Nicolay v. Kill

Citation161 Kan. 667,170 P.2d 823
Decision Date06 July 1946
Docket Number36675.
PartiesNICOLAY v. KILL, Sheriff.
CourtUnited States State Supreme Court of Kansas

Syllabus by the Court

1. The word 'application' for continuance as used in G.S.1935, 62-1431 signifies a means to the accomplishment of an end. It denotes affirmative action, not passive submission. Mere failure of a prisoner to object to the state's application for a continuance is not the equivalent of consent to such application.

2. The record in an original proceeding in habeas corpus examined considered and held: (a) Respondent's motion to dismiss the petition for a writ on the ground of res judicata is denied; (b) on consideration of an original proceeding in habeas corpus this court is not concerned with alleged improper procedure pursued by the petitioner to obtain his release in another court; and (c) upon the record properly before this court the petitioner, committed to prison by reason of inability to make bail, is entitled to release for failure of the state to bring him to trial within the time prescribed by G.S.1935, 62-1431.

Edward Rooney, of Topeka (Jacob A. Dickinson, of Topeka, on the brief), for petitioner.

Robert M. Finely, County Atty., of Hiawatha, for respondent.

WEDELL Justice.

The petitioner contends he is entitled to be released from confinement in the county jail of Brown county by reason of the failure of the state to bring him to trial within the time prescribed by G. S. 1935, 62-1431.

The pertinent averments of the verified petition for the writ are, in substance, as follows:

The petitioner was informed against in the district court of Brown county October 23, 1945; he was charged with grand larceny in two counts, the alleged offenses being the theft of two cows; the petitioner did not make bail and has at all times remained imprisoned and in the custody of the respondent, the sheriff of Brown county; the district court of Brown county has three terms of court annually, the same being the February, May and November terms; the case was not set for trial during the May, 1945 term in which the information was filed; the case was set for trial during the next, or November term, the date set for the trial being December 4, 1945; it was not tried at that term the county attorney's letter addressed to one of the attorneys for petitioner residing in Topeka, dated November 16, 1945, reads: 'The Court, on its own motion, continued the case of State of Kansas versus Oliver Nicolay until the February term.'

Petitioner's counsel at Topeka received a similar letter from his local co-counsel at Hiawatha dated November 26, 1945, which reads: 'In case you have not been so advised, I want to tell you that your cattle theft case has been continued to the February 1946 term of our court. As you know it was set for December 4th, 1945, but the judge decided to release the jury so he continued these cases.'

The petition further, in substance, alleges: The case was not set for trial in the next, or February, 1946, term; on February 12 the state filed an application for a continuance to the May, 1946, term on the ground it was impossible to have a material witness present 'at this time.'

The state's application further recited: 'That your said affiant herein has exercised due diligence in attempting to have the said R. A. Levering present for the trial of the above entitled cause and that on the 5th day of February, 1946, a praecipe for subpoena was filed in the office of the Clerk of the District Court of Brown County, Kansas, and a subpoena was issued and directed to the Sheriff of Shawnee County, Kansas, notifying the said R. A. Levering to be present on the 11th day of February, 1946, at 9:00 A.M. of said day to testify as a witness on behalf of the plaintiff, State of Kansas; that the return of the Sheriff of Shawnee County, Kansas, on the summons issued for the said R. A. Levering bears the endorsement to the effect that Mr. R. A. Levering is visiting in California and will not return for about ten days.' (Our emphasis.)

Exhibits attached to the petition disclose: The petitioner was not arraigned during the May nor November, 1945 terms, he was first arraigned on February 4, the opening day of the February, 1946, term; no objection was made to the state's application for a continuance from the February to the May, 1946, term.

To this petition respondent, the sheriff of Brown county, has filed a motion to dismiss the petition for the writ. The motion, in substance, alleges: The petition involves the same subject matter and parties as a former action filed by the petitioner for a writ in the district court of Brown county; the petitioner was denied his release on May 11, 1946; no appeal has been taken from the judgment and for that reason the petition in this court should be dismissed.

The theory of respondent's motion is the judgment of the district court is res judicata. This court, in harmony with well-established doctrine, has held otherwise. In the recent case of Crebs v. Hudspeth, 160 Kan. 650, loc. cit. 656, 164 P.2d 338, 342, we said: 'At this point we pause to consider respondent's contention that all questions determined in the two decisions from which we have just quoted are res judicata and no longer available as grounds for habeas corpus in the case at bar. We do not believe the rule permits the sustaining of that contention in the broad form in which respondent seeks its application. As we understand it the doctrine of res judicata does not apply in case of refusal to discharge a prisoner on habeas corpus. However, prior adjudications, where a subsequent application is based on the same facts relied on in former proceedings, may be taken into consideration to prevent abuse of the writ and given controlling effect if in the exercise of its discretion such conclusion appears to the court, to which the subsequent application is presented, to be justified after consideration of all facts and circumstances having a material bearing upon the subject. 39 C.J.S. Habeas Corpus, § 105, page 698; 25 Am.Jur. 250 § 156; Wong Doo v. United States, 265 U.S. 239, 44 S.Ct. 524, 68 L.Ed. 999; Salinger v. Loisel, 265 U.S. 224, 44 S.Ct. 519, 68 L.Ed. 989; Slaughter v. Wright, 4 Cir., 135 F.2d 613.' See, also, In re Clark, 208 Mo. 121, 106 S.W. 990, 15 L.R.A.,N.S., 389.

The petitioner in the instant case has been in confinement without trial since October, 1945. The proceeding in this court was instituted May 13, 1946. Since respondent filed his motion to dismiss the petition for the writ in this court the petitioner has also perfected an appeal from the judgment of the district court. The procedure on appeal may entail considerable delay. Proceedings in habeas corpus are designed to insure prompt action for a citizen who believes he is unlawfully deprived of his liberty. For that reason, among others, our constitution grants original jurisdiction in habeas corpus proceedings to the Supreme Court. (...

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10 cases
  • Barber v. Gladden
    • United States
    • Supreme Court of Oregon
    • December 3, 1958
    ...224 at page 230, 44 S.Ct. 519, at page 521. A similar position has been taken by a number of state courts. See, e. g., Nicolay v. Kill, 1946, 161 Kan. 667, 170 P.2d 823; State ex rel. Fisher v. Warden of Maryland Penitentiary, 1950, 195 Md. 705, 71 A.2d 871; LaBelle v. Hancock, 1954, 99 N.H......
  • Coffelt v. State, 9936
    • United States
    • United States State Supreme Court of Idaho
    • April 18, 1968
    ...cert. den.377 U.S. 948, 84 S.Ct. 1359, 12 L.Ed.2d 311 (1964); Petition of McGrath, 143 Mont. 498, 392 P.2d 76 (1964); Nicolay v. Kill, 161 Kan. 667, 170 P.2d 823 (1946). Had appellant awaited a decision from Judge Hyatt, and had it been unfavorable he could have appealed to the Supreme Cour......
  • State v. Hess, 40434
    • United States
    • United States State Supreme Court of Kansas
    • December 8, 1956
    ...to by the accused, which, of itself, prevents a speedy trial. (State v. Dewey, 73 Kan. , 739, 741 [85 P. 796, 88 P. 881]; Nicolay v. Kill, 161 Kan. 667, 671 'To be such an application, it need not be in the form of a specific request by the defendant for a postponement; it is sufficient if ......
  • Starkey v. State
    • United States
    • United States State Supreme Court of Idaho
    • June 22, 1966
    ...(1964), Cert. den. 377 U.S. 948, 84 S.Ct. 1359, 12 L.Ed.2d 311; Ex parte Horowitz, 33 Cal.2d 534, 203 P.2d 513 (1949); Nicolay v. Kill, 161 Kan. 667, 170 P.2d 823 (1946). As to lack of counsel at time of interrogation, plaintiff does not allege that any interrogation by police officers took......
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