State v. Carte
| Decision Date | 12 June 1943 |
| Docket Number | 35892. |
| Citation | 138 P.2d 429,157 Kan. 139 |
| Parties | STATE v. CARTE. |
| Court | Kansas Supreme Court |
Rehearing Denied July 7, 1943.
Syllabus by the Court.
When a valid judgment and sentence has been rendered in a criminal case, trial court has no authority, after sentence imposed has been served in whole or in part, to set sentence aside and hear additional evidence and impose new sentence, though new sentence is imposed at same term of court. Gen.St.1935 62-1518.
Generally prior jeopardy is an "affirmative defense" and must be raised by special plea.
The defense of prior jeopardy may be waived.
Pleas of guilty to two of the three counts of an information charging manslaughter in the fourth degree constituted a "waiver" of the defense of prior jeopardy to the two counts.
Where accused was charged, in information containing three counts with manslaughter in the fourth degree, the three counts being based on deaths of three different persons in same automobile collision, and accused pleaded guilty on all counts and was sentenced and taken to prison on commitment regularly issued, trial court was without power four days later at the same term to modify original sentences and allow accused to withdraw pleas to two of the counts. Gen.St.1935 21-420, 21-423, 62-1414, 62-1518, 62-1604.
1. The defense of prior jeopardy may be waived.
2. Entering a plea of guilty constitutes waiver of such defense.
3.Following Parks v. Amrine, 154 Kan. 168, 117 P.2d 586: When a valid judgment and sentence has been rendered in a criminal case the court has no authority after the sentence imposed has been served, in whole or in part, to set it aside and impose a new sentence, even though this be done at the same term of court.
4. Defendant was charged, on three counts, with violation of G.S.1935 21-420. Each count was based on the death of one of the three persons who had been instantly killed in an automobile collision. A plea of guilty was entered on all three counts. Following the pleas, and before sentence, counsel for defendant contended that the facts alleged in the information constituted only one offense, that trial on the first count constituted prior jeopardy as to the second and third counts, and that the defendant could not lawfully be sentenced on the second and third counts. The court held against the contention and sentenced the defendant on each of the three counts, the sentences to run consecutively. The defendant was taken to prison upon commitment regularly issued. Four days later, and within the same term the trial court, on its own motion, issued an order for the return of the prisoner on the ground that its decision on the question, above stated, had been erroneous. The prisoner was returned, was permitted to withdraw her pleas as to the second and third counts and the sentences on those counts were set aside. The first sentence on the first count was permitted to stand. Held, under the rule stated in paragraph 3, supra, the trial court was without power to set aside or modify the original sentence.
Appeal from District Court, Sedgwick County, Division 2; Robert L. NeSmith, Judge.
Mrs. Cecil Carte, whose real name is Katherine Carte, was charged in an information with manslaughter in the fourth degree. From a judgment setting aside the sentences imposed on the second and third counts of the information, and permitting the accused to withdraw her pleas of guilty as to such counts, the State appeals.
Reversed.
Pat Warnick, of Wichita (A. B. Mitchell, Atty. Gen., and L. M. Kagey, Carl O. Bauman, Fred M. Field, and Roy L. Rogers, all of Wichita, on the brief), for appellant.
Clarence R. Sowers, of Wichita (Sowers & Sowers, of Wichita, on the brief), for appellee.
We are asked to determine whether, under the facts presently to be stated, a trial court, after sentencing a defendant on three separate counts in an information, had the power, during the term at which the sentence was imposed and after the defendant had begun serving the sentence, to reduce the sentence by setting aside and vacating the sentences as to the second and third counts. The appeal is by the state from the attempted exercise of such power.
On October 11, 1942, a car driven by the appellee, Mrs. Carte, struck another car at a highway intersection about five miles north of Wichita, Kansas, three persons in the other car being instantly killed by the collision. Information was issued by the county attorney charging her on three counts with manslaughter in the fourth degree, under G.S.1935, 21-420, which reads as follows: "Every other killing of a human being, by the act, procurement or culpable negligence of another, which would be manslaughter at the common law, and which is not excusable or justifiable, or is not declared in this article to be manslaughter in some other degree, shall be deemed manslaughter in the fourth degree."
The three deaths constituted the basis for charging the defendant on three counts--each of the three deceased persons being named in a separate count. In all other particulars the three counts were identical.
The case came on for trial on January 27, 1943, and a jury was impaneled. After the state had introduced some evidence the defendant entered a plea of guilty on each of the three counts and was thereafter sentenced on each of the three counts to the State Industrial Farm for Women at Lansing, Kansas, "to be there confined according to law", the three sentences to run consecutively. The penalty in this state for manslaughter in the fourth degree is "confinement and hard labor for a term not exceeding two years, or by imprisonment in the county jail not less than six months". G.S.1935 21-423.
Following the pleas of guilty, counsel for the defendant argued to the trial court that only one offense had been committed by the defendant; that plea of guilty on the first count barred prosecution on the second and third counts, being second jeopardy for the same offense, and that such second and third pleas were wrongful because she had been wrongfully charged on such counts. The trial court did not agree with the defendant's contention and commitment was regularly issued by the clerk the same day, January 27, directing the sheriff to take the prisoner to Lansing. There was no formal motion to withdraw the pleas on the second and third counts, no motion for a new trial, and as far as we are advised, no notice of appeal to this court from the sentences on the second and third counts. On the next day, January 28, the sheriff was directed by the court to proceed with the prisoner to Lansing and apparently he complied at once. However, four days later, on February 1, the court reopened the case upon its own motion and the following journal entry shows what then transpired:
The prisoner was brought back from Lansing and the matter again came on for hearing on February 10. Pertinent excerpts from the record then made are as follows:
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