Barrett v. Hand, 40537
| Decision Date | 09 November 1957 |
| Docket Number | No. 40537,40537 |
| Citation | 317 P.2d 412,181 Kan. 916 |
| Parties | Jonie BARRETT, Petitioner, v. Tracy HAND, Warden, Kansas State Penitentiary, Respondent. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. In a criminal prosecution failure to endorse the names of the witnesses known to the prosecuting attorney on the information at the time it is filed with the clerk of the court results in a nonjurisdictional defect which is waived by the accused when he enters a plea of guilty to the crime and/or crimes charged against him in such information.
2. The record in an original habeas corpus proceeding examined, and held, to disclose no legal ground for the issuance of a writ directing the petitioner's release from the state penitentiary.
Jonie Barrett, pro se.
Fred N. Six, Asst. Atty. Gen., argued the cause, and John Anderson, Jr., Atty. Gen., was with him on the briefs for respondent.
This is an original habeas corpus proceeding.
The conditions and circumstances under which petitioner is now confined in the state penitentiary under a plea of guilty, in case No. 4076 of the district court of Douglas County, of the crimes of burglary in the second degree and grand larceny and under pleas of guilty, in case No. 4091 of the same district court, of the crimes of breaking and escaping prison before conviction, larceny of an automobile, assault with intent to kill and robbery in the first degree are fully described in the opinion of Barrett v. Hudspeth, 174 Kan. 754, 258 P.2d 351, when he was previously here in a like proceeding, and for that reason need not be repeated.
For all purposes necessary for a decision in the present proceeding it suffices to say that, conceding he entered pleas of guilty as above indicated and is now confined in the state penitentiary under and by authority of the judgments and sentences imposed against him by the district court of Douglas County in cases Nos. 4076 and 4091, petitioner now contends he is illegally restrained of his liberty under a void judgment because, at the time of the entry of such pleas and their acceptance by the trial court, the prosecuting attorney had not endorsed the names of witnesses on the respective informations as required by the provisions of G.S.1949, 62-802.
Petitioner's contentions the provisions of 62-802, supra, are jurisdictional and hence the judgments in question are void lack merit and cannot be upheld. The general rule in jurisdictions having statutes similar to our own, containing provisions to the effect that the prosecuting officer shall endorse the names of the witnesses known to him at the time of filing an information, is that such requirements are directory, that the failure to endorse the names of witnesses is at the most an irregularity and that where no witnesses' names are endorsed on the information, a defendant waives such a defect by pleading to the information. See, e. g., 42 C.J.S. Indictments and Informations § 85, p. 947; 23 C.J.S. Criminal Law § 948f, p. 256; 2 Wharton's Criminal Procedure, 10th Ed., 1743 § 1285; Joyce On Indictments, 2d Ed., 717 § 608.
The conclusion just announced, as well as the general rule heretofore stated, finds support in many of our decisions. See Pyle v. Amrine, 159 Kan. 458, 474, 156 P.2d 509, where, with reference to the purpose of the very statute now under consideration we said the requirement that the names of all persons the state intends to use as witnesses at the trial of one charged with a criminal offense shall be endorsed on the information is a safeguard given the accused so that he will not be surprised at his trial. See, also, State v. Ruth, 21 Kan. 583; State v. Blackman, 32 Kan. 615, 5 P. 173; State v. Osborn, 54 Kan. 473, 481, 38 P. 572, and numerous other decisions of like import cited in West's Kansas Digest, Indictment and Information, k196 and Hatcher's Kansas Digest, Rev.Ed.,...
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