Bailey v. Hudspeth

• Decision Date: 25 March 1948
• Docket Number: 37117.
• Citation: 191 P.2d 894,164 Kan. 600
• Parties: BAILEY v. HUDSPETH.
• Court: Kansas Supreme Court

191 P.2d 894

164 Kan. 600

BAILEY v. HUDSPETH.

No. 37117.

Supreme Court of Kansas

March 25, 1948

Rehearing Denied April 14, 1948.

Syllabus by the Court

Prosecution for a capital or otherwise infamous crime in a Kansas court of competent jurisdiction by information, followed by trial conviction, and sentence to the state penitentiary, all in conformity with the code of criminal procedure of the State of Kansas, does not deprive a citizen of the United States of his liberty in violation of, or rights guaranteed by, the provisions of either the Fourteenth or Fifth amendments to the constitution of the United States.

Wilford Riegle, of Emporia, for petitioner.

Harold R. Fatzer, Asst. Atty. Gen. (Ed. F. Arn, Atty. Gen., on the brief), for respondent.

PARKER Justice.

This is an original proceeding in habeas corpus whereby A. J. Bailey seeks his release from the state penitentiary where he is serving a life sentence for the crime of murder.

The events and proceedings leading up to the petitioner's conviction and sentence are not in dispute but they should be briefly stated before reference is made to his petition and the ground on which he relies as the basis for his release from the institution in which he is now confined.

On May 4, 1931, after he had been accorded a preliminary examination before a magistrate, as required by G.S.1935, 62-805 an information was filed in the district court of Osage county charging the petitioner with having murdered one Rosa Belle Bailey. Thereafter in such district court petitioner who was present in person and represented by his attorney, R G. Hepworth, was duly arraigned and entered a plea of guilty to the crime charged in the information. Subsequently, he was adjudged guilty upon such plea of the crime of murder in the first degree as charged in the information and sentenced to life imprisonment.

The allegations of the petition need not be detailed. Summarized they charge that petitioner was denied the right to be indicted by a grand jury before being brought to trial for the commission of an infamous crime as required by the 5th and 14th Amendments to the Constitution of the United States and that having been charged with such crime in the state court by information instead of indictment in violation of such constitutional amendments it follows that his conviction, his sentence, and his confinement are illegal and void.

On the same date his petition was filed in this court petitioner by motion requested the appointment of counsel to assist him in the preparation and presentation of his case. His request was granted and Mr. Wilford Riegle, a reputable and capable member of the bar of this state, was appointed as his legal representative. Since his appointment Mr. Riegle has zealously guarded the petitioner's rights at every stage of the proceedings, his services including personal conferences, extended research, submission of an excellent brief and oral argument of the cause when it was presented to this court at its last session.

Before giving consideration to the question raised by the petition it should also be stated that Kansas is one of the many states of the union having a code of criminal procedure which provides that offenses against the laws of the state may be prosecuted in the court having jurisdiction, either by indictment or information. G.S.1935, 62-801. Likewise added that such code, for the protection of persons accused of crime, requires, G.S.1935, 62-805, that no information shall be filed against any person for any felony until he shall have had a preliminary examination before a magistrate, who is charged, G.S.1935, 62-618, with the duty of discharging the person brought before him if it shall appear from the whole examination that no offense has been committed or that there is not probable cause for charging the prisoner with an offense. At such examination, which is publicly conducted, the accused has the right to be represented by counsel, to meet the witnesses face to face, to cross-examine such witnesses, to call witnesses in his own behalf, and to argue the merits of the cause. He is also entitled to have a transcript of all evidence introduced upon which the magistrate finds that a crime has been committed and that there are probable grounds for believing him guilty of its commission. It should also be noted, that unlike many of our cases, we are not here called upon to determine whether alleged violations of our state constitution or statutes require the issuance of a writ, it being conceded, under the allegations of the petition, that the petitioner's present confinement in the state penitentiary results from a judgment rendered by a Kansas court of competent jurisdiction pursuant to, and in compliance with, the laws of the state pertaining to the apprehension, arrest, trial, conviction and sentence of persons charged with the commission of crime.

In the interest of certainty and to avoid possible misunderstanding in the future we deem it advisable to quote verbatim the question which petitioner states is raised by his petition. It reads:

'The Fifth Amendment to the Constitution of the United States provides, among other things:

"No person shall be held to answer for a capital, or otherwise infamous crime, unless on presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger.'

'It is the contention of the Petitioner that this part of the Fifth Amendment is one of the privileges or immunities guaranteed to a citizen of both the United States and the State of Kansas, accused of a capital or otherwise infamous crime, whether it be in a Federal Court or in the appropriate court of this State; and that a citizen of the United States, or of this State, as the case may be, is entitled to this privilege and protection because the Fourteenth Amendment to the Constitution made the Fifth, as well as the other first Eight Amendments to the Constitution, applicable to, and binding on, the various States of the Union.'

Technically the scope of the foregoing contention does not include the claim that prosecution by information rather than by indictment resulted in depriving petitioner of his liberty without due process of law in violation of the 14th and 5th Amendments. However, because such claim was so made in oral argument, we shall, in our disposition of the cause, regard it as one of the issues involved.

Turning to our own decisions it should be noted that early in the history of Kansas jurisprudence, long prior to the ratification of the 14th amendment, in State v. Barnett, 3 Kan. 250, 87 Am.Dec. 471, we held:

'Article 5 of the amendments to the constitution of the United States, held not to be applicable to any other than proceedings in the United States court, and that there is no repugnancy between it and the act of legislature of 1864 (p. 111) providing for the trial of offenses upon information filed.' (Syl. 1.)

After the ratification of such amendment both of the grounds now relied on for the issuance of a writ were considered by this court and denied.

In State v. Whisner, 35 Kan. 271, 10 P. 852, where it was contended that prosecution by information was in violation of due process, we said:

'And we can perceive no fundamental rights which that system of jurisprudence, of which ours is derivative, has in any way been disregarded. The words 'due process of law' do not mean and have not the effect of limiting the powers of the state to prosecutions for crime by indictment; 'but these words do mean law in its regular course of administration, according to the prescribed forms, and in accordance with the general rules for the protection of individual rights.' Hurtado v. People of California, 110 U.S. 516, 4 S.Ct. 111, 292 ; Walker v. Souvinet, 92 U.S. 90-93 . The law authorizing the filing of information in such a case as this is not in conflict with our constitution, or the constitution of the United States. State v. Barnett, 3 Kan. 250 ; Cooley on Constitutional Limitations, 5th Ed., 376; Kalloch v. Superior Court, 56 Cal. 229; Ex parte Wilson, 114 U.S. 417, 5 S.Ct. 935 .

'A sufficient information was filed against the defendant. With the information was filed the sworn statements of the important witnesses, whose names were indorsed thereon. Thereby the defendant was fully apprised of the nature of the charges against him, so that he might know what he was to answer. The proceeding against him was upon inquiry. He was heard before he was condemned, and no judgment was rendered until after trial. Therefore there is no force whatever in the assertion 'that the proceeding was not by due process of law.'' Pages 277, 278 of 35 Kan., page 857 of 10P.

State v. Newton, 74 Kan. 561, 87 P. 757, was a murder case. There the effect of the appellants' argument was that the provisions of the 5th Amendment were imposed upon the states by the privileges and immunities clause of the 14th Amendment. We held to the contrary and in the opinion said:

'The appellants' first contention is that they cannot be held to answer for the crime of murder on presentment by information; that as citizens of the territory conveyed to the United States by the Louisiana-purchase treaty they are entitled to all the rights and immunities of citizens of the United States under the third article of that treaty. It is further claimed that under article 5 of the amendments to the constitution of the United States, no person can be held to answer for a capital or otherwise infamous crime unless on a presentment or indictment by a grand jury. It is readily conceded that the inhabitants of the ceded territory have all the rights and immunities of

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