Ex parte Frye

• Decision Date: 09 July 1952
• Docket Number: 38854-38856,Nos. 38851,s. 38851
• Citation: Ex parte Frye, 246 P.2d 313, 173 Kan. 392 (Kan. 1952)
• Parties: Ex parte FRYE. TUCKER v. EDWARDS. MYERS v. EDWARDS. BLAKE v. EDWARDS.
• Court: Kansas Supreme Court

Page 313

246 P.2d 313

173 Kan. 392

Ex parte FRYE.

TUCKER v. EDWARDS.

MYERS v. EDWARDS.

BLAKE v. EDWARDS.

Nos. 38851, 38854-38856.

Supreme Court of Kansas.

July 9, 1952.

Syllabus by the Court

In a habeas corpus proceedings, it appears that a grand jury was summoned to appear, impaneled, and began its deliberations at the beginning of the March term of the district court; at the end of the March term a special assistant attorney general and the foreman of the grand jury stated to the court that the jury was considering a certain matter which required further deliberations and requested that the court extend the time for the grand jury to deliberate past the end of the March term; the court made an order stating that the grand jury would be permitted to remain in session for another week after the end of the March term; about a week after the end of the March term, and in the June term, the grand jury returned four indictments; the defendants charged in the indictments brought those proceedings in habeas corpus to seek their release on the ground that the grand jury was without authority to indict them after the end of the March term--Held the grand jury ceased to be a legal entity at the end of the March term and the purported indictments of the petitioners here were void.

Arthur J. Stanley, Jr., of Kansas City, argued the cause and J. D. Lysaught, of Kansas City, was with him on the briefs for petitioner Ralph K. Frye.

Louis R. Gates, of Kansas City, argued the cause and Blake A. Williamson, Willard Phillips, Thomas C. Lysaught and Lee E. Weeks, all of Kansas City, were with him on the briefs for petitioner Clark E. Tucker.

Thomas E. Joyce, S. M. Terbovich, Kenneth Ray and T. M. VanCleave, Jr., all of Kansas City, were on the briefs for petitioner Edward J. Myers.

Joseph H. McDowell, David W. Carson and T. M. VanCleave, all of Kansas City, were on the briefs for petitioner Francis W. Blake.

Edward Rooney, Sp. Asst. to Atty. Gen., argued the cause, and Harold R. Fatzer, Atty. Gen., Paul E. Wilson, Asst. Atty. Gen., Harold H. Harding, County Atty., Wyandotte county, and Donald A. Hardy, Asst. County Atty., Wyandotte county, Kansas City, were with him on the briefs for respondent.

SMITH, Justice.

These are habeas corpus proceedings. The petitioners were all indicted by a purported grand jury in Wyandotte county. The indictments were all returned and filed on June 6, 1952. Since the offenses with which the petitioners were charged have no bearing on these proceedings, they will not be stated.

Pursuant to a petition of taxpayers filed in accordance with G.S.1949, 62-901, the district court of Wyandotte county ordered a grand jury to be summoned to attend the March, 1952 term of that court. This term commenced on the first Monday in March, or on March 3, 1952. It ended on the first Monday in June, or June 2, 1952. See G.S.1949, 20-1025. On March 4, 1952, the district court impaneled the grand jury and it immeidately commenced operations and continued to sit until May 31, 1952, which was actually the last working day of the March term, since the June term started the following Monday. On May 29, 1952, a special assistant attorney general and the foreman of the grand jury appeared before the district court of Wyandotte county and stated that a matter of extreme importance had arisen and in order that such phase of the investigation might be concluded the jury requested an extension of time within which to conclude its investigations and deliberations. This request was granted and an order was made by the district court, which purported to grant permission and authority to the grand jury to continue its investigations and deliberations to a time not later than June 6, 1952. No new oath was administered to the members of the grand jury at the beginning of the June term.

These indictments were returned on June 6, 1952, that is, at the end of the first week of the June term, and a week after the end of the March term.

Warrants for those indicted were duly issued and served. They thereupon brought these proceedings. They alleged in their petition that the pretened warrant upon which they were arrested was not issued upon any information or indictment filed or returned by any grand jury in accordance with the statutes; that the pretended warrant was issued on what purported to be an indictment filed on June 6, 1952, which indictment was without legal force or effect because no petition for a grand jury to attend the June, 1952 term of the district court of Wyandotte county was presented to any judge and no such jury was summoned to attend and by reason thereof there was no lawful grand jury in attendance at the June, 1952 term of court and such purported indictments and warrants were void and the restraint of the petitioners was unlawful.

We ordered the petitioners released on bond and set the cases down for hearing on July 1, 1952. In his return respondent alleged the facts about as they have been set out here and stated that the indictments and warrants were legal and the petitioners were lawfully held in custody. There being no dispute about the facts as to the controversy with which we are concerned, the petitions were finally submitted on their merits on July 1, 1952.

That the grand jury was summoned and impaneled for the March term and that these indictments were returned a week after the end of that term all concede. Likewise all agree that the district court attempted to give the grand jury authority to stay in session or to continue its deliberations for a week after the end of the March term.

The question is whether the district court had power to issue such order so that the grand jury, pursuant to such an order, really continued to exist after the end of the March term.

This sends us first to a consideration of our present statute providing for grand juries. The statute is G.S.1949, 62-901, 933. We are concerned especially with G.S.1949, 62-901 and 902.

G.S.1949, 62-901 provides as follows:

'A grand jury shall hereafter be ordered drawn and summoned to attend at a term of the district court of any county only as hereinafter provided. In each organized county a grand jury shall be ordered drawn and summoned to attend at a term of the district court of any county when a petition praying for said grand jury, and signed by taxpayers of said county as herein provided, shall be presented to the judge of the district court of said county at least forty days before the commencement of the term of court at which such grand jury may be desired by said petitioners. The number of the taxpayers of the county wherein a grand jury is desired who must sign a petition praying for such grand jury is hereby fixed as follows: In a county having a population of less than five thousand, the number must be at least one hundred; in a county having a population of five thousand or more and less than ten thousand, the number must be at least two hundred; and in a county having a population of ten thousand or more, and less than fifty thousand, the number must be at least four hundred; in a county having a population of fifty thousand, or over, the number must be at least seven hundred. For the purpose of this act, the population of any county shall be determined by the enumeration made by the township and city assessors of such county during the year next preceding the year when such petition for a grand jury may be presented.' G.S.1949, 62-902, provides as follows:

'Upon the presentation to the district judge of the proper county of a petition praying for a grand jury, as provided in this act, said judge shall order a grand jury to be drawn and summoned in the same manner as petit jurors for the district court, to attend at the term...