State v. Badders
| Decision Date | 06 April 1935 |
| Docket Number | 32145. |
| Citation | 141 Kan. 683,42 P.2d 943 |
| Parties | STATE v. BADDERS. [*] |
| Court | Kansas Supreme Court |
Syllabus by the Court.
Continuance of preliminary examination before magistrate is within magistrate's discretion; statute providing for continuance on filing of affidavit being applicable only to civil actions (Rev. St. 1923, 61--802, 62--611).
Preliminary examination in criminal case is not "trial" in sense that word is ordinarily used, nor within statute pertaining to matter of change of venue in trials of civil or criminal actions.
In prosecution for crime against nature, testimony that offense had been committed with witnesses at different times and on some occasions outside of state held competent to show offenses of the same kind and to show habit, motive, and practice (Rev. St. 1923, 21--907).
In prosecution for crime against nature, testimony that defendant had not committed offense with witnesses although he was with them under circumstances such as it might have been done held properly excluded (Rev. St. 1923, 21--907).
Where testimony of defendant's witnesses tended to show that defendant was insane at time of trial, court properly stopped trial and appointed commission to examine defendant and determine whether he was sane, and properly proceeded with trial on finding of commission that he was sane (Rev. St 1923, 62--1531).
1. In the trial of one charged with the violation of R. S. 21--907 the record is examined and it is held that the court did not err in overruling a motion to quash the information, nor in sustaining a demurrer to defendant's plea in abatement nor in the admission or rejection of evidence.
2. In the trial of one charged with crime, the testimony of a witness called by defendant tended to show defendant to be insane at the time of the trial. Held it was proper for the court to stop the trial and appoint a commission to examine defendant and determine whether he was sane, and upon a finding of the commission that he was sane to proceed with the trial.
Appeal from District Court, Shawnee County, Division No. 1; George A. Kline, Judge.
George S. Badders was convicted of a crime against nature, and he appeals.
A. D Weiskirch, Jr., of Topeka, for appellant.
Clarence V. Beck, Atty. Gen., Earl B. Swarner, Asst. Atty. Gen., Forrest D. Smythe and Morton Cole, Sp. Asst. Attys. Gen., and Lester Goodell, Co. Atty., of Topeka, for the State.
Appellant was charged with the violation of R. S. 21--907. The information charged the offense in the general language of the statute, and, in addition thereto, alleged the specific manner in which the act complained of was performed. It contained four counts charging defendant with the offense committed with four young men, two of high school age, two a little older. The trial resulted in a verdict of guilty on each count. Because of a previous conviction and penal servitude, he was sentenced to terms in the penitentiary twice as long as the statute provides for the offense if there had been no such previous conviction. Three of the sentences were made to run consecutively, the fourth to run concurrently with the others. He has appealed.
Appellant contends his motion to quash should have been sustained on the ground the act described in the information is not an offense under the statute. That specific question was presented to this court in State v. Hurlbert, 118 Kan. 362, 234 P. 945. Indeed, it was the only question presented. The court thoroughly considered the question and decided it adverse to appellant's contention. The court noted some division of authority, but deemed its conclusion in harmony with the weight of authority and with the better reasoning. The article, since published in 58 C. J. 786 et seq., with citations, confirms that conclusion. There is no reason to change our former holding.
Appellant contends the court erred in sustaining a demurrer to his plea in abatement, predicated upon the ground that he had no legal preliminary examination and that he had not waived it, nor was he a fugitive from justice. The record discloses he had a preliminary examination at which all witnesses were sworn and testified which either party desired to call, at the close of which he was duly bound over for trial in the district court. But appellant contends the preliminary examination was unlawful, for the reason: (1) That the magistrate refused his application for a fifteen days' continuance after he had filed the affidavit provided by R. S. 61--802. This section pertains to continuances in civil actions before a justice of the peace. It has no application to continuances of preliminary examinations before a magistrate. That is governed by R. S. 62--611. This leaves the matter of continuance within the discretion of the magistrate (16 C. J 322) with the exception that the continuance cannot be longer than for ten days over defendant's objection. (2) That the magistrate overruled his application for a change of venue. That consisted of defendant's affidavit that he thought the magistrate prejudiced against him. The affidavit contained no facts which would have justified the change of the hearing to another magistrate, even if the statute provided for such a change; but it does not. We are cited to no statute, and our own research discloses none, providing for any change of venue in the hearing of a preliminary examination in a felony case. Appellant argues that such a hearing is a trial, and hence that the matter of change of venue should be governed by the rules pertaining to trials of civil or criminal actions. The point is not well taken. The preliminary examination in a felony case is not a trial in the sense that word ordinarily is used. 16 C. J. 313, 323. It is purely statutory, since it was unknown at common law. 16 C. J. 314. It is not judicial, and authority to conduct such examination may be vested in persons other than courts (16 C. J. 319), such as...
To continue reading
Request your trial
-
State v. Latham
...examination they were entitled to under our statute (G.S. 1949, 62-1531) and which was required under the circumstances (State v. Badders, 141 Kan. 683, 686, 42 P.2d 943). The question of their lack of mental capacity at the time of the alleged commission of the crime, is to be determined b......
-
State v. Richardson
...the first place, under the laws of Kansas a preliminary examination is not a 'trial' in the ordinary sense of the word. (State v. Badders, 141 Kan. 683, 42 P.2d 943.) The purpose of a preliminary examination for one charged with a felony is to determine whether an offense has been committed......
-
State v. Jones, 44964
...We think the district court did not err. The statements were not official documents, nor a part of any court record. In State v. Badders, 141 Kan. 683, 42 P.2d 943, it was said: '* * * the county attorney refused to deliver to defendant for inspection written statements made by the four you......
-
State v. Oswald
...which the prosecution designs to use in the prosecution of others. (State v. Jeffries, 117 Kan. 742, 232 P. 873; State v. Badders, 141 Kan. 683, 42 P.2d 943.) The granting or refusal of the accused's request for the production or inspection of a writing for purposes of cross examining the w......