State v. Bland
| Decision Date | 10 April 1926 |
| Docket Number | 26,851 |
| Citation | 120 Kan. 754,244 P. 860 |
| Parties | THE STATE OF KANSAS, Appellant, v. ROBERT BLAND, Appellee |
| Court | Kansas Supreme Court |
Decided January, 1926.
Appeal from Jefferson district court; MARTIN A. BENDER, judge.
Judgment reversed and cause remanded.
SYLLABUS BY THE COURT.
1. CRIMINAL LAW--Preliminary Commitment -- Sufficiency of Transcript. A transcript of the docket of a justice of the peace showing the filing of a complaint, issuance and return of a warrant, appearance of the defendant, that the defendant waived a preliminary examination and entered into a recognizance to appear in the district court to answer the charge against him, is sufficient to confer jurisdiction on the district court, although it omits a recital of a finding that an offense had been committed and that there was probable cause to believe the defendant guilty of its commission.
2. SAME--Review--Plea in Abatement--Necessity for New Trial. And where, on a trial on a plea in abatement in the district court, the proceedings outlined in the foregoing syllabus were submitted to the court, the legal effect of such proceedings was one of law and not of fact, and an erroneous decision thereon did not require the filing of a motion for a new trial in order to preserve the question for review.
Charles B. Griffith, attorney-general, C. A. Burnett, assistant attorney-general, Lloyde Morris, county attorney, and Oscar Raines, of Topeka, for the appellant.
H. T Phinney and H. N. Casebier, both of Oskaloosa, for the appellee.
Defendant was arrested charged with grand larceny, waived a preliminary hearing, was bound over to the district court, gave bond for $ 500, and was discharged in district court on a plea in abatement. The state appeals.
The defendant contends that he was rightfully discharged because the examining magistrate's transcript failed to show a finding had been made that a crime had been committed, and that there was probable cause to believe the defendant was guilty; also, that upon the trial of the plea in abatement an issue of fact was raised and decided in his favor, and that the state is precluded from a review of the question because it failed to file a motion for new trial.
The defendant's contention is untenable. The transcript of the magistrate shows that defendant voluntarily waived a preliminary hearing upon the offense charged in the complaint and warrant (grand larceny). By so doing he precluded the necessity of making inquiry as to whether a crime had been committed, and whether he was probably the guilty party. He gave bond for his appearance in the district court to answer the complaint lodged against him, containing the recital that "it appears that the offense of grand larceny has been committed and there is probable cause to believe the defendant guilty of its commission." If one accused of crime waives his right to a...
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State v. Jones, 44964
...Under such circumstances the right to plead in abatement was waived. (State v. Tucker, 115 Kan. 203, 222 P. 96; State v. Bland, 120 Kan. 754, 755, 244 P. 860; State v. McCarther, 196 Kan. 665, 414 P.2d 59.) See, also, State v. Pittman, 199 Kan. 591, 433 P.2d 550, and Gray v. State, 194 Tenn......
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State v. Addington
...Under such circumstances the right to plead in abatement was waived. (State v. Tucker, 115 Kan. 203, 222 P. 96; State v. Bland, 120 Kan. 754, 755, 244 P. 860; State v. McCarther, 196 Kan. 665, 414 P.2d 59.) See, also, State v. Pittman, 199 Kan. 591, 433 P.2d 550, and Gray v. State, 194 Tenn......
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State v. Howland
...State v. Demming, 79 Kan. 526, 528, 100 P. 285, the transcript filed showed probable cause to believe defendant guilty. In State v. Bland, 120 Kan. 754, 244 P. 860, the transcript showed the defendant had waived a examination. In Foley v. Ham, 102 Kan. 66, 169 P. 183, L.R.A.1918C, 204, the ......
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State v. Tucker
... ... after an information has been filed, setting forth fully and ... specifically the offense attempted to be charged in the ... warrant, to say that he has had no preliminary ... examination." ... To the ... same effect, see State v. Bland, 120 Kan. 754, 756, ... 244 P. 860, and authorities there cited ... Appellant's ... contentions concerning the motion to correct the journal ... entry pertaining to the first trial and his plea in bar may ... be considered together, and arise in this way: At the session ... of court ... ...