State v. Collins

• Decision Date: 07 December 1965
• Docket Number: No. 44283,44283
• Citation: 195 Kan. 695,408 P.2d 639
• Parties: The STATE of Kansas, Appellant, v. James E. COLLINS, Appellee.
• Court: Kansas Supreme Court

Page 639

408 P.2d 639

195 Kan. 695

The STATE of Kansas, Appellant, v. James E. COLLINS, Appellee.

No. 44283.

Supreme Court of Kansas.

Dec. 7, 1965.

Rehearing Denied Jan. 6, 1966.

Syllabus by the Court

1. A defendant who has appealed a conviction from a magistrate's court is not entitled, as a matter of right, to have the appeal dismissed where the dismissal would result in prejudice to the state.

2. The judicial discretion with which a court is vested is one to be exercised not arbitrarily, but soundly, and with due regard to what is right and equitable under the circumstances and the law.

3. The record is examined and it is held: That the trial court erred in sustaining the defendant's motion to dismiss a part of his appeal which pertained to but one charge, where such partial dismissal would result, as held by the court, in barring prosecution of the defendant on the remaining charge.

Richard J. Rome, County Atty., Hutchinson, argued the cause, and Raymond F. Berkley and Lane H. Cronhardt, Asst. County Attys., Hutchinson, with him on brief for appellant.

Abraham Weinlood, Bill R. Cole, D. Stewart Oswalt, and John H. Shaffer, Hutchinson, on brief for appellee.

FONTRON, Justice.

This is an appeal by the State of Kansas, pursuant to K.S.A. 62-1703, from an adverse ruling of the District Court of Reno County, Kansas. For convenience, the appellant will be referred to as the state, and the appellee as the defendant.

The material facts are not in dispute. On December 2, 1964, a complaint, containing three counts, was filed against the defendant in the City Court of Hutchinson, Kansas. Count I charged the defendant with being drunk on public highway U.S. 50, 1.5 miles west of Hutchinson, on or about September 26, 1964; Count II charged that, at the same time and place, the defendant drove a motor vehicle while under the influence of intoxicating liquor; and Count III charged defendant with failing to drive at a reduced speed when approaching and going ground a curve.

Upon trial in city court, the defendant was found guilty of Counts I and II and sentenced accordingly; on Count III, he was found not guilty. From his conviction, the defendant appealed to district court. The matter first stood for trial at the January 1965 term of court, but was continued over that term because the state was unable to subpoena an essential witness.

At the April term, the defendant, through counsel, moved to dismiss his appeal as to Count I, but not as to Count II. The state objected to this motion. After hearing arguments and taking the matter under advisement, the trial court entered judgment sustaining defendant's motion to dismiss his appeal on Count I and further ruled that, upon such dismissal, the sentence imposed by the city court on Count I precluded the state from further prosecuting the defendant on Count III. The latter ruling was predicated on the theory that double jeopardy was involved under the decision of State v. McLaughlin, 121 Kan. 693, 249 P. 612.

The state takes a jaundiced view of the court's ruling, the obvious net effect of which is to release the defendant entirely from the charge of driving while intoxicated. Two errors are specified: First, that the trial court erred in sustaining the defendant's motion to dismiss his appeal as to Count I, and second, that the court erred in ruling that, upon the dismissal of the defendant's appeal as to Count I, the state was barred from prosecuting the defendant on Count II.

We believe it may be said that, in general, a litigant who has taken an appeal may dismiss his appeal without the consent of the appellee. The right of dismissal is not, however, absolute or without limitation. The rule is aptly stated in 5 Am.Jur.2d, Appeal and Error, § 919, p. 350:

'In the absence of a statute expressly or impliedly prohibiting the withdrawal of an appeal or error proceeding, an appellant or plaintiff in error may ordinarily dismiss his appeal or writ of error without regard to the consent of the appellee or defendant in error, unless the latter will be prejudiced thereby. * * *' (Emphasis supplied.)

To guard against the possibility of prejudice, the prevailing rule requires that the considered consent of the court in which the appeal is pending shall be obtained before an effective dismissal can be accomplished. This view finds expression in 5 Am.Jur.2d, Appeal and Error, § 920, pp. 350, 351:

'Whether or not the appellant or plaintiff in error will be permitted to dismiss or withdraw his appeal or error proceeding is a matter within the discretion of the court, and not a matter of right on the part of the appellant or plaintiff in error, although it is usually granted unless some special reason for retaining the appeal is shown. The appellant must, accordingly, make application to the proper court for leave to dismiss, and show, if called upon, that no prejudice will result to the appellee or defendant in error or to coappellants.' (Emphasis supplied.)

The foregoing view, we believe, has peculiar application to appeals from convictions had in summary courts. In 22 C.J.S. Criminal Law, § 397, p. 1033, we find the principle phrased as follows:

'Accused cannot as a matter of right dismiss his appeal. The court to which the appeal is taken, not accused, is vested with the power of dismissal; an application therefor is addressed to the discretion of the court, and the court does not abuse its discretion in refusing a motion to dismiss. In jurisdictions where, on appeal, the case is tried de novo in the court to which the appeal is taken, accused occupies on the appeal the same relative position of accused, and has no greater right, in the absence of express statutory authority therefor, to have the appeal dismissed on his own motion than he had to have it discontinued below.'

A discussion of the rules summarized above is found in Dressman v. Commonwealth, 204 Ky. 668, 265 S.W. 3, where the defendant, who had appealed a conviction from police court, sought by motion to dismiss his appeal at the time his case was called for trial in circuit court. The defendant's motion to dismiss was overruled and this ruling was upheld by the Supreme Court on appeal. In its decision, the court said:

'The general rule appears to be, both in criminal and civil cases, that, where one prosecutes his appeal from a trial court to a court of purely appellate jurisdiction, he, as a matter of right, may dismiss his appeal in the appellate tribunal, unless by so doing the rights of the appellee are thereby affected. The reason of this is that he may at any time waive his right of appeal and elect to accept the judgment of the trial court as final.

'But where, he prosecutes an appeal from one inferior court to another, and in the latter court the whole matter is to be tried anew, when that court properly has the whole case before it for hearing as if it had never been heard in any other tribunal, there is no more reason that the one prosecuting the appeal should control the course of the litigation, and, as a matter of right, have his appeal dismissed, than there would be if the case had originated in the court to which he appealed it.' (p. 669, 265 S.W. 3.)

A similar opinion was expressed by the Mississippi court in Thigpen v. State, 206 Miss. 87, 39 So.2d 768, where, in deciding that the trial court had not abused its discretion in overruling a motion to dismiss an appeal, it said:

'This question has been set at rest in this State by the decision in Bang v. State, 106 Miss. 824, 64 So. 734. It was there decided that one appealing a conviction from the Justice of the Peace court to the Circuit Court stands there for trial de novo as defendant and he occupies in that court the same attitude of a defendant as he did in the court of the Justice of the Peace and as such is impotent to dismiss the case. He had no more right to dismiss the appeal in the Circuit Court than he had to enter a nolle prosequi in the court of the Justice of the Peace. No defendant charged with a crime for the commission of which he is upon trial has a right to dismiss the case from the docket. * * *' (p. 94, 39 So.2d p. 769.)

See also Wisehart v. State, 104 Ind. 407, 4 N.E. 156; NeSmith v. State, 28 Ala.App. 66, 178 So. 461; Peeples v. State, 216 Miss. 790, 63 So.2d 236.

A situation similar in many respects to the one presented here was considered in Seay v. Commonwealth, 155 Va. 1087, 156 S.E. 574. There, the defendant had been charged in one count with obstructing justice, a misdemeanor, and in a second count with aiding and abetting a violation of the liquor law, a felony. He was convicted in justice court on the first count and indicted on the second count, the indictment being filed in circuit court. Following his conviction in justice ...