State v. Bloomer
| Decision Date | 10 December 1966 |
| Docket Number | No. 44140,44140 |
| Citation | 421 P.2d 58,197 Kan. 668 |
| Parties | STATE of Kansas, Appellee, v. Harry Jack BLOOMER, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
The record of trial in a proceeding wherein appellant was convicted of the crime of murder in the second degree examined and held, prejudicial error warranting reversal of the judgment and sentence is not shown in (1) irregularities in the waiver of preliminary examination (2) admission in evidence of appellant's confessions (3) alleged disqualification of a juror to sit in the case (4) absence of counsel prior to arraignment in district court (5) the filing of the mandate of this court upon a prior appeal directing a new trial (6) appellant's appearance before the examining magistrate while handcuffed (7) statements as to the law made by persons not licensed to practice law, or (8) being placed twice in jeopardy for the same offense.
Norbert R. Dreiling, Hays, argued the cause and was on the brief, for appellant.
W. R. Hainline, County Atty., of Trego County, argued the cause and Robert C. Londerholm, Atty. Gen., and Donald C. Staab, County Atty., of Ellis County, were with him on the brief, for appellee.
HARMAN, Commissioner.
In 1962 in the district court of Ellis County, Kansas, where the case had gone upon change of venue from Trego county, appellant Harry Jack Bloomer was convicted by a jury of the offenses of murder in the first degree and assault with felonious intent and sentenced. His appeal to this court resulted in an affirmance of the conviction and sentence for felonious assault and a reversal of the murder conviction with directions to grant appellant a new trial on that charge. The reversal was based on the failure to serve a copy of the information upon the defendant appellant forty-eight hours prior to arraignment as required in capital cases by G.S.1949, 62-1302 (State v. Bloomer, 192 Kan. 581, 390 P.2d 29).
Following determination of the first appeal, different counsel was appointed for appellant, he was formally rearraigned upon the murder charge after delivery to him of a copy of the information more than forty-eight hours prior thereto, he was tried again before a jury for the murder offense and convicted of murder in the second degree. His motion for new trial was overruled and he has been sentenced on the murder charge to life imprisonment. He appeals from that conviction upon several grounds, one of which he urges should result in a reversal also of the felonious assault conviction previously affirmed.
This first contention of error involves appellant's waiver of a preliminary examination. The pertinent facts here are as follows: On July 14, 1962, while riding as a passenger in the back seat of an automobile on a public highway near the city of WaKeeney in Trego county, Kansas, appellant, an itinerant laborer with a sixth grade education, allegedly shot and killed Al Claycamp, a deputy sheriff of Trego county, and shot and wounded Chet McAtee, the sheriff of Trego county, driver of the automobile. After the shooting appellant and a girl companion fled on foot across the countryside. A three day manhunt by law enforcement officers and local citizenry extending over a wide area of western Kansas ensued. On the evening of the shooting the judge of the county court of Trego county, who was a nephew of the wounded sheriff, armed himself and joined the posse searching for appellant. He continued in the search for two days, meanwhile issuing a warrant for appellant's arrest.
On July 17, 1962, appellant was apprehended in a vacant farm building. He was taken immediately before the county judge upon return of the arrest warrant. Bail was fixed at $150,000.00 and his preliminary hearing was set for July 20, 1962. Upon that date appellant appeared again before the county judge, acting as examining magistrate, and appellant waived his preliminary hearing and was bound over to the district court of Trego county for trial upon the charges of murder of the deputy sheriff and felonious assault upon the sheriff.
Appellant alleges he did not learn that the county judge was a nephew of the Trego county sheriff or of his participation in the posse until after the first trial which is why he did not raise the question sooner. It was raised in the second trial in this way: Prior to his rearraignment appellant filed a motion to quash the information. This motion was argued and overruled. At the arraignment May 14, 1964, when called upon to plead appellant stood mute and a plea of not guilty was entered in his behalf and the case was set for trial. On July 13, 1964, appellant filed a plea in abatement calling attention among other things to the fact that the county judge was a nephew of one of the alleged victims and a member of the posse.
Upon the hearing of this plea in abatement the county judge was called as a witness to testify as to what transpired at the July 20, 1962, hearing wherein appellant waived preliminary examination. He testified he fully advised appellant of his rights and of his right to counsel but that the court could not appoint counsel for him, and he further testified as follows:
The plea in abatement was overruled as were two other motions by appellant denominated Objection to Trial of Actions and Objection to Introduction of Testimony and trial was had. Based upon the three items mentioned-the relationship of the examining magistrate to one of the victims, his participation as a posse member and his misadvice contained in the aforesaid quotation-appellant argues there could be no valid waiver of his right to preliminary hearing because of the disqualification of the county judge to act in a judicial capacity and the failure to advise appellant correctly as to the law. With respect to the misadvice appellee argues that at the time the quoted testimony was given in district court it went entirely unnoted by counsel and the trial judge, hence it may have been inadvertently transcribed by the court reporter who lacked experience or that, if such statement was actually made, the county judge was referring to the county attorney when he testified 'he' would have to put on evidence and see whether there were grounds for binding appellant over. There is ambiguity in the statement as recorded but we cannot indulge such inferences as urged by appellee, however plausible, and therefore treat the matter as misadvice on the law.
These three matters may be treated together. This court has frequently had occasion to rule as to the effect of irregularities in the conduct of preliminary examinations, most recently in State v. McCarther, 196 Kan. 665, 414 P.2d 59, where many of those decisions are reviewed. We find no decisions precisely touching the matter at issue here. We do have a line of cases holding that a defendant may not by plea in abatement challenge the qualifications of the examining magistrate (see State v. King, 190 Kan. 825, 378 P.2d 147). We have another line of cases holding that the subject of preliminary hearing is no longer material after a defendant has waived such hearing, pleaded not guilty and gone to trial (see cases cited in State v. McCarther, supra). Although the rules in these cases might well be applied as a basis for denial of appellant's contention we think the unusual facts here warrant further consideration.
This court has repeatedly held that a preliminary examination is not a trial in the sense that word is ordinarily used. In the oft-cited case of State v. Badders, 141 Kan. 683, 42 P.2d 943, it was pointed out that a preliminary examination is not judicial and that under our statutes authority to conduct it may be vested in persons other than courts, such as mayors (K.S.A. (then R.S.) 62-201; 62-601). In State v. Cox, 193 Kan. 571, 396 P.2d 326, cert. den., 380 U.S. 982, 85 S.Ct. 1350, 14 L.Ed.2d 276, the purpose of a preliminary examination was indicated as follows:
'Its purpose is to determine whether an offense has been committed and whether there is probable cause for charging a defendant with the commission thereof. It is not a 'trial' in the ordinary sense of the word, and neither is it a trial in the sense that one may be found (p. 572, 396 P.2d p. 328.)
The object of a preliminary examination is not to determine guilt or innocence of the crime charged. The examining magistrate has no power to acquit but only the power to discharge from custody. Such discharge is not a bar to another examination (State v. Jones, 16 Kan. 608).
Although the state may have a legitimate interest in holding a preliminary examination, the provision for the same is primarily for the benefit of the accused. It is a protective procedure whereby a possible abuse of power may be prevented (Whalen v. Cristell, 161 Kan. 747, 173 P.2d 252), to the end no person shall be detained for a crime where there is no evidence to support a charge against him (see 22 C.J.S. Criminal Law §§ 331, 333a, and 338).
We recognize that the right to a preliminary hearing (absent grand jury indictment or being a fugitive from justice) prior to being informed against in district court for felony is a positive right of an accused-the right not to be held in...
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