Ramsey v. Hand, 40857
| Decision Date | 07 July 1958 |
| Docket Number | No. 40857,40857 |
| Citation | 183 Kan. 307,327 P.2d 1080 |
| Parties | Roy RAMSEY, Appellant, v. Tracy HAND, Warden, Kansas State Penitentiary, Lansing, Kansas, Appellee. |
| Court | Kansas Supreme Court |
Syllabus by the Court
The record examined in an appeal from the trial court's denial of a writ of habeas corpus, and it is held, the trial court did not err in denying the writ.
Appellant was on the briefs pro se.
Charles N. Henson, Jr., Asst. Atty. Gen., argued the cause, and John Anderson, Jr., Atty. Gen., was with him on the briefs, for appellee.
This is an appeal from the judgment of the trial court denying petitioner's application for a writ of habeas corpus and remanding petitioner to the custody of respondent.
The petitioner contended in the court below that he is being unlawfully restrained, held in involuntary servitude and deprived of his liberty because 'of case records denying * * * equal protection * * * and * * * due process of law' under Kansas statutes and the fourteenth amendment of the constitution of the United States. The records referred to are in case No. 3443 (State of Kansas v. Roy Ramsey) issued by the district court of Crawford county, sitting at Pittsburg. Petitioner seeks immediate release.
Respondent in his answer and return generally denied the allegations of the petition. He admitted petitioner's confinement in the state penitentiary but denied that it violated the state statutes or constitution, or the constitution of the United States. The answer further alleged: The confinement was pursuant to a conviction of first degree murder and sentence to life imprisonment by the Crawford county district court on October 16, 1948; petitioner had entered a plea of guilty to first degree murder; that after being offered appointment of counsel, he had executed a waiver before the clerk of that court stating that he did not wish counsel appointed; that petitioner is further restrained, pursuant to a conviction on October 25, 1948, of first degree burglary and grand larceny and a sentence by the Douglas county district court, which is to run concurrently with that of the Crawford county district court, wherein petitioner, who was represented by court-appointed counsel, waived any right to a preliminary hearing, waived arraignment, and entered a plea of guilty to the charges of first degree burglary and grand larceny. Neither of the sentences has expired or been commuted by the governor and petitioner is not entitled to be released from confinement. The informations, journal entries, and commitments were attached to the return.
While the information forwarded to the record clerk at the penitentiary did not contain the names of witnesses for the state, the clerk of the Crawford county district court made an affidavit that the names of five witnesses for the state were on the information filed therein.
At a hearing where petitioner was present and the state was represented by an assistant attorney general, the petitioner introduced evidence and at the conclusion thereof the trial court dissolved the theretofore issued writ of habeas corpus and remanded petitioner to the custody of respondent. Hence this appeal by petitioner.
On February 22, 1958, a nunc pro tunc order was entered by the Crawford county district court showing that through an oversight or omission certain findings were omitted from the original journal entry wherein the court found that it would not have been to petitioner's advantage to have had court-appointed counsel over his objection, pursuant to G.S.1949, 62-1304. The original journal entry was corrected by the following being inserted therein and made a part thereof:
'The Court also finds that the appointment of counsel by the court over defendant Roy Ramsey's written waiver and objection would not be to his, the said Roy Ramsey's advantage.
Petitioner first complains that the information could not be filed and the trial court did not possess jurisdiction to accept the plea or impose sentence because he had not been afforded a preliminary hearing but the record shows that a complaint and warrant were filed in the city court of Pittsburg and that on October 16, 1948, petitioner in open court waived preliminary hearing and was resultingly ordered held for trial in the district court. When this record was filed in the district court, petitioner could not then, and certainly cannot now, be heard to contend that he had not been afforded a preliminary hearing. State v. Myers, 54 Kan. 206, 38 P. 296; State v. Bland, 120 Kan. 754, 244 P. 860; State v. Aspinwall, 173 Kan. 699, 252 P.2d 841; Plasters v. Hoffman,...
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...See: Patterson v. Smith, 227 Ga. 170, 179 S.E.2d 247 (1971); Wright v. Bennett, 257 Iowa 61, 131 N.W.2d 455 (1964); Ramsey v. Hand, 183 Kan. 307, 327 P.2d 1080 (1958); People ex rel. O'Dell v. Bannan, 365 Mich. 429, 113 N.W.2d 220 (1962); Petition of Evans, 147 Mont. 429, 413 P.2d 699 (1966......
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