Cox v. State

• Decision Date: 14 July 1966
• Docket Number: No. 44588,44588
• Citation: 416 P.2d 741,197 Kan. 395
• Parties: Eddie D. COX, Appellee, v. STATE of Kansas, Appellant.
• Court: Kansas Supreme Court

Page 741

416 P.2d 741

197 Kan. 395

Eddie D. COX, Appellee, v. STATE of Kansas, Appellant.

No. 44588.

Supreme Court of Kansas.

July 14, 1966.

Syllabus by the Court

In an appeal by the state in a proceeding under K.S.A. 60-1507 the record is examined and it is held: The trial court erred in holding that the petitioner was put twice in jeopardy by his conviction for kidnapping in the second degree and that his present detention for that offense is unlawful, all as more particularly set forth in the opinion.

Richard H. Seaton, Asst. Atty. Gen., argued the cause, and Robert C. Londerholm, Atty. Gen., and R. Edgar Johnson, County Atty., were with him on the briefs for appellant.

Richard F. Waters, Junction City, argued the cause and was on the briefs for appellee.

KAUL, Justice.

This is an appeal by the state in a proceeding initiated pursuant to K.S.A. 60-1507 wherein the trial court vacated and set aside the sentence which it had originally imposed and ordered the appellee's discharge from the Kansas State Penitentiary.

The appellee, hereinafter referred to as petitioner, while confined in the penitentiary filed the motion now under consideration in the district court of Geary County on September 7, 1965. The court appointed present counsel to represent him and ordered his return from the penitentiary for the hearing of his motion. A hearing was held and briefs, suggested findings and conclusions, were submitted to the court by both parties.

On February 16, 1966, the court filed its written memorandum finding in favor of the petitioner's contention that he had been placed twice in jeopardy and ordered his release from imprisonment. On the same date the court overruled an oral motion of the state for stay of execution pending disposition of an appeal by the state. Subsequently, on the same day, a stay was granted by this court on the written application of the state.

In this appeal the state contends the trial court erred in concluding that the petitioner was put twice in jeopardy by his conviction for kidnapping in the second degree and that his present detention for that offense is unlawful.

The trial court based its decision on the following facts. Petitioner was originally charged in the trial court on three counts as follows: Count one, assault with intent to kill (G.S.1949, 21-431, now K.S.A. 21-431); count two, first degree kidnapping (G.S.1959 Supp., 21-449, now K.S.A. 21-449), and count three, robbery in the first degree (G.S.1949, 21-527, now K.S.A. 21-527). On arraignment petitioner entered plea of not guilty to each of the three counts.

On March 14, 1960, a trial was commenced and at the close of the state's evidence, on motion of the state, count three was dismissed. On March 19, 1960, a verdict was reached and the jury found the petitioner guilty on count one, assault with intent to kill, and count two, kidnapping in the first degree, but stated as to its verdict in count two that the kidnapping occurred without harm to the victim.

Petitioner appealed his conviction to this court (State v. Cox, 188 Kan. 500, 363 P.2d 528) and was granted a new trial on the ground that the trial court had submitted an improper verdict form to the jury.

The objectionable verdict form had been fully prepared by the court. It provided for a finding of kidnapping in the first degree without harm to the subject and further fixed the sentence at not less than twenty years. The verdict as submitted required only dating and signing by the jury foreman. We held that under the statute in question, now K.S.A. 21-449, the verdict form, as submitted, invaded the province of the jury which, under the statute, has the duty alone to determine the punishment to be inflicted if trial is to a jury.

The petitioner was returned for trial to the district court and rearraigned on counts one and two. At petitioner's rearraignment on September 8, 1961, his counsel stated:

'Before the arraignment, your honor, I would like to make an objection for the record to being arraigned at this time on the grounds that the defendant is not properly in court * * *.'

The court held there was no basis to sustain the objection and it was overruled. The court proceeded with the rearraignment, the petitioner stood mute, and the court entered a plea of not guilty to both counts.

On September 12, 1961, the petitioner again appeared before the court in person, and by his attorneys, and requested permission to change his plea to guilty. Permission was granted and petitioner was rearraigned on counts one and two. He entered a plea of guilty to count one, felonious assault (K.S.A. 21-431) and as to count two petitioner entered a plea of guilty to the lesser included offense of kidnapping in the second degree (K.S.A. 21-450). The state announced that it was willing to accept the pleas. Thereupon the court found that the state had elected to accept the plea to the lesser offense of kidnapping in the second degree and waived its rights to proceed upon the charge of first degree kidnapping as contained in count two of the information. The court accepted petitioner's pleas of guilty, found him guilty in accordance therewith, and sentenced him to concurrent terms of one to ten years for the assault charged in count one and twenty-five years for kidnapping in the second degree under count two and allowed credit on the sentences for time previously spent by the petitioner in the penitentiary.

Subsequently, the petitioner filed a motion in the sentencing court to correct his sentence. On March 4, 1964, the sentencing court granted petitioner's motion and he was resentenced to concurrent terms of not more than ten years for assault and not more than thirty years for kidnapping in the second degree. At the hearing on the motion to correct sentence the state attempted to introduce evidence of prior felony convictions. The trial court's ruling excluding the evidence of prior felony convictions was appealed to this court and the ruling was affirmed in State v. Cox, 194 Kan. 120, 397 P.2d 406. Thereafter, petitioner initiated these proceedings pursuant to K.S.A. 60-1507.

The question presented is whether a sentence and conviction may be vacated by collateral attack on the grounds of subjection to double jeopardy by a petitioner who has secured a reversal of a conviction on appeal and on rearraignment on the original information enters a plea of guilty to a lesser included offense.

In concluding the petitioner was put twice in jeopardy, under the facts of this case, the trial court has rejected a long line of decisions in which the reasoning of this court has been to the contrary in construing and applying statutes which have been a part of the law of this state since territorial status (See Terr.L.1858, ch. 12, art. 13, § 1; Terr.L.1859, ch. 27, § 256; Terr.L.1858, ch. 12, art. 13, § 2; Terr.L.1859, ch. 27, § 257.) The pertinent statutes were reenacted by the legislature in 1868 and in identical form are now codified as K.S.A. 62-1601 which provides:

'A new trial is a re-examination of the issue in the same court.'

And K.S.A. 62-1602 which provides:

'The granting of a new trial places the parties in the same position as if no trial had been had; the former verdict cannot be used or referred to either in the evidence or argument.'

This court was first called upon to apply the statutes in 1871 in State v. McCord, 8 Kan. (2nd Ed.) 232. McCord was tried on an information charging him with murder in the first degree. In his first trial he was found guilty of manslaughter in the third degree. On his motion a new trial was granted by the trial court and at the second trial he was convicted of murder in the second degree. In his appeal McCord contended that on the second trial he could not be convicted of a higher degree of the crime of which he was charged than that of which he was found guilty in the first trial.

In applying Section 270 and Section 274 of the Code of Criminal Procedure of 1868, which are identical to what are now K.S.A. 62-1601 and 62-1602, respectively, this court stated in the McCord opinion:

'* * * In every case where we have seen the question discussed it is assumed as a power conferred by legislation or by long usage; and in no case is it held to be a constitutional grant. It is a privilege offered by the law to the accused, in addition to the guaranties afforded by the constitution. As the power is conferred by law, it is competent for the law-making branch of the government to extend it, or to limit and modify it at its pleasure, or to prescribe upon what terms it may be granted, so that it does not infringe upon any constitutional guaranty. In this state the terms are prescribed by law. In the Code of Criminal Procedure are these provisions:

'(Here quoting Sections 270 and 274.)

'The plain reading of these sections is conclusive of the whole matter under discussion. A critical examination of the sections does not change the result. A re-examination of the issue is to again examine it. The issue is the issue of the record, as it is there made up. It consists of the charge of the offense in all its degrees, as set out in the information, on the part of the state, and the plea of 'not guilty,' which is a denial of each and every allegation of the information, on the part of the defendant. Such is the issue on the record and the only issue in the case. It was the issue tried, and the issue to be retried, or in the words of the statute to be re-examined. The statute uses the words 'the issue,' not some part of the issue that may be ascertained by judicial construction-but the issue. Section 274 is quite as plain, and as if to guard against any misinterpretation declares that the granting of a new trial places the parties in the same position as if no trial had been had. This is clear and conclusive. The very essence of the argument in favor of the rulings contended for by counsel for appellant is that the new trial places the party...