State v. Cook, 44053

• Decision Date: 06 March 1965
• Docket Number: No. 44053,44053
• Citation: 399 P.2d 835,194 Kan. 495
• Parties: The STATE of Kansas, Appellant, v. Clarence E. COOK, Appellee.
• Court: Kansas Supreme Court

Page 835

399 P.2d 835

194 Kan. 495

The STATE of Kansas, Appellant, v. Clarence E. COOK, Appellee.

No. 44053.

Supreme Court of Kansas.

March 6, 1965.

Syllabus by the Court

1. When an officer, pursuant to the procedures set out in the uniform act regulating traffic on highways, now found in K.S.A. 8-5,128-8-5,130, stops a motorist for a traffic violation, issues him a 'notice to appear and complaint,' and then releases such motorist on his written promise to appear, an arrest may be said to have been effected.

2. Under the facts and circumstances set forth in the opinion, the offense for which the defendant was arrested in this case is deemed to have been committed in the presence of the arresting officer.

3. The jurisdiction of a district court to try a person accused of crime is not divested by the fact that his original arrest may have been unlawful.

Keith Sanborn, County Atty., Wichita, argued the cause, Robert C. Londerholm, Atty. Gen., and Robert E. Hoffman, Asst. Atty. Gen., Topeka, and Kenneth L. Ingham, Deputy County Atty., and Guy L. Goodwin, Sp. State Prosecutor, Wichita, with him on the brief, for appellant.

Earl M. Clarkson, Jr., Wichita, argued the cause, Wilmer E. Goering and I. D. Brown, Wichita, with him on the brief, for appellee.

FONTRON, Justice.

This is an appeal by the State of Kansas from an order of the trial court sustaining a motion to discharge the defendant, Clarence E. Cook. For convenience, the appellant will be designated throughout this opinion as the State, while the appellee, Cook, will be referred to as the defendant.

The history of this case, which appears in this court for the second time, is briefly as follows: In an information filed directly in the district court of Sedgwick county, Kansas, the defendant was charged with the commission of a misdemeanor, i. e., speeding. The information was signed by Guy L. Goodwin, deputy county attorney of Sedgwick county, and was verified positively by Paul Wade, a member of the Kansas Highway Patrol. After the information was filed, the defendant appeared with counsel and moved to quash the information. This motion was sustained, and the State appealed from that ruling. On appeal, the action of the trial court was reversed and the case remanded for further proceedings. (State v. Cook, 193 Kan. 541, 393 P.2d 1017.)

Subsequently, the case came on for trial, at which time the defendant appeared only by counsel. Through his counsel, the defendant stood mute and the court entered a plea of not guilty for him. Trial was had to the court without a jury and at the completion of the State's evidence the court sustained defendant's motion for discharge. The sole question presented in this appeal is succinctly stated in the defendant's brief, as follows: Did the trial court properly sustain defendant's motion for discharge?

The motion to discharge is as follows:

'Comes now the defendant, Your Honor, and moves to discharge the defendant for the reason that there has been no showing that a crime or misdemeanor has been committed by the defendant. And for the reason, Your Honor, that the arresting officer was three and a half miles from the scene of any even alleged violation; that it was not committed in his view or presence; that he is the signer, first, of the Uniform Notice to Appear; that he is also the signer of the Affidavit of the Information. That the evidence shows that he has no knowledge of it.'

The trial court ignored the first ground stated in the motion, and no reliance is placed on that ground here. The sole and clearly stated basis of the trial court's decision, and the single argument made by the defendant in support of the lower court's action, is that the defendant's arrest was illegal. This claim of illegality is two-pronged: First, that whatever arrest was made by trooper Wade when he stopped the defendant's car was illegal because no offense had been committed in the officer's presence; and second, that any arrest which resulted from the filing of the information was void because Wade had verified the information without having personal knowledge of the facts alleged. On the second point, it may be said that the record wholly fails to disclose that a warrant was ever issued on the information, or that the defendant was ever arrested and brought into court on a warrant. However, this is immaterial in view of the decision we have reached in this case.

A proper understanding of the issues presented requires a brief resume of the State's evidence. On November 6, 1963, the date of the alleged offense, three members of the Kansas Highway Patrol were checking traffic on U.S. Highway 81, north of Wichita. Two of the state troopers were in an aircraft, while the third trooper, Paul Wade, was stationed on the ground approximately one-half mile north of the Sedgwick-Harvey county line. The two air-borne officers observed a northbound, dark red colored vehicle, which they followed some three miles to the Sedgwick county line, checking its speed by means of stop watches against previously established highway markings. By such means, the speed of the car was determined to be 76 miles per hour. Keeping the vehicle in sight, the two officers radioed Wade, who then stopped the car about one-half mile north of the county line and issued the defendant a document denominated, 'Uniform Notice To Appear and Complaint.'

In this somewhat hybrid instrument the officer charged the defendant with speeding and directed him to appear in the Court of Common Pleas at Wichita on November 15, 1963. The defendant signed a promise to appear at such place and time.

Subsequently, in January, 1964, the information hereinbefore mentioned was filed. This was verified by Wade, and charged the defendant with driving on U.S. Highway 81, at 101st Street in Sedgwick county, at a speed of 76 miles per hour in a 65 mile per hour speed zone. Wade testified at the trial that he first saw the defendant's car at about the county line and did not, of his own personal knowledge, observe the offense with which he charged the defendant.

The State first argues that the issuance of the traffic ticket, by which we presume is meant the notice to appear and complaint, did not constitute an arrest for a misdemeanor not committed in the issuing officer's presence. In support of this argument, two propositions are advanced: First, that no arrest was actually effected by the issuance of the ticket, and second, that even though an arrest was thus consummated, the offense charged was committed in the presence of Wade.

We approach a discussion of the first proposition by examining the pertinent provisions of the uniform act regulating traffic on highways. G.S.1949, 8-5,128 (now K.S.A. 8-5,128) provides, in substance, that whenever any person is arrested for a misdemeanor in violation of the act and demands an immediate hearing, he shall immediately be taken before a court within the county in which the offense is alleged to be committed, while G.S.1961 Supp., 8-5,129 (now K.S.A. 8-5,129) provides that whenever the person arrested is not given an immediate hearing, the officer shall prepare a written notice for him to appear in court at a specified time and place, on the offense charged, and may require that a cash bond be given for appearance. Subsection (1)(d) of 8-5,129, supra, reads as follows:

'The arrested person in order to secure release as provided in this section, must give his written promise so to appear in court by signing in duplicate the written notice prepared...