Smith v. Amrine
| Decision Date | 06 March 1943 |
| Docket Number | 35683. |
| Parties | SMITH v. AMRINE, Warden. |
| Court | Kansas Supreme Court |
Rehearing Denied April 1, 1943.
Syllabus by the Court.
Imprisonment was not illegal because journal entry of judgment sentencing and committing prisoner to the penitentiary was not signed by the judge who presided at the trial. Gen.St.1935, 62-1516.
The alleged fact that prisoner was held incommunicado in penitentiary for two weeks before murder prosecution would not warrant prisoner's release from penitentiary on habeas corpus after murder conviction.
In habeas corpus proceeding by one imprisoned in penitentiary for murder, allegation that prisoner never shot anyone raised no issue, since the guilt or innocence of one accused of crime or convicted of a crime, is not justiciable in habeas corpus.
Sheriff was justified in holding murder suspect for two weeks in the penitentiary because of possible danger of mob violence. Gen.St.1935, 21-1007.
The Supreme Court took judicial notice of the long and honorable professional careers of deceased county attorney and trial judge as lawyers and public servants, and presumed that they faithfully discharged their duty in seeing that petitioner for habeas corpus had fair trial in murder prosecution.
In habeas corpus proceeding for release from penitentiary by prisoner serving life sentence for murder evidence was insufficient to sustain allegations of prisoner that he was denied the assistance of counsel in murder prosecution, that he was intimidated into pleading guilty, and that there was haste and want of deliberation in murder prosecution.
1. In an application for an original writ of habeas corpus, the pleadings and evidence examined and held: a. The omission of the trial judge's signature to the journal entry of judgment of conviction and sentence in a criminal case does not affect or impair its validity. b. The strict accountability imposed on a sheriff to protect his prisoner from danger of mob violence is quite sufficient to justify him in taking the prisoner to some distant county jail or to the penitentiary for safekeeping until any possible danger of mob violence has passed in the county where the crime was committed and where he must be brought to trial.
2. The allegations in the application for a writ of habeas corpus that the petitioner was denied the assistance of counsel that he was intimidated into pleading guilty, and that there was haste and want of deliberation in the court proceedings which culminated in the judgment and sentence imposed on him for murder in the first degree, and the evidence adduced in support thereof and in opposition thereto including the evidential circumstances, considered, and held that the material allegations of the application are not sustained.
Original proceeding in the matter of the application of Frank Smith petitioner, for a writ of habeas corpus for release from the custody of Milton F. Amrine, Warden of the Kansas State Penitentiary, respondent.
Writ denied, and petitioner remanded to warden's custody.
Eldon Sloan, of Topeka, for petitioner.
Shelley Graybill, Asst. Atty. Gen. (Jay S. Parker, Atty. Gen., and Jay Kyle, Asst. Atty. Gen., on the brief), for respondent.
This is an application for a writ of habeas corpus by Frank Smith, a prisoner who for the past twenty-two years has been and still is serving a sentence of life imprisonment for the murder of Frank Forney of Sumner county committed in 1921.
The petitioner alleges that his imprisonment is illegal on the following grounds:
1. That the journal entry of judgment sentencing and committing him to the penitentiary was not signed by the judge who presided at his trial.
2. That he had no assistance from counsel.
3. That he was continuously threatened with mob violence.
4. That he was held incommunicado for two weeks in the penitentiary.
5. That he was a poor indigent person travelling through the country, and when arrested he was told by officer that a mob was going to take him and was rushed to the penitentiary for safe-keeping.
6. That he never carried a gun except when he was in the army therefore he never shot anyone.
7. That he was coerced, disparaged, and denied the right to consult with counselor or friends.
8. That he was rushed from the penitentiary to the district court of Sumner county, and taken before the bar, no charge having been read to him, and that the sheriff meanwhile threatened to let the mob have him.
9. That he did not know what to do and could have done nothing if he had known.
10. That he was taken into the court room and taken right out "never uttering a word, guilty or innocent," and taken from the court room to the penitentiary where he has ever since been illegally confined without redress.
11. That through fear of mob violence petitioner "was forced to accept the judgment of the Sumner county district court."
On receipt of the application summarized above, this court ordered that it be filed without deposit for costs; the warden was given 30 days to plead, and the clerk was directed to notify the attorney-general. In due time an answer and return was filed by the attorney-general in behalf of the warden. It contained a general denial and pleaded that the petitioner was lawfully held in the custody of the respondent warden of the state penitentiary by virtue of a valid judgment and sentence of the district court of Sumner county, which sentence has not expired. Attached to the warden's answer was a certified copy of the information charging the petitioner with the murder of Frank Forney by shooting him with a revolver in Sumner county on May 19, 1921; likewise a certified copy of the journal entry of judgment and sentence, the material portion of which reads:
Also attached to the answer was a certified copy of the formal commitment, and a copy of the transcript of the record supplied to the warden by the Federal Bureau of Investigation, the full contents of which are of no present concern unless it is the concluding entry which reads:
On motion of petitioner for the appointment of counsel to represent the petitioner the court named Hon. Eldon R. Sloan of Topeka to undertake that duty. Judge Sloan with the consent of his client agreed with counsel for the warden that affidavits may be used as evidence on whatever material issues of fact inhere in the proceedings, as sanctioned by the civil code (G.S. 1935, 60-2830, 60-2835), and...
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...L.Ed. 559; Merideth v. Amrine, 155 Kan. 7, 122 P.2d 759, certiorari denied 316 U.S. 670, 62 S.Ct. 1047, 86 L.Ed. 1745; Smith v. Amrine, 156 Kan. 486, 489, 134 P.2d 400; Downs v. Hudspeth, 162 Kan. 575, 178 P.2d For what is probably our most recent case, dealing with the foregoing subject, s......
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