State v. Carter

Decision Date12 February 1927
Docket Number26,599
Citation253 P. 551,122 Kan. 524
PartiesTHE STATE OF KANSAS, Appellee, v. SUSIE CARTER, Appellant
CourtKansas Supreme Court

Decided January, 1927.

Appeal from Shawnee district court, division No. 1; JAMES A MCCLURE, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. CONTINUANCE--Absence of Attorney--Discretion of Court. It is not necessarily an abuse of discretion for a trial court to refuse to grant a continuance in a criminal action on account of the absence of counsel for the defendant where the cause has been set for trial for a number of days, a fact which counsel either knew or should have known in ample time for him to have made some showing concerning the necessity of his absence on the day of trial, and the only application for continuance is an oral one made by the partner of the counsel for the defendant at the time the action is called for trial.

2. DRUGS--Unlawful Possession and Sale of Morphine--Evidence. The evidence was sufficient to sustain a conviction of the possession of morphine sulphate and of the sale of that drug.

3. CRIMINAL LAW--Trial--Argument to Jury--Reference to Marked Bills Used in Unlawful Sale. It was not error for counsel for the plaintiff to refer, in his argument to the jury, to marked one-dollar bills which had been used by the witnesses in the purchase of the morphine sulphate.

4. INDICTMENT AND INFORMATION--Verification--Waiver of Defect by Giving Bond for Appearance. Where a defendant gives bond for his appearance after his arrest under a warrant issued on an information which has been verified by the county attorney on information and belief, it is not error to deny the defendant's motion to quash the information where the only ground urged is the manner in which it was verified.

Elisha Scott and R. M. Van Dyne, both of Topeka, for the appellant.

Charles B. Griffith, attorney-general, and Paul H. Heinz, county attorney, for the appellee.

OPINION

MARSHALL, J.:

The defendant appeals from a conviction on three counts of violating the law prohibiting any person from having or keeping in his possession any opium, or coca leaves, or any compound, salt derivative, or preparation thereof, and prohibiting the sale of any of those drugs.

The first count charged the possession of opium, coca leaves, and of compounds and salt derivatives and preparations thereof. The second, third, and fourth counts charged sales of those drugs. The jury returned a verdict of guilty on the first, third, and fourth counts, and the defendant was sentenced thereunder.

1. When the trial was commenced, the defendant orally asked for a continuance on the following grounds:

"MR. VAN DYNE: Your Honor, the first thing I desire to call your attention to is that I do not represent these parties. I have never been employed in the case and I am not their attorney. It is true I am in the office of the lawyer that was employed. Mr. Scott was employed in this case shortly after their arrest, and I have never been paid one cent. Mr. Scott has no notice of this case being set. He left here a week ago last Tuesday and has been in Oklahoma. He was in Oklahoma City first and then went from there to Tulsa and he is now in Wewoka and on his way to Wakita, and is engaged in the trial of a case. He has had no notice and it is absolutely impossible for him to be here; also, on the Fleming case the people are here. They have looked for him to represent them. I have had no dealings with the people and I know nothing of the facts in the case other than in a summary way. I have had no opportunity to get ready for trial. I don't think in this case I can really do justice for these defendants. Mr. Scott is familiar with the facts and is prepared and ready for trial as soon as he returns to Topeka. . . . Now, I desire to request a continuance for the reason, first, that counsel representing the defendant has had no notice of any kind that the case was set for trial, and had he known of the case being set for trial, he would have been here and been ready; that he is now engaged in the trial of a lawsuit in Wewoka, Oklahoma, as I understand it, wherein parties by the name of Jones are involved. Those are the grounds I am asking a continuance on."

There was no written application for a continuance.

Section 62-1414 of the Revised Statutes provides that "continuances may be granted to either party in criminal cases for like causes and under the like circumstances as in civil cases." A continuance on the grounds stated in the application of the defendant is a matter largely within the discretion of the trial court. In Bliss v. Carlson, 17 Kan. 325, the court said:

"The matter of continuance is largely within the discretion of the trial court, and its ruling thereon will be sustained unless it appears that such discretion has been abused." (See, also, Nelson v. Hoskinson, 106 Kan. 601, 604, 189 P. 165; State v. Waldron, 118 Kan. 641, 645, 236 P. 855; Roseberry v. Scott, 120 Kan. 576, 581, 244 P. 1063. Numerous other cases might be cited.)

It was the duty of the defendant to know when her case was set for trial. It was not incumbent on the county attorney, the clerk of the district court, nor the court, to notify the defendant of that time. The fact that counsel for the defendant was then engaged in...

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  • City of Wichita v. Hibbs
    • United States
    • Kansas Supreme Court
    • March 4, 1944
    ... ... appellant when he, without objection, gave bond for his ... appearance in court. See, State v. Dye, 148 Kan ... 421, 429, 83 P.2d 113; State v. Toelkes, 139 Kan ... 682, 685, 33 P.2d 317; State ex rel. v. Strevey, 138 ... Kan. 646, 648, 27 P.2d 253; State v. Carter, 122 ... Kan. 524, 253 P. 551; State v. Edwards, 93 Kan. 598, ... 144 P. 1009 and State v. Miller, 87 Kan. 454, 124 P ... 361. Waived also by ... ...
  • State v. Barry, 41115
    • United States
    • Kansas Supreme Court
    • December 6, 1958
    ...Miller, 87 Kan. 454, 124 P. 361; State v. Edwards, 93 Kan. 598, 144 P. 1009; State v. Cole, 93 Kan. 819, 821, 150 P. 233; State v. Carter, 122 Kan. 524, 253 P. 551; State, ex rel. v. Strevey, 138 Kan. 646, 648, 27 P.2d 253; State v. Toelkes, 139 Kan. 682, 685, 33 P.2d 317; State v. Grady, 1......
  • State v. Smith, 38790
    • United States
    • Kansas Supreme Court
    • January 24, 1953
    ...be disturbed unless it appears that such discretion has been abused to the prejudice of substantial rights of a defendant. State v. Carter, 122 Kan. 524, 253 P. 551, and State v. Hill, 145 Kan. 19, 22, 64 P.2d 71. No such showing has been made here and defendant's contention in this respect......
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    • November 12, 1960
    ...are experienced lawyers and thoroughly competent to conduct the defense and to protect the rights of the accused. See also State v. Carter, 122 Kan. 524, 253 P. 551; State v. Miller, 131 Kan. 36, 289 P. 483; White v. Southern Kansas Stage Lines Co., 136 Kan. 51, 12 P.2d 713; Konitz v. Board......
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