State v. Blockyou
| Citation | 407 P.2d 519,195 Kan. 405 |
| Decision Date | 06 November 1965 |
| Docket Number | No. 43840,43840 |
| Parties | The STATE of Kansas, Appellee, v. Floyd BLOCKYOU, Appellant. |
| Court | United States State Supreme Court of Kansas |
Syllabus by the Court
1. The propriety of a ruling on a plea in bar based on double jeopardy is determined from the recorded proceedings and not from a transcript of the testimony in the first trial.
2. The existence of inability of the jury to agree nullifies any seeming jeopardy and when the trial court concurs in and affirms the jury's conclusion that it is unable to agree the finding is absolute and conclusive in the absence of abuse of discretion.
3. If court appointed counsel finds after diligent investigation that his client's contentions have no merit he is not obliged to stultify his legal integrity in an effort to support them.
Edgar Dwire, Wichita, argued the cause, and E. L. Malone, Wichita, on the briefs for appellant.
Keith Sanborn, County Atty., Wichita, argued the cause, and Robert C. Londerholm, Atty. Gen., and Richard Seaton, Asst. Atty. Gen., Topeka, and R. K. Hollingsworth, Deputy County Atty., Wichita, with him on the briefs for appellee.
HATCHER, Commissioner.
This is an appeal from a conviction of manslaughter in the first degree.
The appellant complains of no trial errors but rather bases his charge of improper conviction on a claim of double jeopardy. Only the limited facts necessary to a determination of that issue and related questions will be presented.
The defendant, while engaged in a drunken brawl, attempted to shoot his wife but instead shot a police officer killing him almost instantly. His first prosecution for murder in the first degree resulted in a hung jury. After the jury had deliberated for a long number of hours the trial judge inquired whether they had reached an agreement. They advised the judge that they had not. He then asked whether they would be able to reach a verdict and was answered in the negative by the foreman. He then asked the foreman whether he could see any further point in continuing their deliberations and the foreman answered, 'No sir.' He then inquired of the jury members if any member of the jury thought that they would be able to reach a verdict and no member responded affirmatively. The court then discharged the jury. Thereafter, the defendant was returned to the jail to await a new trial. Before the second trial defendant presented his plea in bar and motion to amend or strike the journal entry. The motion and plea were overruled.
The second trial was had and defendant was convicted of manslaughter in the first degree. The defendant, at the time for sentencing, abandoned his new trial motion and when the court inquired if there was any reason why defendant should not be sentenced, stated there was not. There being no legal cause why sentence should not be pronounced the court sentenced the defendant.
Up to this point defendant had been represented by counsel of his own choosing.
Not quite six months later defendant prose filed his notice of appeal, motion for the record and appointment of counsel which were provided for him. Thereafter, the motion for the production of the transcript of the trial which resulted in a hung jury was presented and overruled. When the matter was presented, and prior to such presentation, the defendant was told that the state would order and pay for any part of the transcript which was deemed relevant but maintained that the transcript of the trial resulting in the hung jury was not relevant to the appeal in the present proceedings.
The notice of appeal states that the defendant appeals from the judgment, sentence and order of commitment rendered in the second trial.
We must admit that it is not without some difficult that we determine just what issue the defendant is raising on appeal. We are informed in appellant's brief and were again admonished on oral argument that under no circumstances does the appellant want to face the hazard of a new trial. The appellant therefore raises no trial errors. Perhaps the issue presented by appellant's seven questions set out in his brief may be summarized as follows:
Where an indigent defendant desires to appeal from an order denying a plea in abatement based on the manner in which the trial court discharged a hung jury, is he, following a conviction on a second trial, entitled to a free transcript of the entire trial proceedings of both the first and second trial?
The appellant argues:
We agree with what was said in Hardy v. United States, 375 U.S. 277, 279, 84 S.Ct. 424, 426, 11 L.Ed.2d 331:
* * *'
However, the trial proceedings in the first trial which resulted in a hung jury become a nullity when the jury is discharged. They are not subject to review by an appellate court. Neither are they matters for consideration in the second trial. The second trial is tried de novo.
The only occasion when the proceedings in the first trial would be material would be in connection with such matters as double jeopardy. Then the trial proceedings such as the testimony of the witnesses would have no bearing. The only part of the transcript which would be material would be the...
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State v. Scott
...that the State could "overcome the presumption of the defendant's particularized need for the transcript"); State v. Blockyou, 195 Kan. 405, 407 P.2d 519, 522 (Kan.1965) ("The state should not be required to subsidize frivolous requests for indigent appellants."). Frivolous claims are "lack......
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Holmes v. State
...In re Phelps, 204 Kan. 16, 19, 459 P.2d 172 (1969), cert. denied 397 U.S. 916, 90 S.Ct. 922, 25 L.Ed.2d 97 (1970); State v. Blockyou, 195 Kan. 405, 407 P.2d 519 (1965). We acknowledge, however, that an attorney has no duty to assert on appeal every alleged error. As we stated in Baker, 243 ......
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State v. Finley
...statute was made applicable to the trial of criminal cases by K.S.A. 62-1412 (repealed, L.1970, Ch. 129, Sec. 22-4604; State v. Blockyou, 195 Kan. 405, 407 P.2d 519). Ordering of mistrials in criminal cases is now governed by K.S.A.1970 Supp. Although, Mrs. Cordova was identified as a girl ......
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State v. Burns, 73714
...was acquitted on that charge, and a new trial on rape violated his right to be protected from double jeopardy. In State v. Blockyou, 195 Kan. 405, 408, 407 P.2d 519 (1965), our Supreme Court concluded: "A defendant has not been in [double] jeopardy where his first trial results in a mistria......