Cox v. Hand, 41679

• Decision Date: 12 December 1959
• Docket Number: No. 41679,41679
• Citation: 185 Kan. 780,347 P.2d 265
• Parties: Alex Harold COX, Petitioner, v. Tracy A. HAND, Warden, Kansas State Penitentiary, Lansing, Kansas, Respondent.
• Court: Kansas Supreme Court

Page 265

347 P.2d 265

185 Kan. 780

Alex Harold COX, Petitioner, v. Tracy A. HAND, Warden, Kansas State Penitentiary, Lansing Kansas, Respondent.

No. 41679.

Supreme Court of Kansas.

Dec. 12, 1959.

Rehearing Denied Jan. 27, 1960.

Syllabus by the Court

The record in an original proceeding in habeas corpus, in which the petitioner seeks his release from the Kansas State Penitentiary, examined and it is held: As is fully set forth in the opinion, no valid grounds for release being established, the petition is denied.

Alex Harold Cox, pro se.

J. Richard Foth, Asst. Atty. Gen., argued the cause, and John Anderson, Jr., Atty. Gen., was with him on the briefs, for respondent.

FATZER, Justice.

In this original proceeding in habeas corpus the petitioner seeks his release from the state penitentiary in which he is presently confined.

The pertinent facts are summarized: Petitioner was tried in the District Court of Sedgwick County, Kansas, for the unlawful possession of marijuana, in violation of G.S.1949, 21-2311. At the commencement of the trial on May 7, 1956, petitioner was present in person and with his own attorney. At the conclusion of the state's case the trial was continued until ten o'clock the following morning. At the scheduled hour on May 8, 1956, petitioner's attorney appeared but the petitioner, who was at liberty on bond, failed to appear. The trial court waited until 10:30 a. m. and then ordered the petitioner's bond forfeited. At that point in the proceedings, petitioner's attorney rested the defense, the jury was instructed, the state made its opening argument, and petitioner's attorney waived argument. After deliberation, the jury returned its verdict at 11:20 a. m. finding petitioner guilty as charged. The court accepted the verdict of the jury, dismissed it from further consideration of the case and ordered an alias warrant issued for the arrest of the petitioner.

On October 23, 1956, some five months later, the petitioner was arrested on the alias warrant and brought before the trial court. At that time his attorney, with the court's permission, withdrew from the case and the court appointed counsel for the petitioner. On the following day, petitioner's appointed counsel filed a motion for a new trial. The state objected to arguing that motion upon the ground it was filed too late and the court ruled that the petitioner had waived his right to file such a motion by voluntarily absenting himself from May 7, 1956, until his apprehension on October 23, 1956. Thereupon, the court heard evidence of petitioner's two prior felony convictions and sentenced him upon the verdict of guilty to a term of 15 years in the penitentiary pursuant to G.S.1949, 21-107a.

The petitioner first contends that the trial court, by proceeding with the trial in his absence, lost jurisdiction to accept the verdict of the jury, and to subsequently impose sentence upon him. We do not agree. At the time of his trial, he was free on bond. The state had concluded its case on the first day of the trial and when the court convened the following day to proceed with the case, he failed to appear. The journal entry of judgment contains an express finding that his absence was voluntary. The predicament of a trial court under these circumstances was considered by this court in State v. Way, 76 Kan. 928, 93 P. 159, 14 L.R.A.,N.S., 603. In its opinion the court made an exhaustive study of the authorities on both sides of the question, and noted the evils which might befall if a defendant, free on bond, could render it impossible to complete the trial merely by departing from the court, and concluded:

'The question therefore being an open one in this state, the court prefers to follow what is clearly the weight of authority, as well as what seems to be the better reason, and to decide that the right of the defendant to be present during a felony trial is one that may be waived, and that if, while at liberty on bond he is voluntarily absent, without having been excused by the court, when the jury reaches an agreement a verdict against him may lawfully be received in his absence.' (76 Kan. loc. cit. 939, 93 P. loc. cit. 163)

See, also, State v. Adams, 20 Kan. 311, 326. The holding announced in the Way case, supra, has been consistently followed in State v. Thurston, 77 Kan. 522, 526, 94 P. 1011; State v. Bland, 91 Kan. 160, 136 P. 947; State v. Stratton, 103 Kan. 226, 173 P. 300; State v. Fry, 131 Kan. 277, 291 P. 782; State v. Zakoura, 145 Kan. 804, 68 P.2d 11; State v. Maxwell, 151 Kan. 951, 958, 102 P.2d 109, 128 A.L.R. 1315. The briefs of the parties, and our limited research on the question, do not disclose a case in which it was held that the voluntary absence of the defendant, who was at liberty on bond at his trial in a felony case, was held to render the proceedings void. In Jamison v. Hudspeth, 168 Kan. 565, 213 P.2d 972, one of the grounds alleged for the issuance of a writ of habeas corpus was that the defendant was not present when the court reconvened the trial following a noon recess, and the jury was conducted to the jury room for further deliberation. The court noted that, as here, the record did not disclose his absence was involuntary and the petitioner having given no reason for his failure to be present at the time set for the court to reconvene, concluded in its opinion:

'* * * Under such a record petitioner is not entitled to his release by reason of section 10 of our bill of rights or under the provisions of G.S.1935, 62-1411. Neither would he, under such circumstances, be entitled to a reversal of a judgment of conviction on appeal. State v. Adams, 20 Kan. 311; State v. Kendall, 56 Kan. 238, 42 P. 711; State v. Maxwell, 151 Kan. 951, 102 P.2d 109, and cases therein cited; annotation 128 A.L.R. 1315-1329.' (168 Kan. loc. cit. 566, 567, 213 P.2d loc. cit. 974)

In view of the foregoing, we conclude that the absence of the defendant on May 8, 1956, under the facts and circumstances disclosed by the record, did not affect the right of the court...