State v. Bowman

• Decision Date: 06 March 1920
• Docket Number: 22,375
• Citation: 106 Kan. 430,188 P. 242
• Parties: THE STATE OF KANSAS, Appellee, v. EARL BOWMAN, Appellant
• Court: Kansas Supreme Court

188 P. 242

106 Kan. 430

THE STATE OF KANSAS, Appellee, v. EARL BOWMAN, Appellant

No. 22,375

Supreme Court of Kansas

March 6, 1920

Decided January, 1920.

Appeal from Pratt district court; GEORGE L. HAY, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

CRIMINAL LAW -- Prosecution for Grand Larceny -- Statute of Limitations. On March 8, 1916, a complaint was filed on which a warrant was issued and delivered to the sheriff for the arrest of the defendant for felony. At that time the defendant was serving sentence for felony, but was outside the penitentiary, under a parole granted in August, 1915. On March 6, 1916, the parole was revoked, and on March 17 he was returned to the penitentiary. He remained in the penitentiary until August 20, 1918, when he was paroled. He was finally discharged on September 19, 1918, and the warrant was served on September 28, 1918. The information subsequently filed charged that the offense was committed "on the day of November, 1915." Held:

1. LARCENY--Date of Offense Sufficiently Stated. The date of the offense was stated with sufficient certainty.

2. LIMITATION OF ACTIONS--Larceny--Information. The information did not show on its face that the prosecution was barred by the two-year statute of limitations.

3. SAME--Judicial Notice -- Transcript of Preliminary Proceedings -- Presumptions. The court took judicial notice from the transcript of the preliminary proceedings on file in the cause, of the time when the complaint was filed and the warrant was issued; the presumption was the sheriff performed his official duty in executing the warrant; and the record, aided by the presumption, disclosed commencement of prosecution within the statutory period.

4. SAME--Confinement in Penitentiary After Prosecution Was Begun. The statute specifying that time of absence of the defendant from the state, concealment to avoid service of process, and concealment of the fact of crime, shall not be included in computing the period of limitation, relates to the time within which action shall be commenced, and does not forbid exclusion of the time the defendant was in the penitentiary after prosecution was commenced.

5. SAME.--Acts Showing Commencement of Criminal Prosecution. A criminal prosecution is commenced when a warrant on which the defendant is arrested is duly issued in good faith and delivered to the sheriff for service. This is true, although there may be subsequent unnecessary delay in executing the writ, but the time such delay continues is included in computing the period of limitation.

6. SAME--Defendant Confined in Penitentiary--Duty of Sheriff. The sheriff was not authorized to execute the warrant during the time the defendant was confined in the penitentiary, and such time may not be credited to him, in computing the statutory period, as unnecessary or unreasonable delay in executing the writ.

7. SAME. The sheriff's official duty did not require him to request parole or other release of the defendant from the penitentiary for arrest and prosecution, even if such request would have been availing; and the sheriff is not chargeable with lack of diligence or failure to improve opportunity in executing the writ because he did not make such request.

8. SAME--Prosecution Begun in Good Faith. The proceedings examined, and held, there was no evidence whatever, admitted or offered for admission, that the prosecution was not commenced in good faith.

9. APPEAL--No Prejudicial Error. Various assignments of error considered, and held to be without substantial merit.

W. R. Smith, of Topeka, Seward I. Field, and A. L. Orr, both of Medicine Lodge, for the appellant.

Richard J. Hopkins, attorney-general, E. R. Barnes, county attorney, for the appellee; R. F. Crick, and L. G. Turner, both of Pratt, of counsel.

OPINION

BURCH, J.:

The defendant was convicted of larceny of thirty-three head of cattle, and appeals.

What we are accustomed to call "the merits of the case" are not involved. There are none. In February, 1913, the defendant pleaded guilty to stealing a carload of cattle, and was sentenced to the penitentiary. The trial judge, in his statement made for the information of the penitentiary officials, said the defendant had "an irresistible inclination to steal cattle." In August, 1915, the defendant was paroled, on condition he kept out of the particular cattle district with which he had been familiar all his life. The old lure was too strong. He returned to his former haunts, and on November 13 took the cattle in question from the Bobbitt pasture, drove them to Pratt, and the next morning shipped them to St. Joseph, Mo., where they were sold on the market. At the trial he interposed a feeble alibi, but the Gibraltar of his defense was the statute of limitations, kept running through bad faith of the prosecution.

The complaint was filed and the warrant was issued on March 8, 1916. The defendant was arrested on September 28, 1918. The information charged that the larceny was committed "on the __ day of November, 1915." The statutory period within which prosecution might be commenced after commission of the offense was two years. The parole which the defendant was enjoying when he committed the larceny was revoked on March 6, 1916, and a warden's warrant was issued for his apprehension. On March 17, 1916, the parole officer took the defendant into custody under this warrant, and returned him to the penitentiary. In 1918, the defendant was granted a temporary parole which extended from March 1 to March 12. On August 20, 1918, the defendant was paroled, and on September 19 he was finally discharged. From March 8, 1916, when the warrant in the present case was issued, until September 28, 1918, when the warrant was served, the defendant was confined in the penitentiary, under the former conviction, all the time except about sixty days. From the time the offense was committed until the defendant was arrested he was confined in the penitentiary all the time except approximately six months.

It is said the information was insufficient because it did not state with definiteness and certainty the exact date of the offense. This was unnecessary. (Gen. Stat. 1915, § 8019; The State of Kansas v. Barnett, 3 Kan. 250; The State v. Brooks, 33 Kan. 708, 7 P. 591.)

It is said the information disclosed on its face that the prosecution was commenced more than two years after the offense charged was committed. This is not true. The information did not disclose, on its face or otherwise, when the prosecution was commenced. The information was a step in the prosecution subsequent to its commencement. The certified transcript of the earlier proceedings was on file in the cause, from which the court took judicial notice of the time when the complaint was filed and the warrant issued. The presumption was that the sheriff performed his official duty in executing the warrant, and without evidence on the subject, the court would have been authorized to instruct the jury that the prosecution was commenced on March 8, 1916, or within less than four months after the offense was committed. (The State v. Stevens, 56 Kan. 720, 723, 44 P. 992; The State v. Waterman, 75 Kan. 253, 88 P. 1074; The State v. White, 76 Kan. 654, 92 P. 829.)

The defendant says the time of his confinement in the penitentiary may not be excluded in computing the statutory period. This claim is based on the language of the statute specifying that time of absence from the state, concealment to avoid service of process, and concealment of the fact of the crime, shall not be included in computing the period of limitation (Gen. Stat. 1915, § 7942); and on a paragraph of the opinion of this court in the case of In re Griffith, Petitioner, 35 Kan. 377, 11 P. 174, which reads as follows:

"It is further claimed in behalf of the state, that the time when Griffith was incarcerated in the state penitentiary should be excluded from the period of limitation. There is no ground whatever for this claim. The only exceptions to the statute are those mentioned in section 33 of the criminal code, and imprisonment in the penitentiary does not fall within any of them. He was, of course, not absent from the state, nor did he conceal the fact of the crime; neither can it be said that he concealed himself so that process could not be served upon him. He was convicted and imprisoned by the state, and of necessity the state and its officers were acquainted with his whereabouts." (p. 381.)

The statute relates to the time within which action shall be commenced, not prosecuted after it has been commenced, and the language of the opinion in the Griffith case refers to the same subject, as indicated by the syllabus, which reads as follows:

"Imprisonment in the state penitentiary does not fall within any of the exceptions of the limitations upon criminal prosecutions; and therefore the time of imprisonment of the accused within the state, which passes before a prosecution is begun, cannot be excluded from the statutory period of limitation." (p. 377.)

The prima facie showing made by the transcript, that the action was commenced on March 8, 1916, was open to dispute. In order that the complaint and warrant should constitute commencement of an action, it was essential that they be employed for the purpose for which they are provided. In the Griffith case, supra, a complaint was filed, but no warrant was issued until the statute had run. It was held no action was commenced before the statute had run. In the opinion the court approved the ruling and language of the supreme court of Michigan in the case of The People v....