Lawton v. Hand
| Decision Date | 05 March 1960 |
| Docket Number | No. 41774,41774 |
| Citation | 186 Kan. 385,350 P.2d 28 |
| Parties | Virgil Gail LAWTON, Petitioner, v. Tracy A. HAND, Warden, Kansas State Penitentiary, Lansing, Kansas, Respondent. |
| Court | Kansas Supreme Court |
Syllabus by the Court.
The record in an original proceeding in habeas corpus examined and it is held: The petitioner having failed to affirmatively show any legal ground for his release from the Kansas State Penitentiary, the writ is denied.
Virgil Gail Lawton, petitioner, was on the briefs pro se.
J. Richard Foth, Asst. Atty. Gen., argued the cause, and John Anderson, Jr., Atty. Gen., was with him on the briefs, for respondent.
In this original habeas corpus proceeding the petitioner, Virgil Gail Lawton, seeks release from the Kansas State Penitentiary where he is presently confined.
On March 20, 1959, the petitioner was about to be arraigned in the district court of Montgomery County, Kansas, on an information charging him with feloniously having a pistol in his possession and under his control after having previously been convicted in this state of the unlawful possession of cannabis sativa, commonly known as marijuana, as that offense is defined in G.S.1957 Supp. 21-2611. He appeared without counsel, and in compliance with G.S.1957 Supp. 62-1304 the district court appointed Frank Liebert, an attorney duly admitted to practice law in this state and a member of the Montgomery County Bar, to represent him. Petitioner was arraigned and entered a plea of not guilty and the matter was continued to the April 1959 term for trial.
On April 3, 1959, petitioner appeared before the district court with his attorney, withdrew his plea of not guilty and entered a plea of guilty to the offense as alleged in the information. He was thereupon sentenced to confinement in the Kansas State Penitentiary for an indefinite term with a minimum of twenty months pursuant to G.S.1957 Supp. 62-2239.
We find it unnecessary to detail the allegations of the petition for a writ of habeas corpus, but an examination shows that the essence of the petitioner's complaint is that on February 21, 1959, he was sentenced in the police court of the city of Coffeyville to fifteen days in the city jail for carrying a concealed weapon in violation of an ordinance of that city. He alleges that since the weapon was the same pistol which formed the basis for his present felony conviction and confinement in the penitentiary, he was subjected to double jeopardy.
His second complaint is that under G.S.1957 Supp. 21-2611, possession of a pistol is made an offense only after the accused has been previously convicted of a felony; that his only prior conviction was that of possession of marijuana which was a misdemeanor (Lawton v. Hand, 183 Kan. 694, 331 P.2d 886), hence, no public offense was alleged in the information and he is illegally confined in the penitentiary.
We think there are several reasons which require a denial of a writ of habeas corpus. In the first place, petitioner does not deny that, prior to his present conviction, he was convicted of the unlawful possession of cannabis sativa, commonly known as marijuana. His contention is that his conviction of that offense was only a misdemeanor (as determined in the Lawton case, supra) and that G.S.1957 Supp. 21-2611 makes possession of a pistol an offense only by persons who have previously been convicted of a felony.
The statute in question (G.S.1957 Supp. 21-2611) was enacted as Section 2 of Chapter 197, Laws of 1955. The title reads:
'An Act relating to weapons; making it unlawful for certain persons to own, possess or have a pistol under their control; providing for the seizure and disposal of pistols and other weapons in certain cases; and prescribing penalties for violations of the act.'
The section reads:
(Emphasis supplied.)
We find nothing in the title to indicate the restrictive effect ascribed to the act by the petitioner. The act clearly makes it unlawful for any person to own or possess a pistol after having been convicted of certain specified offenses, among them the unlawful possession of cannabis sativa, commonly known as marijuana. The offenses are listed by name with no distinction drawn between those defined as felonies and those defined as misdemeanors except in the phrase 'or any other felonious assault.' While most of the offenses listed are felonies, that fact would not preclude the legislature from also including in the offenses enumerated, the unlawful possession or distribution of canabis sativa, commonly known as marijuana, which is a misdemeanor (Lawton v. Hand, supra), since all crimes in this state are statutory (State v. Koontz, 124 Kan. 216, 218, 257 P....
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Bell v. State of Kansas
...state court case, which was not required to be proved to establish the offense charged in the municipal court case. See Lawton v. Hand, 186 Kan. 385, 388, 350 P.2d 28, 31. The facts in Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469, upon which Bell relies, were very unusual. I......
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Cox v. State
...is raised as a defense it is abandoned by a subsequent plea of guilty. (State v. Carte, 157 Kan. 673, 143 P.2d 774.) In Lawton v. Hand, 186 Kan. 385, 350 P.2d 28, we held that a claim of double jeopardy was not available in habeas corpus if a plea of guilty had been entered in the criminal ......
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State v. Jackson
...State v. Sexton, 232 Kan. 539, 542-43, 657 P.2d 43 (1983); State v. Minor, 197 Kan. 296, 416 P.2d 724 (1966); Lawton v. Hand, 186 Kan. 385, 387, 350 P.2d 28 (1960); State v. Gloyd, 148 Kan. 706, 709, 84 P.2d 966 (1938); State, ex rel., v. Basham, 146 Kan. 181, 186, 70 P.2d 24 (1937); State ......
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State v. Torline, 47376
...163 Kan. 30, 180 P.2d 315; Wagner v. Edmondson, 178 Kan. 554, 290 P.2d 98; State v. Brown, 181 Kan. 375, 312 P.2d 832; Lawton v. Hand, 186 Kan. 385, 350 P.2d 28; State v. Gauger, 200 Kan. 515, 438 P.2d 455; Coverly v. State, 208 Kan. 670, 493 P.2d 261; Cox v. State, 208 Kan. 190, 490 P.2d 3......