Fry v. Hudspeth
| Decision Date | 09 October 1948 |
| Docket Number | 37393. |
| Citation | 165 Kan. 674,197 P.2d 945 |
| Parties | FRY v. HUDSPETH. |
| Court | Kansas Supreme Court |
Rehearing Denied Oct. 16, 1948.
Original proceedings in habeas corpus.
Syllabus by the Court.
The record examined in an action for a writ of habeas corpus, and held, that petitioner is not entitled to the writ.
John E Buehler, of Atchison, for petitioner.
Harold R. Fatzer, Asst. Atty. Gen. (Edward F. Arn, Atty. Gen., on the brief), for respondent.
Carl Fry prepared and filed his own petition for a writ of habeas corpus and his application that counsel be appointed for him so that he might be properly represented in court. The respondent filed a motion that the petition be made more definite in certain particulars and that motion was sustained and petitioner thereupon filed an amended petition, the respondent answered and John E. Buehler, a reputable and competent attorney at law, was appointed to represent the petitioner.
The following facts are not in dispute. In the latter part of 1942 the petitioner had been convicted of the crime of burglary in the second degree and of grand larceny and sentenced to the reformatory at Hutchinson. He was paroled and while on parole was arrested and later tried on an information containing four counts of burglary in the second degree and grand larceny and one count of attempted burglary alleged to have been committed on March 31, 1944. At his trial on September 2, 1944, he was represented by counsel retained for him by his father and entered a plea of guilty to all five counts. The state offered evidence as to the previous conviction. The trial court rendered its judgment sentencing the petitioner to confinement in the state penitentiary under G.S.1935, 21-523 and 21-524, and G.S.1943 Supp. 21-107a, to serve a period of not less that ten years and not more than twenty years on the charge of burglary in the second degree and a period not exceeding ten years on the charges of larceny in the first four counts, the sentences on the charges of larceny to run concurrently with the sentences of burglary, and that he serve a period not exceeding ten years on the charge of attempted burglary, the sentences on the first, second and third counts to run consecutively and the sentences on the fourth and fifth counts to run concurrently therewith.
In discussing the contentions presented we shall take into consideration not only the affidavits filed by the respondent, but the verified petition and amended petition which we shall treat as the petitioner's deposition.
In the petition for the writ it is alleged petitioner was arrested without a warrant and before any charges had been filed against him and his constitutional rights thus invaded. In his brief the contention is stated that when he was arrested the officers had no warrant in their possession giving authority to arrest him for the offenses with which he was later charged, and it is contended that his arrest was illegal and therefore that a revolver and other articles taken from him were illegally obtained. With respect to the arrest without a warrant, it may be doubted that at this time petitioner may raise the question but if so it cannot avail. In Pritchett v. Sullivan, 8 Cir., 182 F. 480, the circuit court of appeals considered the question. Sullivan was arrested without a warrant in Junction City, Kansas, and later sued Pritchett for false imprisonment and malicious prosecution in the United States District Court of Kansas. He obtained judgment in the district court, which was reversed on appeal. Reference is made to the opinion for the facts and for a review of authorities resulting in the holding that:
'Under the rule of the common law, in force in states where not changed by statute, public officers specially charged with the enforcement of the laws and the preservation of the peace may lawfully arrest without a warrant and without view of the crime, when they have reasonable ground for believing that a felony has been committed.' (Syl. ¶1.)
See also State v. Mowry, 37 Kan. 369, 15 P. 282. The rule of the common law relating to arrests has not been changed by any statute to which our attention is directed, and it has not been made to appear that the manner of petitioner's arrest invaded his constitutional rights. Insofar as his complaint that his rights were invaded because of the revolver and other property, it needs only to be remarked that petitioner pleaded guilty and no evidence was necessary or introduced. Petitioner is not entitled to his release on either of the matters just discussed.
Petitioner contends he was denied constitutional rights because counsel was not appointed for him at his preliminary hearing. He does not contend that he asked for counsel and was refused. There is no statutory provision that counsel must be appointed for him at a preliminary hearing. It has been held that a preliminary examination in a felony case is not a trial in the sense that word is ordinarily used (see State v Badders, 141 Kan. 683, 42 P.2d 943) and that in the absence of a statute requiring appointment of counsel upon preliminary examination, his right is not invaded. See 22 C.J.S., Criminal Law, § 339, page 498; Roberts v. State, 145 Neb. 658, 17 N.W.2d 666...
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State v. Richardson
...proceeding, and it has been held many times that failure to appoint counsel at a preliminary examination is not error. (Fry v. Hudspeth, 165 Kan. 674, 676, 197 P.2d 945; Martin v. Edmondson, 176 Kan. 374, 270 P.2d 791; State v. Crowe, 190 Kan. 658, 378 P.2d 89, and State v. Naillieux, 192 K......
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...to the offense and not the sentence. (State v. Hacker (Mo.1948), 214 S.W.2d 413; State v. Nolan (Mo.1958), 316 S.W.2d 630; Fry v. Hudspeth, 165 Kan. 674, 197 P.2d 945.) See, also, Martin v. Amrine, 156 Kan. 384, 133 P.2d 582. In his 60-1507 motion petitioner attacks Instruction No. 9, which......
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