In re Edwards

• Decision Date: 09 April 1886
• Citation: 10 P. 539,35 Kan. 99
• Parties: In the matter of the Petition of WILLIAM T. EDWARDS for a writ of Habeas Corpus
• Court: Kansas Supreme Court

10 P. 539

35 Kan. 99

In the matter of the Petition of WILLIAM T. EDWARDS for a writ of Habeas Corpus

Supreme Court of Kansas

April 9, 1886

Original Proceedings in Habeas Corpus.

PETITION for a writ of habeas corpus, filed in this court on February 9, 1886, on behalf of William T. Edwards, who is charged with murder in the first degree in killing one John Wilson, on December 6, 1884. The petition, among other things, shows that on January 2, 1886, the petitioner made a written application to the district court of Sumner county, verified by his oath, to be discharged from custody, and therein alleged, among other things, that the information charging him with the offense of murder in the first degree was filed in the district court of that county on May 4, 1885, one day prior to the commencement of the regular May Term for 1885 of that court; that said May Term was finally adjourned on August 17, 1885, without the petitioner having been brought to trial, and without his having made application for or having consented to a continuance of the action; that the next regular term of that court commenced on September 1 1885, and was finally adjourned on October 3, 1885, without the petitioner having been brought to trial, and without his having applied for or consented to a continuance; that the next and third regular term of that court, after the filing of the information, commenced on November 3, 1885, and continued for the transaction of business up to and inclusive of December 12, 1885, when the court was adjourned to January 2, 1886, (the regular December Term of the district court of Comanche county having intervened, the same commencing on December 15, 1885, and ending during the same month,) without the petitioner having been brought to trial, and without his having applied for or consented to any continuance. Said application further alleged that from and after the commencement of the regular November Term of the district court of Sumner county for 1885, up to and including the date of its adjournment on December 12, 1885, the court had ample time to have fully tried said cause, and that the court actually had ample time to have done so between November 3 1885, and December 12, 1885, as shown by the journal and records thereof.

Upon the hearing of the application for discharge, the court made the following findings of fact:

"That the state of Kansas, by its said attorneys, has on this day and since the filing and presentation of said application of said defendant for the consideration thereof by the court here, announced itself ready to proceed with the trial of said cause upon its merits; but the court further finds that there is not now time, during the period allowed by law, for the trial of said cause upon its merits at the present term, owing to the fact that this is the last day of the week, commonly called Saturday, and that on the next ensuing Tuesday, to wit, the 5th day of January, 1886, the district court of Harper county, in the same (the 19th) judicial district, in the state of Kansas, is required by law to convene in regular term; and further, that the regular panel of the jury for this term of this court were each and all, on the 12th day of December, 1885, excused and discharged, (but without the consent or objection of said defendant, he not being present, either in person or by attorney, but then being on bail to appear before the district court of Cowley county, Kansas, on the first day of the regular December, 1885, term thereof, to answer the charge contained in and by the information filed in this action against him, which had prior thereto, and over and against the protest and objections of said defendant, been erroneously by this court, of its own motion, attempted to be transferred to said last-named court for trial,) from further attendance upon this court for this term; and owing to the further fact that no witnesses have been subpoenaed on behalf of the state to appear and testify at this term in this cause. And the court further finds that on the 12th day of December, 1885, at the present term of this court, the state of Kansas, by its attorney, John A. Murray, county attorney of said Sumner county, filed its motion to have the order of this court changing, or attempting to change, the venue for the trial of this action to the district court of Cowley county, in the 13th judicial district in the state of Kansas, vacated and set aside, to the end that said cause might be remanded to this court for trial, in accordance with the law of the land; and that pending the hearing of said motion, the defendant not being personally present in court, the attorneys who had theretofore appeared for said defendant, and who now appear for him in this court, Messrs. Herrick, George & King, and McDonald & Parker, each and all being personally present, were, each and all, specifically interrogated touching the matter, by the court, and said attorneys, each and all, answered that they did not, nor either or any of them, then appear in this court for or on behalf of said defendant for any purpose whatsoever."

Thereon the court found that the petitioner was not legally entitled to be discharged as by him demanded. The court further ordered the case to be continued for trial at the next regular term of court, and that the petitioner be required to enter into bail in the sum of $ 7,000 for his appearance at said term of the district court to answer the charge alleged against him. Thereupon, the petitioner objected and excepted. On March 3, 1886, the sheriff of Sumner county made return to the writ of habeas corpus issued, that he restrained the petitioner of his liberty and retained him in custody by virtue of a warrant issued out of the district court of Sumner...