Kamen v. Gray, 38044

• Citation: 220 P.2d 160,169 Kan. 664
• Decision Date: 08 July 1950
• Docket Number: No. 38044,38044
• Parties: KAMEN v. GRAY, Sheriff.
• Court: United States State Supreme Court of Kansas

Page 160

220 P.2d 160

169 Kan. 664

KAMEN v. GRAY, Sheriff.

No. 38044.

Supreme Court of Kansas.

July 8, 1950.

Rehearing Denied Aug. 3, 1950.

Syllabus by the Court.

Petitioner was charged with receiving stolen property. In the trial in the district court, after a jury had been empannelled and sworn and evidence of the state was introduced, the defendant moved the court to declare a mistrial because of error and prejudice engendered in the minds of the jury by the admission of certain specified evidence, which motion was overruled. The state then rested its case, and defendant moved the court for a directed verdict of not guilty for the reason that the state had failed to prove the allegations of the information. After some argument on the latter motion, the court on its own motion reversed its former ruling and declared a mistrial on the grounds set forth in defendant's original motion for declaration of a mistrial. On habeas corpus proceedings in this court, it is held: Defendant cannot thereafter plead former jeopardy when placed on trial on an amended information for the same offense, having requested and consented, by his former action, to waiver of his constitutional privilege.

A. D. Weiskirch, of Wichita, Manford Holly, William C. Farmer, and Leonard Levand, also of Wichita, on the briefs, for petitioner.

Eugene G. Coombs, of Wichita, Harold R. Fatzer, Attorney General, C. Harold Hughes, Assistant Attorney General, John Frank, County Attorney, and A. Martin Millard, Deputy County Attorney, Wichita, on the briefs, for respondent.

WERTZ, Justice.

This is an original proceeding in habeas corpus. Lee Kamen, petitioner, seeks to be discharged from the custody of respondent sheriff, by whom he is detained awaiting trial on a criminal charge. He claims that his imprisonment is unlawful and that he is being deprived of his liberty in violation of federal and state constitutions and laws.

The following proceedings were had in the district court of Sedgwick county, prior to institution of these proceedings in habeas corpus. Petitioner, defendant below, was--after a preliminary hearing before the city court of Wichita on May 9, 1949--on January 16, 1950, placed on trial before a jury in the district court of Sedgwick county on a charge of receiving stolen property, having waived arraignment and pleaded not guilty. The state introduced evidence of seven witnesses--the seventh being Detective Reeves of the police department--concerning a police report and alleged changes in the report, which report was offered in evidence, and over defendant's objections, admitted and read to the jury. Defendant again objected to admission of said report and asked the court to declare a mistrial because of prejudice to defendant by its erroneous admission, but was overruled by the court. The state then rested its case and the court called for introduction of the case for the defense, whereupon counsel for the defense asked that the jury be excused while he argued some motions to the court. Before the jury was excused, counsel for the state explained for the record and to the jury the purpose for which the police report in controversy was offered in evidence. The jury having been excused, counsel for defendant moved for a directed verdict of not guilty and discharge of defendant for the reason the state had failed to prove the allegations and averments alleged in the second amended information, which motion was argued by counsel and taken under advisement by the court. Court was recessed, and on reconvening, argument on the motion to dismiss continued for some time, whereupon the court on its own motion ruled that 'I am declaring a mistrial, and that ends the trial of this case. * * * I * * * will require a new information totally. * * * If the defense has any objections?'

Defense Counsel: 'We will even assist them, if they want us to, in the description of the property.'

On inquiry by counsel for the state as to grounds for the declaration of a mistrial, the court said: 'Oh, there is so much prejudicial error went to the jury with respect to Exhibit 12 (the police report) and there are some details of the defendant's complaint that are substantial'.

On March 10, 1950, the state filed a third amended information to which defendant, petitioner herein, filed a motion to quash and a plea in bar on the premise that he cannot be twice put in jeopardy for the same offense. Said motions are pending, dependent upon the outcome of this habeas corpus proceeding.

The question to be determined here is whether defendant was placed in jeopardy in the proceeding before the district court resulting in declaration of a mistrial by the court so as to preclude trial in that court on the third amended information. The contention of the state is that defendant cannot now complain of the court's ruling (declaration of the mistrial) because of his own motion for a mistrial, eventually sustained and resulting in discharge of the jury, and also because defendant failed to object to such ruling and in fact stated 'we will even assist them, if they want us to, in the description of the property'; that the relief sought (discharge in habeas corpus) is therefore not available when petitioner's cause is still pending in the lower court. Petitioner, on the other hand, argues that his motion for mistrial was overruled and no longer before the court and no further motion for declaration of a mistrial in the case was interposed by him; that the defendant was placed in jeopardy when charged with commission of the crime, brought to trial, the jury empannelled and sworn to try the cause, and trial begun before a court of competent jurisdiction upon an information sufficient to sustain a conviction.

G.S.1935, 60-2914 provides: 'The jury may be discharged by the court on account of the sickness of a juror, or other accident or calamity, or other necessity to be found by the court requiring their discharge, or by consent of both parties, or after they have been kept together until it satisfactorily appears that there is no probability of their agreeing.'

Petitioner contends that the court cannot arbitrarily discharge the jury before a verdict is returned and a discharge in such case, unless for an absolute necessity or for a reason provided by statute, will operate as an acquittal providing defendant has not waived his right to claim double jeopardy and has not joined the state in requesting a mistrial.

It is true that the discharge of a jury after the trial has begun without an overruling necessity or without the consent of the defendant will ordinarily operate as a bar to further prosecution. State v. McKinney, 76 Kan. 419, 91 P. 1068; In re Rockwood, 146 Kan. 386, 69 P.2d 703, and cases cited therein. However, the record in the instant case discloses that the defendant requested the court to order the mistrial. After Exhibit 12 had been offered and received in evidence, the defendant interposed an objection the pertinent part of which reads: '* * * we now ask the Court to declare a mistrial of this case on account of the error and prejudice that has been engendered in the minds of the jury by the reading of the report of this case by the detective and police officers, * * * for the reason it is wholly incompetent * * * and it contains hearsay of the rankest sort * * * all of which is highly prejudicial and altogether incompetent, and we ask that you declare a mistrial at this time.'

During argument on defendant's motion for a directed verdict of not guilty, the court stated: 'I am declaring a mistrial, and that ends the trial of this case'. When questioned by counsel for the state as to the reason for the court's ruling, the court stated among other things: 'Oh, there is so much prejudicial error went to the jury with respect to Exhibit 12 * * *'.

It will be noted that the reason given by the court was the basis of the defendant's earlier request for a mistrial. It is well settled that if a jury is discharged at the instance of a defendant himself, he cannot set up that fact as a bar to a subsequent prosecution. State v. McKinney, supra; State v. Arnold, 142 Kan. 589, 50 P.2d 1008. Defendant argues that the court had previously overruled his request for a mistrial and no further request was made by him or the state and that his motion for a directed verdict of not guilty was pending before the court. His former objection to proceeding further in the case on account of the error and prejudice engendered in the minds of the jury by the reading of the police report was the very ground on which the court based its later declaration of a mistrial. The discharge of the jury was the necessary result of sustaining defendant's request and he has no right to complain that the court took the action which he had requested and to which no objection was made; his actions amounted to a consent.

The above rule was followed in the case of State v. Arnold, supra, in which the defendant was charged under a forgery statute. Defendant was tried and at the close of the states evidence moved for a directed verdict of not guilty because the state had failed to prove an offense charged or any offense. The court overruled that motion but...