Kubus v. Swenson, 36423
| Decision Date | 25 June 1954 |
| Docket Number | No. 36423,36423 |
| Citation | 242 Minn. 425,65 N.W.2d 177 |
| Parties | KUBUS v. SWENSON. |
| Court | Minnesota Supreme Court |
Syllabus by the Court.
An information filed approximately four years and three months after commission of a felony other than murder, where the defendant has been absent for four years and two months of that time, satisfies M.S.A. § 628.26 and confers jurisdiction on the sentencing court of the petitioner's person and the subject matter of the crime of which he was convicted. Where a defendant is in custody by virtue of the final judgment of a competent court, he cannot be released on a writ of habeas corpus.
Robert Kubus, pro se.
J. A. A. Burnquist, Atty. Gen., Charles E. Houston, Asst. Atty. Gen., for respondent.
Petitioner appeals from an order of the district court of Washington county denying his petition for a writ of habeas corpus. He contends that the following facts justify an issuance of the writ:
On September 20, 1945, a complaint was filed charging petitioner with a violation of M.S.A. § 622.06 () committed on September 11, 1945. On or about September 13, 1945, he left this state and was continuously absent until his return to Minnesota on or about November 5, 1949. Thereafter, on December 5, 1949, defendant was arraigned upon an information found and filed on said date and subsequently entered a plea of guilty on January 16, 1950.
Petitioner contends that the district court of Hennepin county lacked jurisdiction to sentence him and cites as authority § 628.26, which contains the following provision as to limitations on prosecution for crimes other than murder:
'* * * indictments shall be found and filed in the proper court within three years after the commission of the offense; but the time during which the defendant shall not be an inhabitant of, or usually resident within, this state, shall not constitute any part of the limitation of three years.'
Petitioner maintains that the three-year statute of limitations had run. He attempts to discount the tolling provision of said statute on the ground that, since officials of the state of Minnesota were aware of his whereabouts during all but a few months of the time of his absence from the state, their failure and refusal to extradite him caused the statute to run, and therefore the three-year period had expired some 14 months before his return to the state.
The tolling provision of § 628.26 is clear and unambiguous in providing that the statute shall not run during...
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State v. Sher
...106 Ill.App.3d 918, 62 Ill.Dec. 701, 436 N.E.2d 727 (1982); State v. Houck, 240 Kan. 130, 727 P.2d 460 (1986); Kubus v. Swenson, 242 Minn. 425, 65 N.W.2d 177 (1954); State v. Ansell, 36 Wash.App. 492, 675 P.2d 614 Sher's counsel contends he is not arguing that the tolling provision is uncon......
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State v. Ansell, 5395-III-4
...a statute, the State does not have a duty to bring extradition proceedings when it learns of defendant's whereabouts. Kubus v. Swenson, 242 Minn. 425, 65 N.W.2d 177 (1954). On the other hand, a few courts have held "absence" to mean "absenting" with an intent to conceal one's whereabouts. E......
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State v. Wyman, 44780
...duty, would have been honored. The record does not justify charges of procrastination or dereliction of duty. (See Kubus v. Swenson, 242 Minn. 425, 65 N.W.2d 177; United States v. Hershenson, The defendant cites two cases from foreign jurisdictions, both of which pertain to the statute of l......