State v. Chuning

• Decision Date: 10 June 1967
• Docket Number: No. 44712,44712
• Parties: STATE of Kansas, Appellee, v. Rudy V. CHUNING, Appellant.
• Court: Kansas Supreme Court

Page 843

428 P.2d 843

199 Kan. 215

STATE of Kansas, Appellee, v. Rudy V. CHUNING, Appellant.

No. 44712.

Supreme Court of Kansas.

June 10, 1967.

Rehearing Denied July 29, 1967.

Syllabus by the Court

1. In a criminal action the constitutional rights of a defendant to a speedy trial are not violated where a delay in arrest is caused by his absence from the state.

2. An information charging robbery in the first degree under K.S.A. 21-527 is examined and held to be substantially in the language of the statute and to charge an offense thereunder with enough clarity and detail to inform the defendant of the criminal act with which he is charged.

Marion W. Chipman, Olathe, argued the cause, and Eugene T. Hackler, John Anderson, Jr., Wilson E. Speer, and Joseph N. Vader, Olathe, were with him on the briefs, for appellant.

Hugh H. Kreamer, Asst. County Atty., argued the cause, and James W. Bouska, County Atty., and Robert C. Londerholm, Atty. Gen., were with him on the briefs, for appellee.

KAUL, Justice.

The defendant, Rudy V. Chuning, appeals from a conviction of robbery in the first degree. (K.S.A. 21-527.)

Two specifications of error are assigned by defendant. He first contends he was denied a speedy trial as provided by the Sixth Amendment to the Constitution of the United States and Section 10 of the Bill of Rights of the Constitution of Kansas. This issue was presented to the trial court by defendant in a motion to dismiss which was argued and overruled and was raised again on motion for a new trial.

Defendant's complaint is not aimed at delay in bringing him to trial after his arrest. He claims he was deprived of his right to a speedy trial by reason of the fact that he was not arrested until more than three years after a complaint was filed against him. In this connection the record shows a complaint was filed on March 14, 1962, charging defendant with the commission of a crime on August 6, 1961. A warrant was issued on the same day but defendant was not arrested pursuant thereto until July 8, 1965.

The only facts disclosed by the record pertaining to the delay in the arrest of defendant are to be found in the statements of counsel in their arguments on defendant's motion to dismiss before the trial court prior to the trial. In his motion to dismiss the defendant claimed the court had lost jurisdiction because of delay in arresting him.

Defendant's counsel stated that after the alleged crime the defendant resided continually in Kansas City, Missouri, and that during this period the defendant got into some difficulty in the State of California. Defendant's counsel further stated that defendant was arrested by agents of the Federal Bureau of Investigation on a fugitive's warrant and was confined in the county jail of Jackson County, Missouri; that defendant was then given a choice to either go back to the State of California as a parole violator or be returned to Johnson County, Kansas, to face the charge herein. Defendant's counsel further stated that defendant elected to go back to California and, therefore, the State of Kansas waived custody of defendant and lost jurisdiction.

The county attorney in his argument to the trial court in opposing the motion to dismiss stated that defendant had been released to the sheriff of Los Angeles County under a Missouri Governor's warrant and that the State of Kansas never had custody, actual or constructive, of defendant until he was released by California authorities to Kansas on July 6, 1965. This statement has not been denied by defendant.

The county attorney further stated that after the complaint was filed a warrant was issued and delivered to Missouri authorities. When no arrest was made the county attorney requested the issuance of a federal unlawful flight warrant by the United States District Attorney. This warrant was issued and the arrest finally made in Jackson County, Missouri, by officers of the Federal Bureau of Investigation. The county attorney argued that the State of Kansas could have done nothing more than was done to secure the arrest and custody of defendant and, therefore, no Kansas official was guilty of laches.

After hearing the statements of counsel the trial court ruled as follows:

'Well, gentlemen, irrespective of statements of counsel, I think the papers and pleadings filed in the case and in the absence of evidence to the contrary, govern in a situation such as this. The file indicates that a warrant in this case was issued on the 14th day of March, 1962. That it was served by the Sheriff of Johnson County, Kansas, on the same date and that on the 8th day of July, 1965, the same was executed by arresting the within named Rudy Chuning and bringing him before the Magistrate Court. Signed Lynn Thomas, Sheriff by Ralph E. Burger, Deputy Sheriff. I feel that must govern. There is ample law to the effect that once a warrant is issued that that stays the proceedings and it has been admitted in this case that the defendant was outside the state. Accordingly, the defendant's motion to dismiss is by the Court considered and overruled.'

In his brief defendant admits that in most cases where a defendant successfully claimed a deprivation of the constitutional guarantee of a speedy trial, the holding was based on a lapse of time between arrest and trial. Defendant urges, however, that we consider the long delay in his case between the filing of the complaint and defendant's arrest as constituting a deprivation of his constitutional right to a speedy trial.

In support of his argument defendant cites 21 Am.Jur.2d, Criminal Law, p. 283 § 248, and a quotation from an annotation on the subject appearing in 85 A.L.R.2d p. 980. The authorities cited by defendant indicate that in some cases it has been held that once an indictment or other formal charge, such as the filing of a complaint, has been returned or made against an accused the right to speedy trial may be violated by unreasonable delay in making the arrest.

The principle framed by authorities cited by defendant is qualified by those same authorities to the effect that if the accused has avoided arrest then the period of delay does not count.

We believe it is clear from the record in this case that the delay in arrest was caused by defendant's absence from the State of Kansas. Under such...