State v. Barry, 41115

• Decision Date: 06 December 1958
• Docket Number: No. 41115,41115
• Citation: 332 P.2d 549,183 Kan. 792
• Parties: STATE of Kansas, Appellee, v. Vern Henry BARRY, Appellant.
• Court: Kansas Supreme Court

Page 549

332 P.2d 549

183 Kan. 792

STATE of Kansas, Appellee, v. Vern Henry BARRY, Appellant.

No. 41115.

Supreme Court of Kansas.

Dec. 6, 1958.

Syllabus by the Court

1. Action of a county court in failing to affix its seal to the original complaint and warrant in a criminal action is waived by a defendant when, without having objected thereto, he gives a bond for appearance in the county court and/or furnishes a bond for appeal to the district court.

2. On appeal to the district court from a judgment of the county court the provisions of G.S.1949, 63-401, applicable by reason of G.S.1949, 20-808, require the judge of the county court to certify his return of the proceedings had before him to the district court.

3. When no return is shown on the warrant, issued out of the county court in a criminal action, that defect is waived by the defendant when he voluntarily gives a bond for appearance and/or furnishes a bond for appeal to the district court.

4. Following State v. Belisle, 164 Kan. 171, 188 P.2d 642, it is held (1) that when a defendant appeals to the district court pursuant to G.S.1949, 63-401, from a conviction in the lower court, it is not essential that a separate certificate of the court be placed on the complaint and each of the instruments designated in such statute; (2) that the general certificate in the case at bar (a) was sufficient for the purpose of showing that the defendant was being tried in the district court upon the original complaint filed against him, and (b) gave the district court power and authority to hear and determine the appeal from the county court.

5. Chapters 61 and 279, Laws of 1955 (now G.S.1957 Supp. 8-1001 to 8-1007, incl.), construed, and held, that provisions thereof authorizing the giving of chemical tests therein set forth, absent refusal to submit thereto, are not mandatory or prerequisite to a criminal prosecution for, and valid conviction of, the offense of driving a motor vehicle while under the influence of intoxicating liquors, contrary to the provisions of G.S.1949, 8-530.

6. The record in an action of the character described in the preceding paragraph of this syllabus examined, and held, to disclose no error warranting a reversal of the judgment.

Norbert R. Dreiling, Hays, argued the cause and was on the briefs for appellant.

Simon Roth, Jr., County Attorney, Hays, argued the cause, and John Anderson, Jr., Atty. Gen., was with him on the briefs for appellee.

PARKER, Chief Justice.

Vern Henry Barry was convicted in the county court of Ellis County of the criminal offense, a misdemeanor, of operating a motor vehicle while under the influence of intoxicating liquor, contrary to the provisions of G.S.1949, 8-530. He appealed to the district court of Ellis County where he was tried by a jury and again found guilty. The appeal is from the judgment of conviction and sentence imposed by the district court following the verdict.

The general facts, regarded as essential to a proper understanding of the case, will be related in accord with our view of their import as briefly as the state of the record permits. Others important to a determination of the particular issues involved will be referred to in disposing of such issues and stated in like manner.

A complaint charging appellant with the commission of the involved offense was filed in the county court of Ellis County of May 7, 1957, and a warrant directing his arrest was issued on May 8. On the same day he appeared in such court and executed a bond for continuance and/or appearance providing for his appearance in court at the time and place appointed for trial, then and there to answer the complaint. Trial, at which all parties were present and represented by counsel, was had in the county court on June 10 resulting in his conviction and sentence. Appellant then gave notice of appeal and executed an appeal bond for his appearance in district court, which was approved by the judge of the county court and resulted in a stay of his sentence. Thereafter such judge made return of the proceedings had before him to the district court.

The case came on for trial in district court on February 5, 1958, all parties being present in court and represented by counsel. After a jury had been impaneled and sworn appellant filed what he termed a motion to quash and plea in abatement wherein he attacked certain instruments filed in that court by the judge of the county court and asked that such instruments be ordered stricken, that the action be abated and dismissed, and that he be discharged. This motion was overruled. Thereupon the trial proceeded and, after introduction of evidence by the parties and the giving of instructions by the court, the cause was submitted to the jury which returned a verdict finding appellant guilty of the crime charged in the complaint. Subsequently, and after overruling his motion for a new trial, the court rendered judgment and imposed sentence in accord with the verdict, whereupon he perfected this appeal.

Pointing out that county courts are courts of record (G.S.1957 Supp. 20-802) and that our constitution (Art. 3, § 1) provides that all such courts shall have a seal to be used in the authentication of process, the appellant contends, that in view of the fact, as must be conceded, the county court failed to affix its seal to the complaint, warrant and transcript of proceedings filed in the district court, his motion to quash and plea in abatement should have been sustained because under such circumstances the district court had no power or authority to hear and determine the appeal which he had perfected from his conviction and sentence in the county court. As applied to all contentions advanced on this point with respect to the claimed defects in the complaint and warrant the answer is to be found in our decisions. Whatever it may be elsewhere the established rule in this jurisdiction is that defects of the character here involved, however serious, in both complaints and warrants, are waived by a defendant when, without having objected thereto, he gives a bond for appearance in the county court and/or furnishes a bond for appeal to the district court. For some of our decisions supporting this conclusion see State v. White, 76 Kan. 654, 657, 92 P. 829, 14 L.R.A.,N.S., 556; State v. Miller, 87 Kan. 454, 124 P. 361; State v. Edwards, 93 Kan. 598, 144 P. 1009; State v. Cole, 93 Kan. 819, 821, 150 P. 233; State v. Carter, 122 Kan. 524, 253 P. 551; State, ex rel. v. Strevey, 138 Kan. 646, 648, 27 P.2d 253; State v. Toelkes, 139 Kan. 682, 685, 33 P.2d 317; State v. Grady, 147 Kan. 268, 76 P.2d 799; State v. Dye, 148 Kan. 421, 429, 83 P.2d 113; City of Wichita v. Hibbs, 158 Kan. 185, 146 P.2d 397; Hill v. Day, 168 Kan. 604, 215 P.2d 219. Answers to appellant's contentions relating to the failure of the county court to affix its seal to the transcript filed in the district court are short and simple. In the first place, we do not regard the return of the proceedings had before the county court to the district court as process and within the meaning of that term as used in Art. 3, § 1 of our constitution. In the next, all that the provisions of G.S.1949, 63-401, applicable by reason of G.S.1949, 20-808, require is that a judge of the county court certify his return of the proceedings had before him to the district court and the record discloses that was done. In fact in ruling on the motion to quash the court expressly so found.

Another of appellant's contentions, to the effect the trial court erred in overruling his motion to quash when the warrant showed no return by the sheriff, lacks merit and cannot be upheld when reviewed in the light of the decisions to which we have heretofore referred.

Several grounds of appellant's motion to quash and plea in abatement, although differently stated, were based upon the premise the county judge, from whose judgment the appeal was taken, had failed to make a return of the proceedings had before him as required by the provisions of G.S.1949, 63-401. In overruling these grounds of the motion the trial court, which had all of the files before it and was in far better position than this court to pass upon what they disclosed, had this to say:

'Now, as to whether or not the County Court certified the original complaint, warrant and other original papers from the County Court as shown by the certification in the file, there are two things I wish to point out that the file shows. Until this morning, every paper in the file was stamped filed in the District Court on June 14, 1957, and these papers are all enclosed in the flat file by means of two...