State v. Clifton, 10679

CourtUnited States State Supreme Court of Kansas
Writing for the CourtALLEN, J.
Citation57 Kan. 448,46 P. 715
Decision Date07 November 1896
Docket Number10679

46 P. 715

57 Kan. 448



No. 10679

Supreme Court of Kansas

November 7, 1896

Decided July, 1896.

Appeal from Geary District Court Hon. O. L. Moore, Judge.


Judgment reversed.

C. A. Kimball, for appellant.

John T. Dixon, County Attorney, for the State.

ALLEN, J. All the Justices concurring.



The defendant was charged, by the County Attorney of Geary County, with having assaulted one James Gage, with intent to kill him. A motion was filed by his attorney to quash the information on various grounds. This motion was argued by counsel, submitted to the Court, and overruled, when the defendant was not present, but was in confinement in the county jail. Afterward he was tried, convicted, and sentenced to imprisonment in the penitentiary for five years. A motion for a new trial was filed on the ground, among others, that the defendant was not [57 Kan. 449] personally present during every part of the trial; but the motion was overruled.

Section 207 of the Code of Criminal Procedure provides that "no person indicted or informed against for a felony, can be tried unless he be personally present during the trial." This means throughout the whole trial. The State v. Myrick, 38 Kan. 238, 16 P. 330. In the Code of Civil Procedure, section 265, a trial is thus defined: --"A trial is a judicial examination of the issues, whether of law or fact, in an action." In the case of The State v. Kendall, 56 Kan. 238, 42 P. 711, it was said that "a motion to quash the charge or information is an issue joined between the state and the defendant," and it was strongly intimated that the personal presence of the defendant at the hearing of a motion to quash the information is indispensable. That this is the law appears to be well settled. 1 Bishop, Crim. Proc. § 269. On the hearing of a motion to quash an information, the issues of law relating to the criminality of the acts of the defendant, charged in the information, are tried and determined by the court. If the motion is sustained the prosecution terminates, unless the information be amended. The decision on such a motion is not merely a determination of a matter preliminary to the trial, but is a part of the trial itself within the meaning of this section of the statute, and disposes of the issues of law arising on the information. When the trial commences so that the defendant is placed in jeopardy, within the...

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7 cases
  • State v. Neal, 38246.
    • United States
    • United States State Supreme Court of Missouri
    • March 25, 1943
    ...they be issues of law or fact." The issues raised by a motion to quash an information are issues of law. Appellant cites State v. Clifton, 57 Kan. 448, 46 Pac. 715, which upholds his contention under a similar statute; also some other foreign decisions and several early Missouri cases, whic......
  • State v. Neal, 38246
    • United States
    • United States State Supreme Court of Missouri
    • March 25, 1943
    ...... motion on April 18, when the defendant was absent from the. courtroom. In State v. Clifton, 46 Pac. l. c. 715;. State v. Buckner, 25 Mo. 167; State v. Schoenwald, 31 Mo. 147; State v. Braunschweig, . 36 Mo. 397; State v. Ott, 49 ......
  • State v. Woolsey
    • United States
    • Supreme Court of Utah
    • June 1, 1899
    ...... Gore v. Arkansas, 5 L.R.A., 834 (see note); Rev. St., 4811; Territory v. Day, 2 Okl., 409; Le Roy. v. Territory, 3 Okl., 596; State v. Clifton, 57. Kan. 448; State v. Myrick, 38 Kan. 238;. Territory v. Lopez, N. M., 156; Smith v. People,. 8 Col., 457; Hopt v. Utah 4 S.Ct. Rep., 204. . . ......
  • State v. Mantz, 48551
    • United States
    • United States State Supreme Court of Kansas
    • June 11, 1977
    ...while the defendant is absent and under confinement in jail." (Syl. 1.) The Myrick case was cited with approval in State v. Clifton, 57 Kan. 448, 46 P. 715, wherein the hearing on a motion to quash the information in a felony prosecution was held to be a part of the trial requiring the defe......
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