the case. The State, on the other hand, contended the original complaint-information should be interpreted as pleading in the alternative; thus, the amendment removed surplusage and did not materially alter the charge. The trial court then sustained the State’s motion to amend.

With the jury still excused, the parties also stipulated that a total of fourteen corporations using as a part of their name “Bi-Agra” and “Association” were in existence and chartered in the State of Kansas. Defense counsel argued since the individual check drawees, who were endorsed as witnesses, were stricken from the complaint, the State could not prove ownership of the checks in the proper Bi-Agra Association because officers of the fourteen various associations were not endorsed as material witnesses. He then moved for judgment of acquittal. The State argued the determination of which Bi-Agra Association owned the checks was a question for the jury, and counsel assured the court the individual directors responsible for forming the defrauded Bi-Agra Association were endorsed as witnesses and would establish ownership of the checks in the Association.

Thereafter, the court dismissed the information and stated:

“The Court feels that the charges initially against — which had been standing in court, were duplicitious and they allege two separate crimes with ownership in one of Bi-Agra Association and Don Poland. It’s the Court’s feeling that Bi-Agra Association and Don Poland in count number one, indicates joint ownership and that the defendant, when this trial started, would be proceeding in the fact that he was defending against the theft from one ownership; and to strike that, changes the nature of the charge and raises possible other defenses that he might have. It is also the Court’s understanding, that based on the stipulation that was attempted in this court, that there are at least a dozen entities in operation under the name of Bi-Agra Association, which the defendant missed some connection with and that the general charge of the ownership of this check, in being Bi-Agra Association — based on the statements made by counsel, I think raises serious question as to whether or not the charge is specific enough that he can adequately be defended. So, on that basis I am going to sustain Mr. Shultz’ motion to dismiss and dismiss the jury.”

The State has duly perfected this appeal.

Nowhere in the record is there an indication that a question was reserved by the prosecution.

Before this court is permitted to consider the issue raised by the State we must determine whether an appeal properly lies in this case. K.S.A. 1977 Supp. 22-3602(b) provides in pertinent part:

“Appeals to the supreme court may be taken by the prosecution from cases before a district judge or associate district judge as a matter of right in the following cases, and no others:

“(1) From an order dismissing a complaint, information or indictment;

“(2) From an order arresting judgment;

“(3) Upon a question reserved by the prosecution.”

No appeal lies from a judgment of acquittal. See State v. Crozier, 225 Kan. 120, 587 P.2d 331 (1978); State v. Gustin, 212 Kan. 475, 479, 510 P.2d 1290 (1973). Mr. Shultz, defendant’s counsel, moved for a judgment of acquittal but the court referred to the motion as one for dismissal. Thus, the crucial question is whether a judgment of acquittal or a dismissal occurred here.

A judgment of acquittal was last defined as “a resolution, correct or not, of some or all of the factual elements of the offense charged.” United States v. Scott, 437 U.S. 82, 97, 57 L.Ed.2d 65, 98 S.Ct. 2187 (1978). Furthermore, a trial judge’s characterization of his own action does not control the classification of the action. United States v. Scott, 437 U.S. at 96; United States v. Martin Linen Supply Co., 430 U.S. 564, 571, 51 L.Ed.2d 642, 97 S.Ct. 1349 (1977); United States v. Wilson, 420 U.S. 332, 336, 43 L.Ed.2d 232, 95 S.Ct. 1013 (1975); United States v. Jorn, 400 U.S. 470, 478 n. 7, 27 L.Ed.2d 543, 91 S.Ct. 547 (1971). Finally, it has been held where a motion to dismiss challenges the sufficiency of the evidence, the proper motion should be for a judgment of acquittal. See United States v. Ambers, 416 F.2d 942 (5th Cir. 1969), cert. denied, 396 U.S. 1039 (1970).

The State argues the trial court “dismissed” the information based upon a review of the checks offered as evidence in this case as well as the stipulations concerning the existence of numerous Bi-Agra Associations. It asserts the determination of which Bi-Agra Association owned the checks involved questions of fact. We agree. The record reflects the trial court, correct or not, did resolve factual issues in the instant case; thus, a judgment of acquittal occurred.

Our inquiry does not end here. We must next determine whether the judgment of acquittal was timely. The motion came while the jury was recessed during the direct examination of the first witness. K.S.A. 22-3419 provides in part:

“(1) The court on motion of a defendant or on its own motion shall order the entry of judgment of acquittal of one or more crimes charged in the complaint, indictment or information after the evidence on either side is closed if the evidence is insufficient to sustain a conviction of such crime or crimes.” (Emphasis added.)

Discussion of the federal counterpart of this statute, Rule 29(a), in 2 Wright & Miller, Federal Practice and Procedure: Criminal § 462 (1969) states:

“Despite what appears to be the clear language of the rule, judgment of acquittal may be ordered even before the government has closed its case if the basic facts lead inescapably to a conclusion that the prosecution must fail regardless of whatever evidence may be introduced.” (p. 244.)

See also 8A Moore, Federal Practice ¶ 29.04 (2d ed. 1978); Note, 71 Yale L.J. 171, 172-73 (1961).

Judgments of acquittal have been rendered before the close of the prosecution’s case where the government’s opening statement shows it has no case. United States v. Dietrich, 126 Fed. 676 (C.C.D. Neb. 1904); see also Annot., 75 A.L.R.3d 649 (1977). They have also been entered where basic facts lead to the conclusion the prosecution must fail regardless of the evidence to be introduced. United States v. Maryland Cooperative Milk Pro., 145 F. Supp. 151, 152 (D.D.C. 1956). See also United States v. Weissman, 266 U.S. 377, 69 L.Ed. 334, 45 S.Ct. 135 (1924).

Thus the defendant’s motion for judgment of acquittal was timely under the facts presented here.

Finally we note a judgment of acquittal, correctly or incorrectly arrived at, terminates the prosecution, and the double jeopardy clause of the Fifth Amendment bars further proceedings against the defendant. United States v. Scott, 437 U.S. at 91; Sanabria v. United States, 437 U.S. 54, 57 L.Ed.2d 43, 98 S.Ct. 2170 (1978); United States v. Martin Linen Supply Co., 430 U.S. at 571; Fong Foo v. United States, 369 U.S. 141, 7 L.Ed.2d 629, 82 S.Ct. 671 (1962); State v. Gustin, 212 Kan. at 479.

Therefore, we hold no appeal lies from a judgment of acquittal, and the issues raised by the State cannot be considered in this appeal.

The judgment of the lower court is affirmed.