City of Wichita v. Hibbs

• Decision Date: 04 March 1944
• Docket Number: 35941.
• Citation: 146 P.2d 397,158 Kan. 185
• Parties: CITY OF WICHITA v. HIBBS.
• Court: Kansas Supreme Court

146 P.2d 397

158 Kan. 185

CITY OF WICHITA v. HIBBS.

No. 35941.

Supreme Court of Kansas

March 4, 1944

Rehearing Denied April 17, 1944.

Syllabus by the Court.

Where prosecution for violation of ordinance of city of first class was instituted on an oral complaint, defendant waived defect in verification of such complaint and right to demand filing of written complaint by execution of bond for appearance in such case at subsequent date. Gen.St.1935, 13-605, 13-623,

Where prosecution for violation of ordinance of city of first class was instituted by making of an oral complaint on oath defendant's failure, when arraigned in police court or thereafter, to demand that a written complaint under oath be filed, was a waiver of right to written complaint. Gen.St.1935, 13-605, 13-623.

The execution of an appearance bond or a recognizance for appeal waives all defects in process or warrant under which defendant has been arrested and brought before court for trial.

In prosecution for drunk driving and destruction of city property, admission of accident report which merely disclosed that defendant was driver of automobile was harmless in view of defendant's own testimony to same effect. Gen.St.1935 62-1718.

Admission of evidence, even when incompetent, is harmless error unless substantial rights are affected. Gen.St.1935, 62-1718.

An oral statement by defendant to police officer which, when reduced to writing, was freely and voluntarily signed by defendant and which tended to prove defendant guilty of charges of drunk driving and destruction of city property, was admissible as an admission against interest.

In absence of objection that accident report, which merely reflected defendant's admission as made to police officers, was not best evidence, defendant could not complain thereafter that it was reversible error to receive report in evidence in proof of fact that defendant was driver of automobile involved in traffic violation.

A defendant may be cross-examined concerning previous offenses and subjects involving him in degradation and disgrace even though they do not pertain to charge for which he is then on trial, where such cross-examination is made in good faith and for purpose of impairing defendant's credibility.

The extent of cross-examination touching credibility of a defendant rests within sound discretion of trial court.

Where defendant testified that he had not used intoxicating liquors on date of accident and that he never touched alcohol or whiskey in any form, cross-examination eliciting admission that defendant had been previously arrested for drunken driving was not reversible error.

In absence of affirmative showing that temporary admission of improper evidence resulted in prejudice to substantial rights of defendant, prompt striking of such evidence accompanied with instruction to disregard it cures error.

In absence of objection at trial, defendant could not complain of closing argument of city attorney or that certain photographs and other papers, not used by prosecution, were permitted to remain on counsel table during trial and argument.

A defendant cannot ignore matters claimed to be trial error, take his chances of an acquittal, and, after conviction, for first time on motion for new trial present his objections.

Where objections to alleged trial error are raised for first time on motion for new trial, refusal to grant new trial will not be disturbed on appeal.

Where defendant on motion to permit jury to view automobile driven by defendant at time of accident assured court that transportation would be furnished for jury to go to vehicle or that it would be brought to courthouse but failed to produce vehicle or furnish transportation, defendant could not complain that no inspection was made. Gen.St.1935, 60-2910.

In prosecution arising out of operation of automobile, whether jury should be permitted to view automobile was discretionary with trial court. Gen.St.1935, 60-2910.

A juror will not be permitted to impeach his own verdict.

The question of misconduct of jury in first instance is for trial court.

Where trial court, on motion for new trial for misconduct of jury, found that jury reached a just conclusion and that there was no reason to disturb verdict, order refusing to grant new trial would not be disturbed on appeal.

1. Where in a prosecution for violating an ordinance of a city of the first class the proceeding is instituted by the making of an oral complaint as permitted by G.S.1935, 13-605, defects in the verification of such complaint, also rights of the defendant to demand the filing of a written complaint, as authorized in G.S.1935, 13-623, are waived by the execution of a bond for appearance in the action at a subsequent date.

2. The execution of an appearance bond and/or a recognizance for appeal waive all defects in the process or warrant under which a defendant has been arrested and brought before the court for trial.

3. On appeal from a conviction for driving a motor vehicle while intoxicated and for destruction of city property the record is examined and held, there was no error affecting the substantial rights of the defendant, (1) in the admission of evidence, (2) in the extent of the cross-examination permitted by the trial court and touching the credibility of defendant, (3) in refusing to grant a new trial on the ground of either (a) misconduct of counsel, or (b) misconduct of the jury, and (4) in the failure of the trial court to require a view of the automobile driven by defendant before submission of the case to the jury for its determination.

Appeal from District Court, Sedgwick County, Division No. 2; Robert L. NeSmith, Judge.

Albert J. Hibbs, on appeal from a conviction in Police Court, was convicted of driving a motor vehicle on a public street while under the influence of intoxicating liquor and of the destruction of city property, and he appeals.

Kenneth K. Cox, of Wichita, for appellant.

O. W. Helsel, of Wichita (Vincent F. Hiebsch and K. W. Pringle, both of Wichita, on the brief), for appellee.

PARKER Justice.

Albert J. Hibbs was convicted in police court of violating ordinance of the city of Wichita prohibiting the driving of a motor vehicle on the public streets of that city while under the influence of intoxicating liquor and the destruction of city property. He appealed to the district court of Sedgwick county, where he was again tried and found guilty. The appeal is from the judgment of conviction and sentence imposed by the district court.

The record discloses the following facts: Shortly after midnight on August 2, 1942, two policemen of the city of Wichita found a Terreplane automobile which had been driven over the street curb at the southeast corner of the intersection of Kellogg and Estelle streets in that city and had torn down a street sign at such corner. When the officers reached the motor vehicle no one was in it, but lying on the ground a short distance therefrom was a boy about 10 years of age who was bleeding profusely and who apparently had been an occupant at the time of the wreck. The officers immediately began a search for the driver of the automobile and some 4 blocks from the scene of the accident one of them found the appellant who was concealing himself behind a building and some shrubbery. When apprehended he appeared to be intoxicated. Later he was taken to the police station and remained in custody until about 10:30 a. m. He was then handed an accident report form and asked to fill it out but requested the officer presenting it to him to make it out from information supplied by him, saying he would sign it when completed. This procedure was followed and the report, which disclosed appellant was the driver of the automobile at the time of the accident, was then signed by him. In the meantime the arresting officer made an oral complaint against Hibbs and he was charged on the police court docket with driving a motor vehicle on the streets while under the influence of liquor and with destroying and damaging city property. His trial was set for September 3, 1942, and he thereupon posted bond for appearance and was released. Subsequent to his conviction in police court he executed and filed his appeal bond in the sum of $200.

In the district court, prior to the opening statement of appellant immediately subsequent thereto, and at divers other times during the trial, appellant objected to trial and formally moved for his discharge on the ground there had been no complaint in writing or verified complaint of any character made against him and no warrant issued for his arrest. The first error of which appellant complains is the overruling of all such objections and motions. This complaint entirely overlooks the fact that without objecting to the sufficiency of the oral complaint made against him or demanding the filing of a written one and without challenging the right of appellee to cause his arrest without the issuance of a warrant, appellant entered into a recognizance for his appearance at the trial in police court and still later executed and filed his bond appealing from the judgment there rendered against him. The contention there was no verified charge of any character made against appellant is not substantiated by the record which discloses the making of an oral complaint on oath as authorized by G.S. 1935, 13-605. When arraigned in police court, in fact at no time during either trial did appellant demand that a written complaint under oath be filed against him, a right to which he was entitled under G. S.1935, 13-623. The failure to make such demand waived any right he might have had to require the filing of such written complaint. Moreover, any defect in the verification of the oral...