State v. Belisle

• Decision Date: 24 January 1948
• Docket Number: 36839.
• Citation: 188 P.2d 642,164 Kan. 171
• Parties: STATE v. BELISLE.
• Court: Kansas Supreme Court

188 P.2d 642

164 Kan. 171

STATE v. BELISLE.

No. 36839.

Supreme Court of Kansas

January 24, 1948

Appeal from District Court, Butler County; W. N. Calkins, Judge.

Ed Belisle was convicted in county court of drunken driving, and he appealed to the district court.From an adverse judgment of the district court, the defendant appeals.

Judgment of district court affirmed.

Syllabus by the Court.

1.When a defendant appeals to the district court pursuant to G.S.1945 Supp., 63-401, from a conviction in a 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 the statute.

2.The general certificate in the present case was sufficient for the purpose of showing that the defendant was being tried in the district court upon the original complaint filed against him in the lower court.

Gale Moss, of El Dorado, for appellant.

Edward F. Arn, Atty. Gen., and Harold R. Fatzer, Asst. Atty. Gen for appellee.

BURCH Justice.

The question presented is whether the district court erred in requiring the defendant to go to trial upon a complaint which the defendant contends had not been properly certified as required by G.S.1945 Supp., 63-401.The part of the statute germane to the appeal reads: '* * * The justice from whose judgment the appeal is taken shall make return of the proceedings had before him, and shall certify the complaint and warrant together with all the recognizances to said district or criminal court on or before the first day of the term thereof next thereafter to be holden in the county; * * *'(Emphasis supplied.)

The complaint involved did not bear any separate certification but was attached to a 'transcript on appeal', which transcript was verified by the affidavit of the judge of the county court.The district court ruled that the complaint was sufficiently certified.The state asserts that the ruling was correct, and in addition avers that the defendant cannot contend to the contrary because he at all times knew he was being tried upon the original complaint.

The defendant was convicted in the county court of driving a motor vehicle while under the influence of intoxicating liquor as defined by G.S.1945 Supp., 8-530.On appeal to the district court, the judge of the county court attached to the transcript the original complaint on which the defendant was tried in the county court, and filed such transcript with the clerk of the district court.The transcript on appeal reads: 'Be it remembered, That in the County Court of Butler County, Kansas, the following proceedings which are attached hereto were had concerning the above entitled action: * * *.'Following such statement the proceedings and the dates thereof are listed, including an entry reading: 'October 12, 1946 Complaint issued.'The original complaint, state warrant recognizance on appeal, journal entry of judgment, appeal bond, etc., were all attached to the transcript on appeal by stapling them thereon.The transcript closed with the following affidavit:

'I, Ralph B. Ralston, Judge of the County Court of Butler County, Kansas, do hereby certify that the above and foregoing is a full and true and complete transcript of the proceedings pertaining to the appeal taken in the above matter from the order, decision and judgment of said County Court to the District Court of Butler County, Kansas, as the same appears of and is of record in said Court.

'In witness thereof, I have hereunto set my hand and affixed the seal of said Court, at my office in the City of El Dorado, in said county and state, this 17th day of October, 1946.'

Thereafter followed the signature of the judge and the seal of the court.

When the case was called for trial in the district court, counsel for the defendant made many and timely objections, including objections based upon the contention that no legal complaint or other accusation had been filed in the district court.After some discussion among counsel for the defendant, counsel for the state, and the court, pertaining to whether the defendant was going to trial upon an information or complaint, counsel for the defendant stated:

'Is it the understanding that the information is withdrawn from the file, and the original complaint will apply?

'The Court: That is right.'

Thereupon the court overruled the defendant's objection to proceeding to trial because of the asserted faulty certification of the complaint.A jury was called and the trial proceeded.

On this appeal the only point raised is that the complaint was not properly certified in compliance with the statute.Counsel for the state make the contention that the objection as to the certification of the complaint was not timely made.We are of the opinion that the point may not be supported by the record and therefore will consider the defendant's contention upon its merits.

The purpose of the statute involved is to insure and safeguard a defendant's right to be tried for the same offense in the district court for which he was tried and convicted in the lower court.The state asserts that the certificate in the case under consideration was sufficient for such purpose.There is no contention in this case that the complaint which was attached to the certified transcript was not the original complaint.And the statement by counsel for the defendant that it was his understanding that '* * * the original complaint will apply' indicates very strongly that such counsel was aware of its authenticity at the time of the trial.In such circumstances, it is difficult to discern wherein the defendant's rights have been prejudiced in any manner.If we regard the failure to place a separate certificate upon the complaint as a technical error or defect, we are admonished by G.S.1935, 62-1718, that 'On an appeal, the court must give judgment without regard to technical errors or defects, or to exceptions which do not affect the substantial rights of the parties.'

However, the diligent counsel for the defendant insists that the error complained of is not a technical error or defect and calls our attention to the following cases in which a similar question has been ruled upon by this court: State v. Anderson,17 Kan. 89;State v. Anderson,34 Kan. 116, 8 P. 275;State v. English,34 Kan. 629, 9 P. 761;State v. Allison,44 Kan. 423, 24 P. 964;State v. Durein,65 Kan. 700, 70 P. 601;State v. Plomondon,75 Kan. 853, 90 P. 254;City of Salina v. Laughlin,106 Kan. 275, 187 P. 676;State v. Madden,119 Kan. 263, 237 P. 663;andState v. Hall,138 Kan. 460, 26 P.2d 265.From the reported list of casescounsel for the defendant selects State v. Anderson,17 Kan. 89, supra, State v. Anderson,34 Kan. 116, 8 P. 275, supra, and particularly State v. Durein, supra, and asserts that such cases require a reversal in the present case.

In State v. Anderson,17 Kan. 89, supra, the defendant was compelled to go to trial upon a certified copy of the complaint.The applicable statute then (as now) clearly read that upon appeal the cause should proceed to trial upon the original complaint.Obviously, a certified copy is not an original complaint as required by the statute.SeeG.S.1935 63-402.It was held in the opinion that it would be a dangerous precedent to permit certified copies to be substituted for...