Asbell v. State

• Decision Date: 10 December 1898
• Docket Number: 10870
• Citation: 60 Kan. 51,55 P. 338
• Parties: MARION ASBELL v. THE STATE OF KANSAS
• Court: Kansas Supreme Court

55 P. 338

60 Kan. 51

MARION ASBELL v. THE STATE OF KANSAS

No. 10870

Supreme Court of Kansas

December 10, 1898

Decided July, 1898.

Error from Labette district court; A. H. SKIDMORE, judge.

Affirmed.

J. D McCue, and W. B. Glass, for plaintiff in error.

F. M Brady, county attorney, for defendant in error.

OPINION

DOSTER, C. J.:

The parties to this action have adopted a practice which assimilates the controversy to a proceeding in error, without inquiring whether such practice is correct. It will nevertheless be so treated, and the parties and proceeding designated accordingly. The error claimed is in an order of the district court refusing to entertain jurisdiction of an application by the plaintiff for a new trial. Marion Asbell was convicted of the crime of murder, and upon appeal to this court the judgment of conviction was affirmed. (The State v. Asbell, 57 Kan. 398, 46 P. 770.) At a subsequent term of the district court the convict filed a petition for a new trial upon the ground of newly-discovered evidence of which he was ignorant at the time of his trial, and which he could not, therefore, with due diligence have produced at the trial. Upon this petition summons was issued and served upon the governor, the attorney-general, the secretary of state, the county attorney, and the county clerk. The county attorney made a special appearance to object to the jurisdiction of the court. He moved to set aside the service of summons upon the ground that the state, being a sovereign power, could not be sued, and that there was no provision of law by which service of summons might be made upon it. This motion was sustained, and the review of that order is the object of this proceeding.

The plaintiff bases his contention upon the provisions of section 242 of the criminal code, and of section 320 of the civil code, General Statutes of 1897. Out of these, aided by incidental reference to sections 601 to 606 of the civil code (Gen. Stat. 1889, PP 4669-4671, 4676), he evolves by construction the theory that the state may be sued by a convicted defendant for the recovery of an order for a new trial. Section 242 of the criminal code reads as follows:

"Verdicts may be set aside and new trials awarded on the application of the defendant, and continuances may be granted to either party in criminal cases for like causes and under the like circumstances as in civil cases."

Section 320 of the civil code reads as follows:

"Where the grounds for a new trial could not with reasonable diligence have been discovered before, but are discovered after the term at which the verdict, report of referee or decision was rendered or made, the application may be made by petition, filed as in other cases, not later than the second term after discovery; on which a summons shall issue, be returnable and served, or publication made, as prescribed in section 74. The facts stated in the petition shall be considered as denied without answer, and if the service shall be complete in vacation the case shall be heard and summarily decided at the ensuing term, and if in term, it shall be heard and decided after the expiration of twenty days from such service. The case shall be placed on the trial docket, and the witnesses shall be examined in open court, or their depositions taken as in other cases; but no such petition shall be filed more than one year after the final judgment was rendered."

The claim is that section 242 of the criminal code incorporates within itself, by reference, section 320 of the civil code, and thereby confers jurisdiction to entertain a petition for a new trial upon the ground of newly-discovered evidence, and to issue a summons upon such petition. A question of statutory interpretation is thus raised. Is the first clause of section 242, "verdicts may be set aside and new trials awarded on the application of the defendant," an independent provision complete within itself, or is it connected with and modified by the succeeding clause, "for like causes and under the like circumstances as in civil cases"? In other words, does the last-quoted clause modify the declaration that "verdicts may be set aside," as well as the one that "continuances may be granted"? The plaintiff contends that it does. If so, it would appear that section 320 of the civil code has been made, by adoption, a part of section 242 of the criminal code, and, in consequence, that jurisdiction exists in the courts to entertain a petition for a new trial in a criminal case.

The statute is not of easy interpretation. It may be read either way, accordingly as it may be punctuated, and as stress may be laid upon the different words and clauses of the sentence. Like all other statutes, it must be construed with other provisions in pari materia. Elsewhere the criminal code (§§ 271, 274) makes liberal provisions for the granting of new trials to defendants, which, upon first consideration, seem to be intended to include the whole subject, and thus far throughout the history of the state they have been found ample, so far as known, to protect the rights of convicted persons in the respect in question. Again, looking at the precise language of section 242, the case of the appellant is not...