McCary v. State of Kansas, 6352.

Decision Date16 June 1960
Docket NumberNo. 6352.,6352.
Citation281 F.2d 185
PartiesWalter S. McCARY, Appellant, v. STATE OF KANSAS et al., Appellees.
CourtU.S. Court of Appeals — Tenth Circuit

Benjamin L. Craig, Denver, Colo., for appellant.

John Anderson, Jr., Atty. Gen., and J. Richard Foth, Asst. Atty. Gen., for appellees.

Before MURRAH, Chief Judge, and PHILLIPS and BREITENSTEIN, Circuit Judges.

PER CURIAM.

McCary was confined in the Kansas State Penitentiary under a sentence imposed by the District Court of Montgomery County, Kansas, following his conviction in that court of an offense under the law of Kansas. He brought a habeas corpus proceeding in the United States District Court for the District of Kansas, seeking discharge on the ground that he had been denied a speedy trial. From an order discharging the writ, McCary has appealed.

The facts, with one exception to which we shall refer later, are not in dispute.

On January 10, 1957, McCary was confined in the County Jail of Ford County, Kansas, awaiting trial on an information charging an offense against the laws of Kansas. While so confined, he was served on that date with a warrant issued on the information on which he was later convicted in the District Court of Montgomery County, Kansas. He was tried and convicted on the Ford County charge on January 11, 1957, and on January 21, 1957, he was sentenced to confinement in the Kansas State Penitentiary.

The United States filed a detainer against McCary with the Kansas State Penitentiary authorities on a charge of violation of the Dyer Act, 18 U.S.C.A. §§ 2311-2313. McCary received notice of such detainer on April 4, 1957. On April 29, 1957, following his conviction of a federal offense in the United States District Court for the District of Kansas, McCary was sentenced to the custody of the Attorney General of the United States for a term of one year and one day, such sentence to commence at the expiration of the sentence he was then serving in the State Penitentiary on the Ford County conviction. On February 15, 1958, McCary was released on parole from the State Penitentiary and was thereupon taken into custody by the United States Marshal and delivered to the custody of the Warden of the United States Penitentiary at Leavenworth, Kansas, to serve the federal sentence. The authorities of Montgomery County, Kansas, filed a detainer against McCary with the United States Penitentiary authorities on the charge pending against him in Montgomery County. McCary was notified of such detainer on February 21, 1958. On March 26, 1958, McCary forwarded to the Clerk of the District Court of Montgomery County, Kansas, a motion demanding a speedy trial. Such motion was duly received by the clerk of the state court. On July 23, 1958, McCary filed with the Clerk of the District Court of Montgomery County, Kansas, a motion to quash and dismiss the warrant of January 10, 1957. On December 4, 1958, McCary was released from the Federal Penitentiary and was taken into custody by the Sheriff of Montgomery County, Kansas. On January 3, 1959, he was tried on the Montgomery County charge and on February 10, 1959, following his conviction, he was sentenced on that charge to confinement in the State Penitentiary for a term of three and one-third years. On August 31, 1959, he filed his petition for a writ of habeas corpus in the instant case.

In his brief petitioner asserts that following his motion demanding a speedy trial he forwarded a letter to the Attorney General of the United States requesting permission for Montgomery County, Kansas, to take him into custody and try him on the charge pending against him in that court and that an order granting such permission to Montgomery County, Kansas, was forwarded to the Warden of the United States Penitentiary at Leavenworth, Kansas, and...

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18 cases
  • Richerson v. State
    • United States
    • Idaho Supreme Court
    • April 21, 1967
    ...right to a speedy trial. Other authorities that have reached the same conclusion as Ex parte Schechtel, supra, are: McCary v. State of Kansas, 281 F.2d 185 (10th Cir., 1960), cert. denied 364 U.S. 850, 81 S.Ct. 94, 5 L.Ed.2d 73; Accardo v. State, 39 Ala.App. 453, 102 So.2d 913 (1958); Ex pa......
  • Com. v. McGrath
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • April 5, 1965
    ...A.2d 493. State ex rel. Fredenberg v. Byrne, 20 Wis.2d 504, 123 N.W.2d 305. 3 But other courts have held the contrary. McCary v. State of Kansas, 281 F.2d 185 (10th Cir.), cert. den. 364 U.S. 850, 81 S.Ct. 94, 5 L.Ed.2d 73; Accardo v. State, 39 Ala.App. 453, 102 So.2d 913, cert. stricken 26......
  • Lawrence v. Blackwell
    • United States
    • U.S. District Court — Northern District of Georgia
    • March 31, 1969
    ...before affording him a trial on pending state charges. Henderson v. Circuit Court, 392 F.2d 551 (5th Cir., 1968); McCary v. Kansas, 281 F.2d 185 (10th Cir., 1960), cert. denied, 364 U.S. 850, 81 S.Ct. 94, 5 L.Ed.2d 73 (1960). As recently as January 23, 1969, the Fifth Circuit held that: "Ap......
  • Cooper v. State, A-11109
    • United States
    • Texas Supreme Court
    • March 16, 1966
    ...the state indictment.' This distinction was again clearly pointed out by an eminent panel of judges of the Tenth Circuit in McCary v. State of Kansas, 281 F.2d 185 (1960, cert. denied, 364 U.S. 850, 81 S.Ct. 94, 5 L.Ed.2d 73), wherein it was 'It is well settled that the failure of a state t......
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