State v. Addington

• Citation: 472 P.2d 225,205 Kan. 640
• Decision Date: 17 July 1970
• Docket Number: No. 45420,45420
• Parties: STATE of Kansas, Appellee, v. William H. ADDINGTON, Appellant.
• Court: United States State Supreme Court of Kansas

Page 225

472 P.2d 225

205 Kan. 640

STATE of Kansas, Appellee, v. William H. ADDINGTON, Appellant.

No. 45420.

Supreme Court of Kansas.

July 17, 1970.

Rehearing Denied Aug. 18, 1970.

Syllabus by the Court

1. An arrest which may prove unlawful because based on a defective warrant, does not, standing alone, invalidate a subsequent conviction.

2. Unless the defendant's substantial rights are prejudiced at trial as a direct result of an unlawful arrest, his arrest will not vitiate his subsequent conviction.

3. As a general rule unless a plea in abatement is presented prior to arraignment and before an application for a continuance, it is regarded as waived.

4. Time is not an indispensable ingredient of the offense defined by K.S.A. 21-618, and the offense may be proved to have been committed at any time within the period prescribed by the statute of limitations.

5. Ordinarily venue is a question of fact and may be established by proof of facts and circumstances from which venue be fairly and reasonably inferred.

6. Copies of regular reports to the registrar required to be filed by a public warehouseman (K.S.A. 34-249), which are kept and used by the corporation to determine its daily grain position, constitute a 'book of accounts' kept by a moneyed corporation within the meaning of K.S.A. 21-618.

7. Whether or not copies of regular reports to the registrar were a 'book of accounts' of a moneyed corporation was a question of law to be decided by the court rather than by the jury.

8. K.S.A. 21-618 condemns the making of any false entry in a book of accounts kept by a moneyed corporation by which any pecuniary obligation, claim or credit shall be or shall purport to be affected.

9. The adequacy of instructions is determined by their being considered as a whole, each in conjunction with all other instructions in the case.

10. The length of time a jury shall be kept deliberating in an attempt to reach a verdict is a matter within the sound discretion of the trial court.

11. In a criminal prosecution wherein the defendant was found guilty of making false entries in a book of accounts of a moneyed corporation in violation of K.S.A. 21-618, the record is examined, and it is held, that no prejudicial error warranting reversal has been made to appear.

Shelley Graybill, Elkhart, argued the cause, and was on the brief for appellant.

Keith Sanborn, County Atty., and R. K. Hollingsworth, Deputy County Atty., argued the cause, and Kent Frizzell, Atty. Gen., was with them on the brief for appellee.

O'CONNOR, Justice.

The defendant has appealed from his conviction by a jury on one count of making false entries in a book of accounts of a moneyed corporation. (K.S.A. 21-618.) The jury was unable to agree on ten other counts with which defendant was charged-five counts of issuing warehouse receipts for grain not received (K.S.A. 34-290) and five counts of issuing warehouse receipts containing false statements (K.S.A. 34-291)-and a mistrial was declared. Hence we confine our attention to questions relating to only the one count upon which conviction was had.

The factual background of the case will be developed as defendant's numerous contentions on appeal are considered. We turn first to the proceedings prior to trial in district court.

Defendant was originally charged in Reno county, but in Addington v. State, 199 Kan. 554, 431 P.2d 532, we ordered him discharged because venue for the prosecution of the offenses did not lie in that county. Thereupon, prosecution was begun in Sedgwick county on September 12, 1967, with the filing of a complaint duly subscribed and sworn to under oath by S. J. Reda, a warehouse examiner, before a deputy clerk of the court of common pleas, charging defendant with the ten counts upon which the jury subsequently reached an impasse. A warrant was issued, signed by the deputy clerk. The return shows defendant was arrested September 14, at which time he appeared before the court and waived the reading of the complaint and warrant. Defendant's counsel moved to quash the warrant and dismiss the complaint for the reason the matter was still pending in Reno county. The court took no action on the motion but set a date for preliminary hearing and fixed bond at $1,000. Defendant was released upon making bond.

On September 28, defendant filed a motion to dismiss and quash the warrant for the reason the complaint was not made to a magistrate, no witnesses were examined on oath, and probable cause was not found to exist by a court or magistrate, contrary to K.S.A. 62-602 and the federal and state constitutions. The following day the case came on for preliminary hearing. Prior to the argument of defendant's motion the county attorney presented the magistrate with an amended complaint and requested that Mr. Reda be sworn to sign it. After swearing the allegations of the complaint were true, Reda signed it before the magistrate, who issued an amended warrant upon which the defendant was immediately arrested in open court.

The amended complaint and warrant were identical to the original, except there was added Court 11, charging defendant with the offense of which he was convicted.

The court announced defendant's motion to quash and dismiss would be considered as having been lodged against the amended complaint and warrant, since the matter was now moot as to the original complaint and warrant. Further ruling on the motion was reserved until after both parties presented their evidence at the preliminary hearing, at which time the motion was overruled. Defendant was bound over for trial on all eleven counts and made bond for appearance in the district court.

After an information was filed, defendant, by way of habeas corpus, attacked the proceedings in the court of common pleas on the basis the original complaint and warrant were void and there was no evidence to support a finding of probable cause. The writ was denied.

At arraignment on the information defendant stood mute, and pleas of not guilty were entered in his behalf. Thereafter he filed a plea in abatement on the grounds the warrant and amended warrant were not issued by a magistrate upon a finding of probable cause; that as to Count 11, the evidence before the magistrate was insufficient to show a crime had been committed, or probable cause to believe defendant committed it; and further, the state failed to show venue of the offense in Sedgwick county. The plea was overruled and the case came on for trial March 25, 1968, in district court.

The first two specifications of error relate to the validity of the original warrant issued by the deputy clerk of the court of common pleas and the amended warrant issued by the examining magistrate. The argument is made that the deputy clerk was without power and authority to issue a warrant, and that the amended warrant issued by the magistrate on a complaint containing only the naked allegations of the elements of the offense in the words of the statute, without examination of the complainant, was void. Both contentions are without foundation and cannot, under the circumstances, be used as a basis for vitiating defendant's conviction.

With respect to the issuance of the original warrant, that matter became moot when an amended complaint was filed and an amended warrant issued. Furthermore, under the prior decisions of this court, any objection defendant may have had to the power or authority of the deputy clerk to issue the warrant was effectively waived when defendant voluntarily gave bond for appearance at his preliminary hearing at a later date. (State v. Munson, 111 Kan. 318, 206 P. 749; State v. Miller, 87 Kan. 454, 124 P. 361; State v. Longton, 35 Kan. 375, 11 P. 163; 2 Hatcher's Kansas Digest (Rev.Ed.), Criminal Law § 87.) The only objection defendant registered to issuance of the original warrant was that the Reno county prosecution was still pending. Before the court ruled on the motion to quash, defendant gave bond, and he was no longer held by virtue of the original warrant.

The amended complaint upon which the amended warrant was issued was sworn to positively, under oath, before the magistrate. In such case, and particularly when the crime was charged substantially in the language of the statute, the requirement of the Bill of Rights, that no warrant shall be issued but on probable cause supported by oath or affirmation, is satisfied by the charge made and the positive form of the verification. (K.S.A. 62-602; see City of Holton v. Bimrod, 61 Kan. 13, 58 P. 558.) The allegations of the complaint positively sworn to provided the magistrate sufficient basis for making the requisite finding of probable cause to issue the warrant. If there was any deficiency as to probable cause, that was cured by the fact the motion to quash was not acted on until after all the evidence was produced at the preliminary hearing and the court ruled that the crimes had been committed and there was probable cause to believe defendant committed them. (See, State v. Jones, 202 Kan. 31, 446 P.2d 851.)

Despite what has been said, the state suggests, and we believe rightly so, that the short answer to defendant's challenge to the legality of his arrest is that his arrest on the amended warrant, even if defective or irregular, did not void his subsequent conviction. In Kinnell v. State, 205 Kan. 445, 469 P.2d 348, we held:

'An illegal arrest and detention od not, standing alone, invalidate a subsequent conviction (Baier v. State, 197 Kan. 602, 419 P.2d 865; State v. Dobney, 199 Kan. 449, 429 P.2d 928; Wheeler v. State, 202 Kan. 134, 446 P.2d 777; Moreland v. United States, 347 F.2d 376 (10 Cir.1965); Davis v. United States, 416 F.2d 960 (10 Cir.1969); United States ex rel. Ali v. Deegan, 298 F.Supp. 398 (S.D.N.Y., 1969)).' (pp. 445-446, 469 P.2d p. 348.)

The law is well settled that jurisdiction of a court to try a person accused of a crime is not divested by the fact he may have been unlawfully...