State v. Brown, 45546

Decision Date13 June 1970
Docket NumberNo. 45546,45546
Citation470 P.2d 815,205 Kan. 457
PartiesSTATE of Kansas, Appellant, v. Annas BROWN, Appellee.
CourtKansas Supreme Court

Syllabus by the Court

In an appeal by the state in a criminal proceeding, from orders of the district court suppressing evidence, quashing the complaint and discharging defendant who had appealed from a magistrate court conviction of the offense of procuring an abotion (K.S.A. 21-437), the record is examined and, under the facts and circumstances set forth in the opinion, it is held the district court erred: (1) In denying the state's request for permission to have the original complaint certified by the magistrate; (2) in sustaining defendant's motion to quash the complaint; and (3) in sustaining defendant's motion to suppress evidence.

Raymond F. Berkley, County Atty., argued the cause, and Kent Frizzell, Atty. Gen., was with him on the brief for appellant.

Herbert R. Hess, Hutchinson, argued the cause, and John K. Leighnor, Hutchinson, was with him on the brief for appellee.

KAUL, Justice.

Defendant, Annas Brown, was charged in the magistrate court of Reno County with procuring an abortion under the provisions of K.S.A. 21-437.

On July 12, 1968, defendant was tried, convicted and sentenced by the magistrate court to a term of one year in the Kansas State Industrial Farm for Women and to pay a fine in the amount of $500. Defendant appealed to the district court.

On October 28, 1968, defendant appeared for arraignment and trial in the district court. Defendant refused to enter a plea and moved for dismissal of the complaint and discharge on the ground the district court did not have jurisdiction because the complaint had not been certified as required by K.S.A. 63-401 and 402 (now 1969 Supp.).

The district court entered a plea of not guilty for defendant and recessed the trial in order that counsel might present arguments on the matter.

A jury venire was in attendance at the courthouse, but had not been called for voir dire examination.

The proceedings of the magistrate court were certified to the district court by the clerk of the magistrate court. The defendant argued she could not be put on trial in district court unless the original complaint was certified by the magistrate himself.

At this juncture the county attorney asked leave to call the judge of the magistrate court, who was present, as a witness to identify and certify the original complaint and all other records in the case. The defendant opposed the request of the county attorney on the ground that a term of the district court had expired since the trial in magistrate court and, therefore, an attempt to remedy the defect at this point would be in violation of 63-401, supra, which requires certification of the complaint on or before the first day of the next term of the district court.

The trial court ruled:

'* * * There being no certification of the Annas Brown transcript by the magistrate court judge prior to commencement of the September term of this court, it is the opinion of this court that it cannot be amended since there is a new term of court. The motion of the defendant to halt further proceedings herein is granted.'

This appeal by the state ensued.

The magistrate court of Reno County was established by K.S.A.1967 Supp. 20-2541 (now 1969 Supp.), and according to the provisions of K.S.A.1967 Supp. 20-2549 (now 1969 Supp.) criminal procedure before justices of the peace, set out in Chapter 63 (K.S.A.), was applicable at the time.

Procedures for criminal appeals from a justice of the peace are found in 63-401 and 402, supra.

The portion of 63-401, with which we are concerned, reads:

'The justice from whose judgment the appeal is taken shall make return of the proceedings had before him, and shall certify the complaint and warrant together with all the recognizances to said district or criminal court on or before the first day of the term thereof next thereafter to be holden in the county; * * *'

This section was amended in 1969 and certification by a clerk of the justice of the peace is now authorized. (K.S.A.1969 Supp. 63-401.)

Section 63-402 provides in substance that the district court shall hear any cause brought by appeal from a justice of the peace upon the original complaint, unless such complaint be found insufficient and defective in which event the court shall at any stage of the proceedings order a new complaint to be filed therein. This section has also been amended and authorizes the district court to hear the cause upon the original complaint or copy thereof certified as provided in K.S.A. 63-401, now 1969 Supp.

The requirements of 63-401, pertaining to certification of the original complaint by a justice of the peace, have been considered by this court in a number of cases. In the case of State v. Belisle, (1948) 164 Kan. 171, 188 P.2d 642, what appears to be a complete list of all prior decisions dealing with the subject is set out on page 173 of the opinion. Justice Burch speaking for the court in Belisle reviews many of the prior decisions. It is unnecessary to extend this opinion by restating all that was said in Belisle. It will suffice to say the cases therein reviewed establish that the purpose of the statute is to insure and safeguard a defendant's right to be tried for the same offense in the district court, for which he was tried in the lower court, and that he be afforded a speedy trial in district court.

In the instant case the record of the magistrate court, including the complaint and warrant, was promptly certified to the district court by the duly appointed clerk of the magistrate court. The county attorney says the complaint included in the transcript is the original and the defendant makes no contention to the contrary; her only objection on this point being that it was not certified by the magistrate himself.

The state recognized the certification was not in strict compliance with the statute and attempted to cure the defect by producing the magistrate in the district court before the jury was impaneled and sworn. The district court denied the state's request to cure the certification on the ground that a term of the district court had expired since the trial in magistrate court. Thus the sole question before us on this point is whether the district court abused its discretion in denying the state's request under the circumstances existing.

Defendant argues that to allow certification of the magistrate on October 28, 1968 would have the effect of relating back to July 12, 1968, and thus would circumvent the requirement of 63-401, that the original complaint be certified on or before the commencement of a new term of the district court. Defendant relies heavily on the case of State v. Durein, 65 Kan. 700, 70 P. 601, to support her position. In Durein a district court conviction, after an appeal from a justice of the peace, was reversed for two reasons: (1) the justice of the peace was permitted to certify the complaint after the jury had been impaneled and examination of a state's witness had been commenced and (2) the justice of the peace was outside his township of office when he certified the complaint.

On the first point this court said in the opinion that there is no rule which will give the certification of a complaint during a trial 'relation back as of the time it should have been filed or certified.' The relation back spoken of referred to the fact the trial had commenced and jeopardy attached in Durein, rather than that a term of court had expired.

In the instant case the state's request for permission to correct the certification was made prior to trial and the magistrate was within his jurisdiction.

In City of Salina v. Laughlin, 106 Kan. 275, 187 P. 676, a defendant went to trial in district court on an uncertified complaint without making an objection. On appeal this court held that under such circumstances the defendant had waived the lack of certification and stated in the opinion:

'* * * Had the attention of the court been challenged to the matter now complained of, it would have been the duty of the court to postpone the proceedings and order the complaint and warrant properly certified. (State v. Plomondon, 75 Kan. 853, 90 P. 254.) * * *.' (p. 276, 187 P. p. 677.)

In the Plomondon case the objection was made prior to trial, as in this case. The defendant-as here-cited State v. Anderson, 34 Kan. 116, 8 P. 275, and State v. Durein, supra, in distinguishing Plomondon from those cases the court said:

'* * * But here, before the trial commenced, the court postponed the proceedings in order that the justice before whom the first trial was had could attach his certificate and thus complete his transcript. This is the proper practice. The State v. Geary, 58 Kan. 502, 49 P. 596.)' (75 Kan. pp. 853, 854, 90 P. p. 254.)

A new term of the Reno district court commenced on September 23, 1968. The state's request to cure the certification was presented to the district court on the day set for trial, October 28, 1968. It appears the record had been promptly, though incorrectly, certified up from the magistrate court. The defendant filed a motion to suppress evidence on September 24, 1968. The motion was heard and denied on September 27, and the case set for trial on October 28, 1968.

Obviously, no time was lost because of certification by the clerk rather than the magistrate. There is no indication whatsoever that defendant could have been tried prior to October 28, 1968.

State v. Brockelman, 173 Kan. 469, 249 P.2d 692, is the only case called to our attention in which the time requirement of 63-401, supra, is discussed by this court. There the justice of the peace failed to certify the transcript to district court for a period of more than one year because of the county attorney's direction to hold up the case. The duty of the justice of the peace to certify the transcript to the district court on or before the next term...

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