State v. Daegele

• Decision Date: 14 July 1964
• Docket Number: No. 43114,43114
• Citation: 393 P.2d 978,193 Kan. 314
• Parties: STATE of Kansas, Appellee, v. George William DAEGELE, Appellant.
• Court: Kansas Supreme Court

Page 978

393 P.2d 978

193 Kan. 314

STATE of Kansas, Appellee, v. George William DAEGELE, Appellant.

No. 43114.

Supreme Court of Kansas.

July 14, 1964.

Syllabus by the Court

In an appeal by defendant following his conviction upon his plea of guilty to the charge of forcible rape, the record is examined and, all as fully set forth in the opinion, it is held that the trial court did not err in any of the matters specified.

James W. Paddock, Lawrence, argued the cause and was on the brief for appellant.

Ralph M. King, Jr., County Atty., argued the cause, and William M. Ferguson, Atty Gen., and Daniel A. Young, Asst. County Atty., were with him on the brief for appellee.

PRICE, Justice.

The defendant, George William Daegele, upon his plea of guilty, was convicted in the district court of Douglas county of the offense of forcible rape (G.S.1949, 21-424).

Throughout all proceedings in the district court defendant was represented by counsel.

Following imposition of sentence to the state penitentiary defendant, pro se, filed a notice of appeal to this court. The appeal was regularly heard at the November, 1962, session.

On December 8, 1962, the appeal was dismissed by this court for failure to comply with the rules of appellate procedeure, and this court's opinion is found at State v. Dagele, 190 Kan. 613, 376 P.2d 807.

Defendant subsequently filed with the Supreme Court of the United States a petition for a writ of certiorari. On October 14, 1963, that court entered a per curiam order, the pertinent portion of which reads:

'The motion for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted. The judgment is vacated and the case is remanded to the Supreme Court of Kansas for further consideration in light of Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811.'

such order being found at 375 U.S. 1, 84 St.Ct. 89, 11 L.Ed.2d 44.

Pursuant to the foregoing order of the Supreme Court of the United States, this court, on January 14, 1964, reinstated the appeal and issued an order directing the district court of Douglas county to appoint counsel to represent defendant in the appeal so reinstated (see Prefatory Rule 1(f), 191 Kan. XII).

In compliance with such order the district court of Douglas county appointed James W.Paddock, a regularly practicing attorney of that county, to represent defendant on appeal. Mr. Paddock prepared and filed an abstract and brief and orally argued the appeal at the June, 1964, session of this court.

Defendant's first contention concerns his representation by counsel at his preliminary examination.

The record shows that the preliminary examination was held on July 21, 1961, in the county court of Douglas county, at which time the defendant was present in person and represented by Mr. Hale W. Brown, an attorney of Kirkwood, Missouri. It appears that Mr. Brown had been retained by members of defendant's family. No request was made for the appointment of counsel. The state presented its evidence and rested. Defendant offered no evidence. At the conclusion of the hearing defendant was bound over for trial at the November, 1961, term of the district court on the charges of kidnapping in the first degree and forcible rape.

It is argued that under the provisions of G.S.1949, 7-104, and Rule No. 54 (188 Kan. XXXV), relating to the association of local counsel with out-of-state counsel in any action or proceeding in courts of this state, Mr. Brown, the Missouri attorney, thus had no 'standing' to represent defendant at his preliminary examination, absent a local attorney being associated with him, and thus it inferentially is contended that the preliminary examination amounted to a nullity.

There are several reasons why such contention is without merit and cannot be sustained.

In the first place, under the law of Kansas a preliminary examination is not a 'trial' in the ordinary sense of the word. (State v. Badders, 141 Kan. 683, 42 P.2d 943.) The purpose of a preliminary examination for one charged with a felony is to determine whether an offense has been committed and whether there is probable cause for charging a defendant with the commission thereof. The proceeding is not a trial in the sense that one may be found 'guilty.' A defendant is bound over for trial only where the state establishes that an offense has been committed and that there is probable cause for charging him with its commission--otherwise he is to be discharged. (G.S.1949, 62-618.) Under the provisions of G.S.1949, 62-615, a defendant has the right to be assisted by counsel at a preliminary examination, but there is no statute requiring the appointment of counsel in such a proceedig, and it has been held many times that failure to appoint counsel at a preliminary examination is not error. (Fry v. Hudspeth, 165 Kan. 674, 676, 197 P.2d 945; Martin v. Edmonson, 176 Kan. 374, 270 P.2d 791; State v. Crowe, 190 Kan. 658, 378 P.2d 89, and State v. Naillieux, 192 Kan. 809, 391 P.2d 140.) Moreover, the well-established rule is that any so-called alleged 'irregularity' pertaining to a preliminary examination is deemed to be waived where a defendant enters a voluntary plea of guilty in the district court. (Cooper v. Hudspeth, 166 Kan. 239, 240, 199 P.2d 803; Foster v. Hudspeth, 170 Kan. 338, 224 P.2d 987 [petition for writ of certiorari dismissed on motion of petitioner, 340 U.S. 940, 71 S.Ct. 503, 95 L.Ed. 678; Plasters v. Hoffman, 180 Kan. 559, 560, 305 P.2d 858, and Thomas v. Hand, 184 Kan. 485, 337 P.2d 651.)

Here the defendant was represented at his preliminary examination by counsel retained by his family. He therefore was not 'indigent' in the strict sense of the word. And even though he could have been classed as indigent--no request was made for the appointment of counsel. Moreover, even though a request had been made, the law did not require appointment of counsel. And finally, his voluntary plea of guilty in the district court amounted to a waiver of any claim of irregularity with respect to his preliminary examination.

It next is contended the trial court erred in not making investigation concerning defendant's mental condition prior to accepting his plea of guilty, and our attention is directed to G.S.1949, 62-1531, which, in material part, provides that whenever any person under indictment or information, and before or during the trial, shall be found by the court or by a commission empaneled for such purpose to be insane and unable to comprehend his position and to make his defense, the court shall forthwith commit him to the state hospital for the dangerous insane for safekeeping and treatment until such person shall recover, at which time he is to be returned to the court and placed on trial upon the indictment or information.

The record shows that prior to the entry of the plea of guilty no question as to defendant's mental condition or as to his ability to comprehend his position and make his defense, was raised. And, with respect to the point that the trial court, on its own motion, should have ordered an inquiry concerning defendant's mental condition, see the...