State v. Coover
| Decision Date | 08 May 1948 |
| Docket Number | 37133. |
| Parties | STATE v. COOVER. |
| Court | Kansas Supreme Court |
Appeal from District Court, Ceary County; James P. Coleman, Judge.
Ed Coover was charged with having forged a check, and from a judgment sustaining his motion for discharge, the State of Kansas appeals.
Syllabus by the Court.
1. An 'application' for a continuance, as the term is used in G.S.1935, 62-1431, is not made, as a matter of law, by a prisoner who escapes and is not returned until the first five days of a term of court have expired in the absence of any other showing that the prisoner could not have been prosecuted during the remaining two months, three weeks and four days of the term.
2. When a prisoner is in jail during the above-stated time and such time is a part of a term subsequent to the term during which the information was filed, and is also imprisoned during all of another subsequent term without being prosecuted, the delay entitles the prisoner to be discharged in compliance with the above-cited statute unless the prisoner consents to the delay or makes an application therefor.
Roy W Cliborn, Special Prosecutor, of Junction City (Edward F. Arn Atty. Gen., on the brief), for appellant.
Lee Hornbaker, of Junction City, for appellee.
This appeal involves construction and application of our statute G.S.1935, 62-1431, which reads: 'If any person under indictment or information for any offense, and committed to prison, shall not be brought to trial before the end of the second term of the court having jurisdiction of the offense which shall be held after such indictment found or information filed, he shall be entitled to be discharged so far as relates to the offense for which he was committed, unless the delay shall happen on the application of the prisoner, or shall be occasioned by the want of time to try the cause at such second term.' (Emphasis supplied.)
Counsel appointed for the appellee by the district court filed a motion for his discharge which was sustained because the evidence disclosed that the appellee, without any application by him for delay and without his consent, had been imprisoned during two terms without having been brought to trial. The county commissioners had engaged a special prosecutor in the case because of the disqualification of the county attorney. Such counsel for the state reserved the question presented; the state has appealed and asserts that the trial court erred in sustaining the appellee's motion for discharge.
The question presented develops from some rather unusual and perhaps interesting facts. The appellee was arrested and placed in jail on April 5, 1944. Five weeks later a complaint was filed and a warrant was issued for his arrest on May 10, 1944. He was given a preliminary hearing on June 14th and was bound over to the district court for trial and on the same date an information was filed in the district court which charged the appellee with having forged a check in the amount of $19.85. The appellee did not give bond and consequently, remained in jail for a while. No commitment whatever of the appellee to the county jail was issued by the judge of the county court who bound him over. More than three years after his arrest, a commitment was issued on June 9, 1947, by the district court. The failure to issue earlier any commitment, however, is only incidental to the appeal but will be commented upon later. The case finally was called for trial in the district court on November 18, 1947, at which time the appellee's motion for discharge was sustained. During the three years and seven months after his arrest, the appellee had been walking in and out of jail. Evidently he was an untrustworthy trusty and had a habit of taking long walks on holidays. The record discloses that he first walked away from jail on the Fourth of July, 1944. As a consequence, he was not in custody during the November, 1944 term or during any of the 1945 terms of the court. On March 9, 1946, he was picked up by an agent of the Kansas Bureau of Investigation at Herington, and on such date returned to jail, where he remained until Labor Day, September 2, 1946, at which time the appellee again wandered away, with the result that he was not apprehended until May 15, 1947, at Abilene, Kansas, and was then returned to jail at Junction City. After his last return the state attempted to prosecute him for jail-breaking but in connection therewith it was discovered that the appellee had not been lawfully committed to legal custody at the times he had voluntarily stopped accepting any benefactions from his bastile and, consequently, such prosecution proceedings were dismissed by the state. (Those interested in such feature of the case should read State v. Lewis, 19 Kan. 260, 27 Am.Rep. 113, and particularly Ironquill's report in rhyme on the case published in 19 Kan. at page 266, 27 Am.St.Rep. 113.) The record also discloses that notwithstanding the prisoner's pedestrian proclivity, he resided in the county jail continuously during the March, 1946 term, which began March 4th, from March 9th until such term ended on June 3rd. In other words, during such term he was in jail for a period of two months, three weeks and four days. He also saw fit to remain confined during all of the June, 1946 term, but a controversy develops in the record as to whether the case against him was continued during such term at his request or otherwise until the November, 1946 term. A journal entry, which was not filed until nearly a year and a half after the June, 1946 term began, recites that the case was continued at the appellee's request from the June, 1946 term until the following November term. Since the trial court did not make a finding to the contrary, we must accept the record was recited in the journal entry. When the November, 1946 term began, the appellee was away on his second walking expedition, and as before stated, he was not returned to jail until May 15, 1947, and for such reason he was not tried during either the November, 1946 term or the March, 1947 term of the court. The appellee remained in custody or confinement during all of the June, 1947 term and at such term the case against him was continued, upon the request of the state, until the November, 1947 term because of the disqualification of the county attorney who, at one time, had been appointed by the court to represent the appellee. From the foregoing it appears, without any contradiction, that the appellee was an inmate of and was in regular attendance at the county jail during two months, three weeks and four days of the March, 1946 term of the court and during all of the June, 1947 term and that the case against him was not continued during either of such terms at his request. The general question presented is whether the recited circumstances entitled the appellee to be discharged by reason of the application of the statute. The more specific question presented is whether the appellee's absence during the first five days of the March, 1946 term resulted in his having voluntarily waived his right to be tried during such term by reason of his conduct.
Some confusion develops in the record as to whether a jury had been called at the...
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