Cox v. State
| Decision Date | 06 November 1971 |
| Docket Number | No. 46407,46407 |
| Citation | 490 P.2d 381,208 Kan. 190 |
| Parties | Eddie David COX, Appellant, v. STATE of Kansas, Appellee. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. A person convicted of a crime under a city ordinance and later convicted of a felony under a state statute has not been put in jeopardy twice for the same offense, even though both crimes arose from a single incident, provided separate and distinct offenses were committed and charged.
2. The offense of carrying a concealed weapon under a city ordinance and the offense of felony control of a pistol by a former convict (K.S.A. 21-2611) are separate and distinct offenses even though they may occur in one incident.
3. The record is examined on appeal from an order rejecting movant's claim of double jeopardy and denying relief under K.S.A. 60-1507. The order is affirmed.
Ronald L. Gold, Shawnee Mission, argued the cause and was on the brief for appellant.
Mark L. Bennett, Jr., Asst. County Atty., argued the cause, and Vern Miller, Atty. Gen., and James A. Wheeler, County Atty., were with him on the brief for appellee.
Eddie David Cox appeals from an order denying his motion to vacate sentence pursuant to K.S.A. 60-1507. He is presently serving a sentence for felony control of a pistol as proscribed by K.S.A. 21-2611.
Appellant was first charged, tried and convicted under an ordinance of the City of Overland Park for unlawfully concealing a revolver upon his person. Thereafter the state filed a charge of felony control of a pistol which arose from the same incident. The appellant, Eddie David Cox, has a history of prior felony convictions. He plead guilty to this latter charge and was sentenced.
Appellant now bases his claim for relief from the sentence upon double jeopardy and contends the trial by the state put him in jeopardy for the same offense charged under the city ordinance.
He points out that the double jeopardy prohibition contained in Amendment 5, United States Constitution, was made applicable to the states by Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707. We might add that Section 10 of the Bill of Rights of the State of Kansas prohibited a person from being twice put in jeopardy for the same offense long before Benton v. Maryland was written. (See City of Olathe v. Adams, 15 Kan. 391, 395.)
We reject the contention of double jeopardy in this case even though both offenses charged did arise at the same time and the pistol was common to both. (See Wagner v. Edmondson, 178 Kan. 554, 290 P.2d 98.)
The offense of carrying a concealed weapon under the city ordinance and the offense of felony control of a pistol by a former convict are separate and distinct offenses even though they may occur in one incident. The person charged could have been guilty of the state offense without being guilty of violating the city ordinance. In Lawton v. Hand, 186 Kan. 385, 350 P.2d 28, the lack of identity of these two offenses was clearly explained. We see no need of further explanation to support our present holding.
The case of Waller v. Florida, 397 U.S. 387, 90 S.Ct. 1184, 25 L.Ed.2d 435, reh. den. 398 U.S. 914, 90 S.Ct. 1684, 26 L.Ed.2d 79, is relied on by appellant to support his claim for relief.
The Waller question was carefully formulated by the author of the majority opinion as follows:
'We act on the statement of the District Court of Appeal that the second trial on the felony charge by information ...
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State v. Jenkins
...be tried by both the municipal government and the State.). This court recognized that Waller overruled Earwood in Cox v. State, 208 Kan. 190, 191–92, 490 P.2d 381 (1971)( Earwood and other similar cases “may no longer be considered sound authority insofar as they are grounded on the theory ......
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State v. Torline, 47376
...Hand, 186 Kan. 385, 350 P.2d 28; State v. Gauger, 200 Kan. 515, 438 P.2d 455; Coverly v. State, 208 Kan. 670, 493 P.2d 261; Cox v. State, 208 Kan. 190, 490 P.2d 381; State v. Campbell, 210 Kan. 265, 500 P.2d 21; and State v. Cory, 211 Kan. 528, 206 P.2d 1115. The law is codified in K.S.A.19......
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State v. Cory
...from jail (Wagner v. Edmondson, supra); (2) possession of pistol after conviction of crime and carrying a concealed weapon (Cox v. State, 208 Kan. 190, 490 P.2d 381); (3) statutory rape and incest (Wiebe v. Hudspeth, 163 Kan. 30, 180 P.2d 315; (4) first degree kidnapping and forcible rape (......
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Cox v. State
...possession case. A motion filed on December 21, 1970, was denied by the trial court and affirmed on appeal by this court. (State v. Cox, 208 Kan. 190, 490 P.2d 381.) The basic issue raised on that appeal was double jeopardy. The motion now before the court was filed in the district court of......