State v. Miller

• Decision Date: 08 April 1950
• Docket Number: No. 36926,36926
• Citation: 217 P.2d 287,169 Kan. 1
• Parties: STATE v. MILLER.
• Court: Kansas Supreme Court

Page 287

217 P.2d 287

169 Kan. 1

STATE v. MILLER.

No. 36926.

Supreme Court of Kansas.

April 8, 1950.

Syllabus by the Court

Following the affirmation of his conviction of murder, and sentence to death by hanging and the fixing by the Supreme Court of a date certain for his execution the defendant obtained a temporary reprieve from the Governor and thereafter a stay order from the District Court of the United States for the District of Kansas staying execution of his sentence during the pendency of an appeal to the United States Court of Appeals from its judgment denying him a writ of habeas corpus. The last mentioned judgment was affirmed, the defendant took no appeal and it is now too late for him to do so. By reason of the foregoing, and the fact that appeal contemplated by its terms has been finally disposed of the stay order granted by the United States has spent its force. The date originally fixed for execution of the defendant's sentence passed before expiration of the temporary reprieve and this Court's judgment has not been carried into effect. On consideration of the state's motion to fix a new date for execution of the sentence it is held that under the provisions of G.S.1935, 62-2414 and G.S.1935, 62-1720, the Supreme Court not only has power but it is its duty to grant the motion and fix a new date for the defendant's execution.

Edward Rooney, of Topeka, argued the cause for defendant.

Charles H. Hobart, Assistant Attorney General, argued the cause for the State.

PARKER, Justice.

This is a concluding if not the final chapter of a criminal prosecution for murder. It is here on motion by the state to reset the date for execution of the defendant who has been sentenced to death by hanging on his plea of guilty to the crime of murder in the first degree and a motion by the confessed murderer to dismiss the state's motion on the ground this court is without jurisdiction to either hear or sustain it.

The story of the tragedy herein involved and resulting in the death of one man and in the sentencing of another to die upon the gallows is already spread at length upon the pages of our reports. Miller v. Hudspeth, 164 Kan. 688, 192 P.2d 147, and State v. Miller, 165 Kan. 228, 194 P.2d 498. For our purposes all that it required is to state that on the morning of February 3, 1947, the defendant, with premeditation and without lawful excuse shot and killed M. F. (Mike) Churchill, the chief of police of the city of Osawatomie and a respected peace officer of this state, while the latter in the proper performance of his duties under the law, was attempting to arrest him for a violation of one of the ordinances of such city. After fleeing the scene of the homicide defendant was finally apprehended and charged in the district court of Miami county with the crime of murder in the first degree. There, after a full explanation of his rights under the laws and while represented by counsel of his own choosing, he entered a plea of guilty to murder as charged in the information and on such plea was eventually sentenced to die by hanging in the State Penitentiary at Lansing between the hours of 5:00 a. m. and 6:00 a. m. of May 2, 1947. If desired the foregoing factual statement can be supplemented by reference to the opinions of the two decisions to which we have heretofore referred.

Nor is it necessary to detail the proceeding had in this cause up to the time defendant's application for a writ of habeas corpus was denied in Miller v. Hudspeth, supra, or his appeal from the district court's judgment affirmed in State v. Miller, supra. It suffices to say that resort to the opinions of those cases will reveal that this court not only stayed defendant's execution during the pendency of his appeal until further orders but, because it was called to its attention he was poor and illiterate and suggested--erroneously as later developed--his sentence to pay the extreme penalty imposed by law was influenced by racial prejudice, went to extreme lengths in seeing to it that none of the rights guaranteed him as a citizen under the Federal and State Constitutions had been violated in the trial court.

Events transpiring subsequent to those heretofore mentioned are material to the issues now involved and hence require specific and more detailed attention.

Following affirmance of the appeal in State v. Miller, supra, this court, on July 9, 1948, pursuant to its statutory duty, see G.S. 1935, 62-2414, caused its clerk to issue a warrant to the warden of the Kansas State Penitentiary, directing that official to proceed between the hours of 1:00 a. m. and 7:00 a. m. on August 18, 1948, to carry into execution the sentence of death theretofore imposed upon the defendant.

August 13, 1948, just five days before the date set by this court for defendant's execution, the Honorable Frank Carlson, Governor of Kansas, by executive order, granted him a reprieve and stayed his execution until further orders. In substance the governor's order states the reprieve was granted in order to allow defendant adequate time in which to prepare and present an application for executive clemency in conformity with article 1, section 7 of the State Constitution and G.S. 1947 Supp. 62-2216.

On or about the 1st day of November, 1948, defendant instituted a proceeding for a writ of habeas corpus in the United States District Court for the District of Kansas predicated generally on the ground that he was convicted and sentenced in the courts of the State of Kansas in violation of due process of law as guaranteed by the United States Constitution. December 13, 1948, the Honorable Arthur J. Mellott, judge of such district court, found the defendant's claims were unfounded and denied the writ but did stay execution of the death sentence imposed upon him by the Miami county district court pending any appeal he might take from the judgment to the United States Court of Appeals for the Tenth Circuit.

January 13, 1949, the Governor of Kansas, terminated and cancelled the reprieve theretofore granted the defendant by written instrument, directed to the warden of the Kansas State Penitentiary, wherein such official was advised of this action and authorized to proceed in due course, and with due diligence, to execute the judgment and sentence of the Miami county district court, as reviewed, and affirmed by this court, whenever the restraining or injunctive order of the United States issued against him was set aside.

Defendant's appeal from the judgment of the United States District Court was heard in due course by the United States Court of Appeals, Tenth Circuit, and on July 5, 1949, that tribunal affirmed the judgment of the trial court in which defendant's application for a writ of habeas corpus was denied. The opinion of such decision, reported in Miller v. Hudspeth, 176 F.2d 111, and written for the court by the Honorable Walter A. Huxman, Circuit Judge, reviews at length the factual situation leading up to the defendant's conviction and sentence and in succinct and comprehensive language sets forth the court's reasons for concluding that he had not been deprived in the courts of the State of Kansas of any right guaranteed him by the due process clause of the Federal Constitution, Amend. 14.

The mandate from the United States Court of Appeals, Tenth Circuit, affirming the judgment of the United States District Court has been spread of record. Defendant took no appeal from such judgment and his time for doing so has expired. The result is the appeal referred to in the district court's order of December 13, 1948, has been heard and finally determined and its order staying the defendant's execution during the pendency of such appeal in the circuit court is no longer in force and effect.

It should perhaps be added that defendant at no time made any attempt to obtain a review of the judgment rendered by this court in State v. Miller, supra, in the Supreme Court of the United States and that it is now too late for him to do so.

With what has been heretofore stated we are now able to determine the merits of the motions filed by the respective parties.

Stripped of excess verbiage defendant's position with respect to the plaintiff's motion, as well as his own, is that since the date set by this court for his execution has passed without the sentence of death being executed it now has no authority to see to it that such sentence is carried out. Otherwise stated the sum and substance of his claim is that his success in putting off execution of his sentence until after the date fixed by the court furnishes him with permanent immunity from execution and has the result of nullifying the judgment and sentence theretofore imposed upon him. That, we have not overstated the import of his claim, is evidenced by an excerpt from his own motion wherein he states: 'The legislature gave nobody the power to re-fix the date of execution when the United States Court suspended it and the State should not be now permitted to guess whether the legislature wanted the United States Court to re-fix the date of execution or whether the legislature, if it had acted would have appointed and directed the Supreme Court, the District Judge or the Governor to fix it.'

Defendant has failed to cite authorities supporting his position, It has been said that under such circumstances, See McCoy v. Fleming, 163 Kan. 780, 783, 113 P.2d 1074, this court might well conclude that his counsel, after diligent search, have been unable to find any. Even so, we are not disposed to here invoke that rule. However, it can be said that after a painstaking examination of the decisions we have failed to find a single case that does so. Without regard to who has the duty to fixing the date the authorities uniformly hold that failure to execute a death warrant on the date fixed does not result in immunity to or discharge of a person sentenced to die but requires the fixing of a new date for his...