Fitzgerald v. Amrine
| Decision Date | 11 October 1941 |
| Docket Number | 35245. |
| Parties | FITZGERALD v. AMRINE, Warden. |
| Court | Kansas Supreme Court |
Syllabus by the Court.
In view of statute providing that whenever any offender is declared by law punishable, on conviction, by confinement and hard labor for a term not less than any specified number of years and no limit to the duration of such imprisonment or confinement is declared, the offender may be sentenced to imprisonment during his natural life, or for any number of years not less than such as are prescribed, a sentence of more than 15 years can be given under the statute providing that one convicted a third time of a felony, shall be confined in the penitentiary for a period of not less than 15 years, notwithstanding that no maximum sentence is provided for. Gen.St.1995, 21-109; Gen.St.Supp. 1939, 21-107a.
Under G.S.1935, 21-109, the provision for a minimum sentence of not less than fifteen years in G.S.1939 Supp. 21-107a construed to allow sentence for life or for any number of years not less than the prescribed minimum.
Proceeding in the matter of the application of E. R. Fitzgerald, alias Edward R. Fitzgerald, alias Edward R. Roleau, alias Edward R Rollo, alias Edward Fitzpatrick, alias Edward Fitzgerald Rollo, petitioner, for writ of habeas corpus, against Milton F. Amrine, Warden of the Kansas State Penitentiary respondent.
Petition denied.
Edward R. Fitzgerald, pro se.
Jay S Parker, Atty. Gen., and Jay Kyle, Asst. Atty. Gen., for respondent.
This is a petition for a writ of habeas corpus by an inmate of the state penitentiary who seeks to be released from imprisonment.
The petitioner was tried in the district court of Shawnee county in January, 1940, on an information charging him with selling unregistered securities and containing six counts. Petitioner was found guilty on five of the counts and acquitted on one count, the second. On February 7, 1940, after the court had overruled petitioner's motion for a new trial, the court passed sentence on petitioner. The crime of which petitioner was convicted is a felony. G.S. 1935, and G.S.1939 Supp 17-1223 et seq. It was made to appear to the court that petitioner had theretofore been twice convicted of felony, which fact is not disputed, and the court applying G.S.1939 Supp. 21-107a sentenced him to seventeen years' imprisonment on the first count and fifteen years on each of the other counts on which he had been convicted. The sentences on the counts after the first count were made to run concurrently with that on the first count. Petitioner appealed to this court, where his conviction was affirmed. State v. Fitzgerald, 152 Kan. 531, 106 P.2d...
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State v. Wood
...21-107a) is construed to allow sentence for life or for any number of years not less than the prescribed minimum. (Following Fitzgerald v. Amrine, 154 Kan. 209, 117 P.2d 582.) 6. A motion for a new trial is unavailing to an accused in a criminal action, when it is based on the ground of new......
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State v. Sanders
...with K.S.A. 21-109 allows a maximum sentence for life or for any number of years not less than the prescribed minimum. (Fitzgerald v. Amrine, 154 Kan. 209, 117 P.2d 582; State v. Wood, 190 Kan. 778, 378 P.2d 536; State v. Akins, 194 Kan. 514, 399 P.2d 848.) This was defendant's third convic......
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Plasters v. Hoffman
...of felony, even without the Miami County judgment. Under the statute (21-107a) and our decisions, see, e. g., Fitzgerald v. Amrine, 154 Kan. 209, 117 P.2d 582; State v. Liebeno, 163 Kan. 421, 183 P.2d 419; Jamison v. Hudspeth, 168 Kan. 565, 566, 213 P.2d 972, two such prior convictons were ......
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State v. Fountaine
...is construed to allow sentence for life or for any number of years not less than the prescribed minimum. Following, Fitzgerald v. Amrine, 154 Kan. 209, 117 P.2d 582. George A. Fountaine, appellant, pro Maurice P. O'Keefe, Jr., County Atty., Atchison, argued the cause, and William M. Ferguso......