372 P.2d 559 (Kan. 1962), 43020, Andrews v. Hand

Docket Nº:43020.
Citation:372 P.2d 559, 190 Kan. 109
Party Name:Lowell Lee ANDREWS, Appellant, v. Tracy A. HAND, Warden, Kansas State Penitentiary, Lansing, Kansas, Appellee.
Attorney:[6] James R. Ahrens and Richard C. Allen, of Topeka, argued the cause, and Buford Braly and Harry Hayward, of Kansas City, were with them on the briefs for Appellant. J. Richard Foth, Assistant Attorney General, of Topeka, argued the cause, and William M. Ferguson, Attorney General, Park McGee, A...
Case Date:June 09, 1962
Court:Supreme Court of Kansas
 
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Page 559

372 P.2d 559 (Kan. 1962)

190 Kan. 109

Lowell Lee ANDREWS, Appellant,

v.

Tracy A. HAND, Warden, Kansas State Penitentiary, Lansing,

Kansas, Appellee.

No. 43020.

Supreme Court of Kansas

June 9, 1962

Page 560

       Rehearing Denied July 9, 1962.

Page 561

Syllabus by the Court.

       The record in a proceeding for a writ of habeas corpus examined, and, as fully set forth in the opinion, it is held: The district court did not err in discharging the writ and ordering the petitioner remanded to the custody of the warden of the Kansas State Penitentiary.

       James R. Ahrens and Richard C. Allen, Topeka, argued the cause, and Buford Braly and Harry Hayward, Kansas City, were with them on the briefs, for appellant.

       J. Richard Foth, Asst. Atty. Gen., Topeka, argued the cause, and William M. Ferguson, Atty. Gen., Park McGee, Asst. Atty. Gen. and Robert J. Foster, Sp. Asst. Atty. Gen., Topeka, were with him on the briefs, for appellee.

       FATZER, Justice.

       This was a proceeding in habeas corpus. The petitioner-appellant is confined in the Kansas State Penitentiary pursuant to a sentence of death imposed by the district court of Wyandotte County on January 18, 1960, upon conviction by a jury on three separate counts of murder in the first degree for the premediated killing of his father, mother and sister on November 29, 1958. Following denial of his motion for a new trial, the petitioner appealed to this court which affirmed the judgment of conviction on December 10, 1960 (State v. Andrews, 187 Kan. 458, 357 P.2d 739). A motion for a rehearing was denied on January 25, 1961, and pursuant to G.S.1949, 62-2414, this court entered its order directing that the death sentence be carried out on March 9, 1961.

       Thereafter, application was made to the governor for a commutation of the death sentence to life imprisonment pursuant to G.S.1949, 62-2220, which was denied on March 6, 1961. The following day, a petition for a writ of habeas corpus was filed in the United States District Court for the District of Kansas (Andrews v. Hand, No. 3187 H.C.). The writ was issued that day, and an order staying execution was served upon the warden. The petition was set for hearing on March 16, 1961. At that hearing the United States [190 Kan. 110] District Court entered its order retaining jurisdiction of the body of the petitioner to grant counsel time in which to apply to the Supreme Court of the United States for a writ of certiorari. Such an application was sought and denied on October 9, 1961 (Andrews, Petitioner, v. Kansas, 368 U.S. 868, 82 S.Ct. 80, 7 L.Ed.2d 65). On November 8, 1961, the United States District Court dissolved the stay of execution, and on that same date the petitioner

Page 562

commenced this action in the district court of Leavenworth County (Andrews v. Hand, No. 1361 H.C.). A writ of habeas corpus was issued, and a hearing was held on November 21, 1961. Following an adjournment, the hearing was concluded on December 4, 1961, and the matter was taken under advisement. On December 18, 1961, the district court entered an order discharging the writ and remanding the petitioner to the custody of the respondent. The petitioner duly perfected this appeal.

       As preliminary to discussing the merits of this appeal, we note that a petitioner who is confined in the Kansas State Penitentiary and who seeks a writ of habeas corpus in the district court of Leavenworth County and the writ is denied, may, as a matter of right, appeal to this court from the judgment discharging the writ by complying with the adequate and easily complied-with method of appeal (G.S.1949, 60-3303, 60-3306), but the statute does not contemplate that he is entitled to a review of every matter involved in the trial in the district court without complying with wellestablished rules of procedure relating to appellate review (State v. Hamilton, 185 Kan. 101, 103, 340 P.2d 390; State v. Burnett, 189 Kan. 31, 33, 367 P.2d 67; Brown v. Allen, 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469, 503).

       In the instant case the petitioner has wholly failed to comply with G.S.1949, 60-3001 et seq., relating to the filing of a motion for a new trial. Before an appellant may obtain appellate review of alleged trial errors, such as the sufficiency of the evidence to support the judgment discharging the writ of habeas corpus, or other errors alleged to have occurred during the course of the trial, a motion for a new trial is required to be filed calling the district court's attention to those specific matters, and the motion be overruled (Marshall v. Bailey, 183 Kan. 310, 327 P.2d 1034; State v. Hickock & Smith, 188 Kan. 473, 363 P.2d 541). In the absence of such a motion, alleged trial errors are not open to appellate review (Russell v. Phoenix Assurance Co., 188 Kan. 424, 362 P.2d 430), and inquiry [190 Kan. 111] will not be made as to whether the evidence supports the findings of fact (Jeffers v. Jeffers, 181 Kan. 515, 313 P.2d 233; Andrews v. Hein, 183 Kan. 751, 332 P.2d 278; Barclay v. Mitchum, 186 Kan. 463, 350 P.2d 1109).

       Attention must be directed to another point. In the instant case, the petitioner did not prepare and file an abstract of the evidence introduced at the trial, but he filed a 'Statement of Appellant Relating to the Incorporation of the Abstract in this case Directly into the Brief.' Counsel certified that all of the material which was referred to and quoted in the brief was admitted into evidence at the trial, and reference to the record which is abstracted in the brief consists of the following: Four volumes of the certified transcript of the trial had in the district court of Wyandotte County; the petitioner's abstract on appeal to this court in State v. Andrews, supra; one volume of the certified transcript of the proceedings had in the United States District Court for the District of Kansas (Andrews v. Hand, 3187, H.C.); the depositions of Drs. Richard F. Schneider and William F. Roth taken in Kansas City and introduced in evidence in the district court, and the certified transcript of the proceedings had in the petitioner's trial below. In preparing his abstract, the petitioner failed to comply with Rule No. 5 of this court (188 Kan. XXVII; G.S.1949, 60-3826) requiring that the party seeking appellate review of a district court's order or judgment shall include in his abstract specifications of error of which he complains, separately set forth and numbered. Where an appellant has made no attempt to comply with the requirements of Rule No. 5, appellate review is precluded and his appeal will be dismissed (Quick, Receiver v. Purcell, 179 Kan. 319, 295 P.2d 626; Rice v. Hovey, 180 Kan. 38, 299 P.2d 45; Blevins v. Daugherty, 187 Kan. 257, 259, 356 P.2d 852; Lemon v. Pauls, 189 Kan. 314, 369 P.2d 355).

Page 563

       Notwithstanding the petitioner failed to file a motion for a new trial raising the question of the sufficiency of the evidence to support the judgment and also failed to comply with Rule No. 5, this court will, in accordance with its fixed policy in appeals where the death penalty has been imposed and the district court's judgment of conviction is still in force, examine the record in a habeas corpus proceeding to determine the alleged illegality of a prisoner's restraint by the warden for any error affecting the substantial rights of the petitioner (State v. Woodard, 7 Kan.App. 421, 53 P. 278; State v. Brady, 156 Kan. 831, 137 P.2d 206; State v. Miller, 165 Kan. [190 Kan. 112] 228, 194 P.2d 498; State v. Miller, 169 Kan. 1, 9, 217 P.2d 287; State v. Lammers, 171 Kan. 668, 672, 237 P.2d 410; Germany v. Hudspeth, 174 Kan. 1, 252 P.2d 858; State v. Andrews, supra; State v. Wilson, 187 Kan. 486, 357 P.2d 823; State v. Hickock & Smith, supra).

       We now turn to the merits of the appeal. The petitioner was eighteen years of age and was a very intelligent young man, he was in his second year of study at the University of Kansas. He lived with his father, mother and sister on a suburban farm in Wyandotte County. His sister was near his age and was attending a college in Oklahoma. Both were home for Thanksgiving vacation. The motive, plan, and the commission of the crimes for which the petitioner was convicted, and his designed efforts to establish an alibi and to point the finger of guilt at an unknown burglar, are detailed at length in this court's opinion in State v. Andrews, supra, and are incorporated in this opinion by reference. It is unnecessary to reiterate those facts, none of which the petitioner has ever denied.

       However, in view of the petitioner's contentions, we note briefly the events which occurred in the early morning of November 29, 1958. At approximately 1:00 a. m. officers of the sheriff's patrol arrived at the petitioner's home following his call to the sheriff's office reporting the crimes. After arriving at the Andrews home and finding the dead bodies of the petitioner's father, mother and sister, they called for help. The officers talked to the petitioner about ten minutes before the assistant county attorney and the sheriff arrived. He denied any knowledge of the commission of the crimes and stated that the same must have been committed by a burglar. When informed that he would be given a paraffin test he stated he had discharged his rifle the previous afternoon when he attempted to shoot a hawk near the Andrews home. During the interview the petitioner wept on one or more occasions and did not appear unconcerned. When the assistant county attorney arrived the petitioner was not being questioned by any officers and he did not observe any further questioning except a question or two as to where the petitioner had been and when he discovered the bodies. The county coroner was called to come to the Andrews home, and he found the petitioner rather unconcerned about funeral arrangements...

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