Converse v. Hand
| Decision Date | 13 June 1959 |
| Docket Number | No. 41451,41451 |
| Citation | 185 Kan. 112,340 P.2d 874 |
| Parties | Ronald I. CONVERSE, Appellant, v. Tracy A. HAND, Warden, Kansas State Penitentiary, Appellee. |
| Court | Kansas Supreme Court |
Syllabus by the Court
The record in a habeas corpus proceeding examined and held: The district court did not err in remanding the petitioner to the respondent, the warden of the Kansas State Penitentiary, since the petition for a writ of habeas corpus and subsequent proceedings showed no grounds for his release.
Ronald I. Converse, pro se.
Robert Hoffman, Asst. Atty. Gen., argued the cause, and John Anderson, Jr., Atty. Gen., and John A. Emerson, Asst Atty. Gen., were with him on the briefs for appellee.
This is an appeal from the judgment of the district court of Leavenworth county denying petitioner's application for a writ of habeas corpus.
The facts may be stated briefly: In October, 1957, petitioner was charged by information in the district court of Harvey county with three counts of obtaining money by false pretenses. During the course of the trial, counts two and three of the information were dismissed on motion by the State. The jury found petitioner guilty on count one. Pursuant to such conviction, he was sentenced under the Habitual Criminal Act (G.S.1949, 21-107a) to a term of ten to thirty years in the Kansas State Penitentiary at Lansing, where he is presently confined. Petitioner was represented by court appointed counsel throughout the proceedings in the district court. Following his conviction, no appeal was taken from the judgment or the sentence imposed.
In his petition for the writ, petitioner alleged that he was unlawfully deprived of his liberty for the following reasons:
'All Case Records and Order of Committment and Judgment and Sentence imposed are in violation of Due Process of Law and is an invasion upon the rights of your Petitioner, and does violate the Fourteenth (14) Amendment and Article Ten (10) of the Constitution of the State of Kansas, all of which will be proven upon proper hearing.'
The answer and return of the respondent, the warden of the Kansas State Penitentiary, denied all the allegations of the petition not thereafter admitted and alleged that petitioner was lawfully restrained of his liberty pursuant to his conviction in the district court of Harvey county, and that the sentence as adjudged by that court had not expired nor had it been commuted by the governor. Duly certified copies of the journal entry of judgment, information and commitment order were attached to the answer and made a part thereof.
On December 12, 1958, trial was had in the district court of Leavenworth county upon the issues joined. Petitioner was present in person. His petition was denied and he was remanded to the custody of the respondent, following which he duly perfected this appeal.
Petitioner appears to rely upon five grounds for his release from custody. We shall take them up in the order presented.
The first is that he was taken into custody in Fort Smith, Arkansas, on a warrant which charged him with the crime of forgery rather than the crime of obtaining property by false pretenses, the offense for which he was convicted after being returned to Kansas. The point is not well taken. The record shows that petitioner was in fact arrested in Arkansas and returned to Kansas to stand trial but it does not disclose any evidence to support the other allegations. For all that appears in the record, petitioner voluntarily returned to Kansas with the arresting officer. He cannot now be heard to complain that he was arrested in that state on a charge different from the one for which he was prosecuted in this state. It is the well-established rule that the jurisdiction of a district court of this state to try a person on a charge of having committed a public offense does not depend upon how he came to be in the state (Stebens v. Hand, 182 Kan. 304, 306, 320 P.2d 790; Carrier v. Hand, 183 Kan. 350, 351, 327 P.2d 895). See, also, Pettibone v. Nichols, 203 U.S. 192, 27 S.Ct. 111, 51 L.Ed. 148 and Lascelles v. State of Georgia, 148 U.S. 537, 13 S.Ct. 687, 37 L.Ed. 549.
The next ground relied upon is that he was held in the Harvey county jail for five days before he was brought before a magistrate for arraignment. The trouble here is that the allegation is not supported or corroborated by any competent evidence and this court is committed to the rule that the unsupported and uncorroborated statements of the petitioner in a habeas corpus proceeding do not sustain the burden of proof or justify the granting of a writ where, as here, the judgment rendered is regular on its face and entitled to a presumption of regularity and validity (Cunningham v. Hoffman, 179 Kan. 609, 611, 296 P.2d 1081, and cases therein cited).
Assuming, arguendo, that the allegation is true, it still would not afford grounds for a writ of habeas corpus. An analogous situation was presented in Rutledge v. Hudspeth, 169 Kan. 243, 218 P.2d 241, where the petitioner was held in jail for five days before a warrant was read to him. It was said:
'* * * A petition for a writ of habeas corpus by one being under a sentence after a plea of guilty is a collateral attack upon that judgment. In order for such an attack to be successful it must be made to appear that the judgment is void. Such a judgment carries with it a presumption of validity. (See Miller v. Hudspeth, supra [164 Kan. 688, 192 P.2d 147].) We considered as argument analogous to this in Wears v. Hudspeth, 167 Kan. 191, 205 P.2d 1188, 1189. There a petitioner, who was held as a parole violator, asked for a writ and argued amongst other things that he was entitled to a writ because he was held prior to his delivery to the authorities at the penitentiary at a jail other than the one designated by the trial court. We said:
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