State v. Brockelman
| Decision Date | 08 November 1952 |
| Docket Number | No. 38688,38688 |
| Citation | 249 P.2d 692,173 Kan. 469 |
| Parties | STATE v. BROCKELMAN. |
| Court | Kansas Supreme Court |
Syllabus by the Court
Where statutory appeal bond is posted under G.S.1949, 63-401, and the justice of the peace fails to certify the transcript of record to the district court, as provided therein, for a period of one year at the direction of the county attorney, as more fully set out in this opinion, held, That such action on the part of such public officials did not afford defendant a speedy trial as guaranteed by section 10 of the Bill of Rights of our state constitution, and the trial court did not err in dismissing the action and discharging the defendant
H. R. Fatzer, Atty. Gen., and Charles W. Bradshaw, County Atty., Abilene, on the brief for appellant.
John E. Wheeler, of Marion, argued the cause, and was on the brief for appellee.
This is an appeal by the state from an order and judgment of the trial court discharging defendant in a case brought to the district court on appeal from the justice of the peace court.
For purposes of clarity, the appellant will be referred to as the state, and the appellee as defendant.
On December 30, 1950, defendant was charged in a complaint filed in the justice of the peace court of Herington, Kansas, with reckless driving, a misdemeanor, in violation of G.S.1949, 8-531. No warrant was issued, however defendant appeared before the justice of the peace on the same day in response to a summons issued by a highway patrolman and pleaded guilty to the offense. He was thereupon duly sentenced to serve ninety days in the county jail and to pay a fine of $100 and the costs of the action. Later the same day defendant employed an attorney and notified the justice of the peace that he desired to appeal the judgment and sentence to the district court. The same evening he posted a statutory appeal bond, G.S.1949, 63-401, as fixed and approved by the justice of the peace, conditioned for his appearance at the district court of Dickinson county at the next term thereof, to answer the complaint against him and was thereupon immediately released from confinement. The next term of the Dickinson county district court commenced January 1, 1951, and succeeding terms May 21, September 10, 1951, and January 7, 1952, G.S.1949, 20-1008.
The appeal was not certified by the justice of the peace to the district court until December 29, 1951, one year after the appeal bond was filed and approved. Six days later, on January 4, 1952, defendant filed his motion in the district court seeking a dismissal of the case and his discharge in said action. The motion sets forth, in substance, the facts hereinbefore related, and further alleges that the delay in bringing him to trial was not occasioned by any application or consent on his part, nor for the want of time to try said cause. It was further alleged that after defendant had posted his appeal bond, the county attorney instructed the justice of the peace not to certify the appeal to the district court, and that such action was tantamount to a discharge of the defendant.
Although not expressly stated in the motion, it may be interpreted from the facts set forth therein that it was the contention of the defendant that his constitutional rights had been violated, in that he had not been allowed a speedy trial as provided by section 10 of the Bill of Rights of the state Constitution.
At the hearing on said motion in the lower court, the justice of the peace testified, in substance, that the reason he did not certify the case immediately to the district court after the appeal bond was filed was that the county attorney came to his office, had a discussion about the case and told him not to proceed with the transcript; that he understood the county attorney to tell him to forget the appeal; that shortly thereafter, defendant's counsel inquired of him why the transcript had not been filed and he informed him the county attorney had told him to forget it, that he was going to refile.
At the conclusion of the hearing on the defendant's motion, the court ordered defendant discharged and the appeal dismissed. It is from this order that the state appeals. This brings us to the question--was defendant afforded a speedy trial?
Section 10 of the Bill of Rights of our state Constitution provides, in part, that 'In all prosecutions, the accused shall be allowed * * * a speedy public trial by an impartial jury of the county or district in which the offense is alleged to have been committed.'
The constitutional right to a speedy trial obtains without respect to the grade of crime of which the accused may be charged. It is guaranteed to every person accused of crime. 14 Am.Jur.,...
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Beckwith v. State, 91-IA-1207
...the States where similar questions have arisen. 118 A.L.R. 1037; State v. Milner, et al (Ohio Com.Pl.) 149 N.E.2d 189; State v. Brockelman, 173 Kan. 469, 249 P.2d 692; Arrowsmith v. State, 131 Tenn. 480, 175 S.W. Jones, 250 Miss. at 188-190, 164 So.2d at 799-800. In Jones, this Court relied......
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State v. Hess
...to an accused person of a right, of which he cannot be deprived by the laches of public officers. (In re Trull, 133 Kan. 165 ; State v. Brockelman, 173 Kan. 469 .) Its provisions are a directive to prosecuting officers to act, and not to delay, the prosecution of persons charged with crimin......
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Cooper v. State, 44445
...Nash, 7 Cir., 311 F.2d 513, cert. den. 374 U.S. 809, 83 S.Ct. 1700, 10 L.Ed.2d 1033.) It is pertinent to observe that in State v. Brockelman, 173 Kan. 469, 249 P.2d 692, cited by appellant, the delay complained of did not relate to the preliminary examination, but to the trial of an appeal ......
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...Hicks v. People, 148 Colo. 26, 364 P.2d 877 (1961) (en banc); State v. McElroy, 561 A.2d 154, 155-56 (Del.1989); State v. Brockelman, 173 Kan. 469, 249 P.2d 692, 695 (1952); State v. Knox, 207 Mont. 537, 675 P.2d 950, 952 (1984); State v. Langone, 127 N.H. 49, 498 A.2d 731 (1985); Ex parte ......