Addington v. State

• Decision Date: 07 September 1967
• Docket Number: No. 44942,44942
• Parties: William H. ADDINGTON, Appellant, v. STATE of Kansas, Appellee.
• Court: Kansas Supreme Court

Page 532

431 P.2d 532

199 Kan. 554

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

No. 44942.

Supreme Court of Kansas.

Sept. 7, 1967.

Rehearing Denied Sept. 13, 1967.

Syllabus by the Court

1. Where the facts are admitted a factual issue should not be submitted to a jury.

2. It is the rule in this state, there being absent a right of appeal, that where the facts are not in dispute a commitment by a magistrate following a preliminary hearing will be reviewed by habeas corpus where venue is questioned.

3. Where a remedial act, usually liberally construed, is subject to constitutional restrictions the construction must keep the statute within the constitutional restrictions or the statute is void.

4. A statute should, if reasonably possible, be construed to uphold its constitutionality.

5. Although the provision of section 10 of the Bill of Rights, to the effect that an accused must be tried by an impartial jury of the county in which the offense has been committed, does not deal directly with venue the fact that a resident cannot be drawn out of his own county for jury service operates indirectly to make the provision a limitation on venue.

6. The requirement that offenses shall be prosecuted in the county in which committed is a product of the common law and although the common law does not control either our constitution or statutes, when common law terms are used the courts should look to common law definitions for their meaning.

7. The ancient common law of England relating to venue was changed by early statutes which became a part of the common law and by the time the common law was adopted by this state it had become an established rule that the common law was satisfied if the prosecution took place in either county, where the offense occurred partly in one county and partly in another, or if the prosecution took place in a county where the overt act or the effect of the overt act occurred.

8. The provision in K.S.A. 62-404 that 'When a public offense has been committed, partly in one county and partly in another, * * * the jurisdiction is in either county.' has been generally construed as requiring that the offense must be divisible, and each part must be unlawful in and of itself, and committed at a different time and place, or the offense must consist of more than one act, each of which must constitute an unlawful element of the offense without the presence of which the crime would not be completed.

9. The mere existence in some county of acts or conditions of the accused, lawful in and of themselves, but necessary to be alleged and proven in order to establish the crime as charged, does not invoke the power of the above provision of the statute, set out in Paragraph 8 of the syllabus, so as to permit the trial of the defendant in such other county.

10. It is the general rule that to satisfy the provision of K.S.A. 62-404, to the effect that when 'the act or effects constituting or requisite to the consummation of the offense occur in two or more counties, the jurisdiction is in either county.' there must be an overt act in one county and the effect of such overt act, which is necessary to complete the offense, occurs in another.

11. The locale for prosecuting public offenses is jurisdictional in this state and the prosecution of an accused, over his objection, in a local jurisdiction other than that fixed by the legislature is void.

12. A justice of the peace has no authority to hold preliminary hearings on offenses committed in counties other than the one in which he was elected.

13. K.S.A. 62-1422 has no application to prosecutions which have not reached the district court by indictment or information.

Shelley Graybill, Elkhart, argued the cause, and Daniel C. Bachmann, Wichita, was with him on the briefs, for appellant.

Richard J. Rome, County Atty., argued the cause, and Robert C. Londerholm, Atty. Gen., and Raymond F. Berkley and Patrick L. Dougherty, Asst. County Attys., were with him on the briefs, for appellee.

HATCHER, Commissioner:

This is an appeal from an order denying an application for a writ of habeas corpus.

The facts are not in dispute.

The appellant was complained against in five counts with feloniously issuing warehouse receipts in Reno County, Kansas, knowing at the time that no wheat for which the receipts were issued had been received by him as owner of the warehouse or placed under his control.

At the preliminary hearing the uncontradicted evidence showed that Addington Grain Company, Inc., a Kansas corporation with principal offices at Wichita, Kansas, owned and operated a licensed warehouse in Hutchinson, Reno County, Kansas in December of 1965. Warehouse receipts on forms furnished by the State Grain Inspection Department but paid for by the corporation were issued by the corporation covering wheat in tis Hutchinson facility. Receipts issued by Addington Grain Company, Inc., were registered by the Trust Department of the Merchants National Bank in Topeka, Kansas, a bonded registrar authorized and approved by the State Grain Inspection Department. During the period in question all of the business of Addington Grain Company, Inc. was conducted at its principal office at 4601 East Douglas in Wichita, Kansas.

On December 8, 1965, appellant executed the five warehouse receipts in question at his office, which was also the office of the corporation, at 4601 East Douglas Avenue, Wichita, Kansas. They were brought to Topeka the same day for registration. The next day appellant called on the president of the Eastside National Bank in Wichita, Sedgwick County, Kansas, and submitted the warehouse receipts as collateral for loans. Appellant there endorsed the receipts and delivered them to the banker who made the loan and retained the receipts in the bank files. The receipts were executed and endorsed by the appellant as the authorized agent of the corporation.

At the close of the state's evidence appellant moved for a discharge for the reason that the court's jurisdiction had not been established. The motion was overruled. At the close of the preliminary hearing appellant again renewed his motion for a discharge which was overruled.

The magistrate ordered the appellant held to answer to the charges in the complaint in the district court of Reno County. The appellant was ordered committed to the Reno County jail until bond was posted in the sum of $5,000. The appellant, while so committed, filed the petition for a writ of habeas corpus challenging the authority of the magistrate because of lack of venue in Reno County.

By agreement the evidence presented to the trial court consisted of the pleadings, exhibits, briefs and transcript of proceedings had in the magistrate court. After due consideration appellant's petition was denied, the temporary writ previously issued by the clerk dissolved at appellant's cost and appellant was remanded to the custody of the sheriff of Reno County. Although the above facts are agreed to for the purpose of this controversy we do not understand that the parties are necessarily bound thereby in the trial of the case in chief.

This appeal is from the order denying the writ.

We are confronted with a jurisdictional question raised by the appellee which must be disposed of before we proceed with the merits of the appeal.

Appellee suggests that 'the controlling problem in this appeal is whether or not the question of proof of venue can first be raised in a collateral attack by habeas corpus.' The appellee contends that its suggestion is supported by two general propositions of law-first, the question of the locus of a crime is a question of fact to be determined by the jury in the trial of the case in chief, and second, a writ of habeas corpus cannot be used as a means of reviewing the sufficiency of the evidence to establish venue.

We would agree with the appellee that as a general rule venue is a question of fact to be determined by the jury in the trial of the case in chief. (In re Stilwell, 135 Kan. 206, 10 P.2d 15.) However, we have no question of fact in this case. The place or places where the various elements of the alleged offense were committed are not in dispute. There remains only to be determined, as a matter of law from the admitted facts, the proper venue for the trial of the action. Where the facts are admitted a factual question should not be submitted to the jury. (Shrader v. McDaniel, 106 Kan. 755, 189 P. 954; Houdek v. Gloyd, 152 789, 107 P.2d 751; International Motor Rebuilding Co. v. United Motor Exchange, Inc., 193 Kan. 497, 501, 393 P.2d 992.)

Where the facts are not in dispute this court has applied the rule that in the absence of the right to an appeal a commitment by a magistrate at a preliminary hearing will be reviewed by habeas corpus where venue is questioned. (Gleason v. Board of County Comm'rs of McPherson Co., 30 Kan. 53, 1 P. 384.)

In In re Bolman, 131 Kan. 593, 292 P. 790, we stated in the syllabus:

'Habeas corpus will lie to inquire into the legality of one in custody under the order of a lower court when the question raised is the jurisdiction of the court to issue the order.' (Syl. 1.)

In the opinion it was stated that '(t)his question of jurisdiction really turns on a question of venue.'

It might also be suggested that in two recent cases jurisdiction was retained on appeal where the results of preliminary hearings were challenged by habeas corpus on sufficiency of the evidence. (In re Mortimer, 192 Kan. 164, 386 P.2d 261; State v. Earley, 192 Kan. 167, 386 P.2d 189.) It would appear rather unreasonable, where the facts are not in dispute, to require an accused to go to the expense and time of a trial in the district court before challenging venue as a result of the preliminary hearing.

We now reach the basic question-under the undisputed facts where was the venue of the action?

The statute which sets out the elements of the offense reads:

'A warehouseman or any...