State v. Brady

• Decision Date: 08 May 1943
• Docket Number: 35867.
• Citation: 156 Kan. 831,137 P.2d 206
• Parties: STATE v. BRADY.
• Court: Kansas Supreme Court

137 P.2d 206

156 Kan. 831

STATE v. BRADY.

No. 35867.

Supreme Court of Kansas

May 8, 1943

Rehearing Denied June 18, 1943.

Syllabus by the Court.

Where judgment entered on plea of guilty of first degree murder imposed death sentence and fixed time for execution, Supreme Court would consider upon its merits an appeal, though it challenged only statutory authority to execute sentence and court's jurisdiction to fix date of execution. Gen.St.1935, 21-401, 62-2401 to 62-2416; Gen.St.Supp.1941 21-403.

The statute prescribing method for executing death sentence being in "pari materia" with statute subsequently amended so as to authorize imposition of death penalty upon a plea of guilty of first degree murder as well as jury verdict applies in all cases where death sentence is lawfully imposed whether after trial by jury or plea of guilty. Gen.St.1935, 62-2401 to 62-2416, 62-2412; Gen.St.Supp.1941, 21-403.

The statute prescribing method of executing death sentence on one "tried and convicted" and sentenced to suffer death uses quoted words as applying to one who has been regularly sentenced after plea of guilty of a crime punishable by death as well as to one so sentenced after verdict of guilty. Gen.St.1935, 62-2412.

Unless a different meaning is imported by context of statute or indicated by particular matter to which it relates, the word "trial" means judicial examination and decision of matters at issue before a competent tribunal. Gen.St.1935 60-106, 60-2901.

The term "conviction" applies equally in cases where a plea of guilty has been entered and where there has been a verdict of guilty.

Courts have "inherent powers", though perhaps not as broad in criminal as in civil matters, to effectuate the functions and duties imposed upon them.

District court having determined that death penalty should be imposed on one who has pleaded guilty to first degree murder has jurisdiction under statutes relating to execution of death sentences to fix the date for execution of the sentence. Gen.St. 1935, 62-2401 to 62-2416; Gen.St.Supp. 1941, 21-403.

District court having determined that one who had pleaded guilty to charge of first degree murder should suffer death penalty acted within its jurisdiction in fixing the date for execution of sentence at a time more than 60 days after imposition of sentence. Gen.St.1935, 62-2401 to 62-2416; Gen.St.Supp. 1941, 21-403.

Where death sentence for first degree murder was suspended pending final determination of appeal, it became duty of Supreme Court when sentence was affirmed to fix date for execution of sentence and to issue warrant in conformity therewith. Gen.St.1935, 62-2414; Gen.St.Supp. 1941, 21-403.

Courts are limited to exercise of "judicial function" of interpreting and applying the law as it is and may not usurp either legislative power of establishing public policy or executive power of exercising clemency.

1. Construing our statutes it is held:

(a) Section 62-2412, G.S.1935, which fixes the method of executing sentence of death and otherwise prescribes procedure in connection therewith, is applicable in cases both of conviction upon plea of guilty and after verdict of guilty.

(b) The words "tried and convicted" as used in 62-2412, supra, applies to one who has been regularly sentenced after plea of guilty to a crime punishable by death as well as to one so sentenced after verdict of guilty of such crime.

(c) Where a plea of guilty to murder in the first degree has been entered and the District Court, in discharging the duty imposed by Section 21-403, 1941 Supp.G.S. 1935, has determined that the death penalty shall be inflicted, the court has power under the statutes relating to "Execution of Death Sentences", Sections 62-2401 to 62-2416, G.S.1935, to fix the date for execution of the sentence.

2. Where appeal has been taken from a sentence of death for murder in the first degree and the execution of the sentence has been suspended pending final determination of the appeal, it becomes the duty of this court, if the sentence is affirmed, to fix the date for execution of the sentence and to issue warrant in conformity therewith. G.S.1935, 62-2414.

3. Record examined in an action in which the death penalty was imposed, after a plea of guilty to murder in the first degree had been entered, and no error found.

Appeal from District Court, Cowley County; Stewart S. Bloss, Judge.

Fred L. Brady pleaded guilty to a charge of murder in the first degree and was sentenced to death, and from the judgment and an order overruling his motion for a new trial, he appeals.

Judgment affirmed.

C. H. Quier, of Winfield, for appellant.

John A. Herlocker, of Winfield, and Frank G. Theis, of Arkansas City (A. B. Mitchell, Atty. Gen., and W. B. Timmerman, Asst. Atty. Gen., on the brief), for appellee.

HOCH Justice.

Appellant pleaded guilty to the crime of murder in the first degree and was sentenced to death. He appeals from the judgment and from the order overruling his motion for a new trial. His contentions are that our statutes provide no method for carrying into effect a death penalty, except upon conviction after trial by jury, and that there is no specific statute which empowers the trial court to fix the day for executing the death sentence and that therefore there is no lawful way in which such sentence can be carried out.

Although the facts are not in dispute and there is no contention that the defendant's confession and formal plea of guilty were obtained by the use of force, by threats, intimidation, or other improper means, or that he did not have a fair trial, we think it advisable on account of the gravity of the case to relate the principal facts.

The appellant, Fred L. Brady, was arrested in Cowley County, Kansas, on January 10, 1943, for the murder on January 9, 1943, of one Joe Williams, a colored man. He confessed having committed the crime, waived preliminary hearing, and on January 11 was bound over to the district court of Cowley County for trial. An information signed by John A. Herlocher, county attorney, was filed charging the defendant with murder in the first degree. 21-401, G.S.1935. The defendant was thereupon brought before Honorable Stewart S. Bloss, Judge of the District Court, advised of the nature of the charge, and C. H. Quier, a reputable practicing attorney of Winfield, Kansas, appointed to represent him.

On January 13, 1943, the defendant appeared in person and by his attorney, the state being represented by the county attorney. The following proceedings thereupon took place:

"By the court: Will you stand up, Mr. Brady? (The defendant stands up in front of the judge's bench)

"By the court: Your name is Fred L. Brady?

"By the defendant: Yes.

"Court: You are represented by Charles Quier, an attorney of this city?

"Defendant: Yes.

"Court: He has conferred with you since he was appointed the other day to represent you?

"Defendant: Yes.

"Court: Are you willing at this time to waive formal arraignment, that is, the reading of the entire information wherein the charge against you is stated? Are you willing to waive that formal arraignment and are you ready to plead one way or the other in this matter at this time?

"Mr. Herlocker: I would like for the court to read the information.

"By the Court: I will read it:

"State of Kansas, plaintiff vs Fred L. Brady, defendant.

"No. 5023. Information.

"Comes now John A. Herlocker, county attorney of Cowley County, Kansas, and gives the court to understand and be informed,

"That on the -- day of January, 1943, in the County of Cowley and State of Kansas, the defendant Fred L. Brady did then and there unlawfully, feloniously, wilfully, deliberately, premeditatedly and with malice aforethought kill and murder one Joe Williams, then and there being, by shooting him the said Joe Williams with a certain loaded 22 caliber rifle, which the said Fred L. Brady then and there in his hands had and held, while and at which said time the said Fred L. Brady was perpetrating or attempting to perpetrate a robbery upon the person of said Joe Williams; contrary to the form of statutes in such cases made and provided and against the peace and dignity of the State of Kansas.

"John A. Herlocker

"County Attorney.

(Verification here shown.)

"By the Court: You have heard me read the information. Are you ready Mr. Brady to enter a plea one way or the other in this case?

"Defendant: Yes sir.

"Court: How do you plead, after consulting with counsel and going over the matter with him ? Do you plead guilty, or not guilty?

"By the Defendant: Guilty.

"By the Court: I understand there is a recent statute in these matters, that the Court should hear some evidence after the entering of the plea of guilty to determine what the punishment should be, what penalty should be imposed. So the Court will proceed to hear evidence along that line.

"By Mr. Herlocker: The state is ready at this time to introduce evidence.

"By the Court: Mr. Brady, or Mr. Quier, is there any reason why the Court should not proceed to hear evidence in order to determine what the penalty and sentence should be?

"Mr. Quier: None.

"Mr. Brady: No."

We summarize the testimony thereupon received. Jesse Dickey, who lived on the same street and about two blocks south of Joe Williams, testified that on the evening of January 9 he was on the front porch of his house about ten or ten thirty o'clock and saw a man in the street or in the edge of his yard in front of his house carrying "a long gun". He identified the defendant as the man he saw carrying the gun and saw at the police station the next day. Jesse Rindt a funeral director, Lester Richardson, Chief of Police of Arkansas City, Marshall...