State v. Earley
| Decision Date | 02 November 1963 |
| Docket Number | No. 43575,43575 |
| Citation | 192 Kan. 167,386 P.2d 189 |
| Parties | The STATE of Kansas, Appellee, v. James EARLEY, William Glenn Denney, and John Byers Finley, Appellants. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. In an action seeking the issuance of a writ of habeas corpus by one of three defendants arising out of a preliminary hearing on a charge of burglary, all as more fully narrated in the opinion, it is held, the trial court did not err in its order denying the issuance of the writ.
2. Rules regarding pleadings and evidence in a preliminary hearing before an examining magistrate discussed and adhered to.
Charles F. Forsyth, Erie, argued the cause, and Paul Armstrong, Columbus, was with him on the briefs for the appellants.
Keeth R. Jones, County Atty., argued the cause, and William Ferguson, Atty. Gen., was with him on the briefs for the appellee.
This is an appeal from the trial court's order denying the separate applications of the three defendants for the issuance of a writ of habeas corpus in which defendants contend they were bound over to the district court for trial from their preliminary hearing even though their arrest was illegal and the evidence obtained through search and seizure as a result of such illegal arrest was wrongfully obtained and inadmissible, and finally, that no probable cause existed for leading the officers to believe a crime had been committed which would make the arrest legal.
The only defendant with which we are presently concerned in this appeal is James Earley but for clarity we shall mention all three defendants in our discussion.
About two or three weeks prior to September 24, 1962, Ray Emmons was sent to Crawford county by the Kansas Bureau of Investigation for the purpose of assisting local police officers in checking frequent nighttime burglaries in that county. At 10:00 p. m. on September 24, 1962, while patrolling the city of Girard, Emmons heard a police radio transmission that an open window had been discovered in the Girard High School. However, a later report informed him that the janitor had closed the window and everything at the school building appeared to be in order.
Around midnight Emmons parked his car about one-third of a block south of Kansas highway 27 facing north up a residential street which ran one block west of the Girard High School. He heard a dog barking in the schoolhouse area and shortly thereafter he saw three men appear from a vacant lot adjoining the schoolhouse. They walked down the middle of the street, got into a car parked in the middle of the block, started the car, drove down the residential street toward him, and then turned and proceeded west on highway 57 which runs east and west.
When defendants' car approached Emmons, he started his car and turned in pursuit. As his car swung in behind defendants' car, his headlights picked up the figure of James Earley in the back seat. Earley, a resident of Neodesha, Kansas, was a known felon and a burglary suspect in southeast Kansas. Emmons stopped defendants' car for the purpose of questioning them but before he could reach their car, John Finley jumped out of the driver's seat and met Emmons between the cars. Emmons recognized Finley because he had just recently testified in an Allen county trial wherein Finley had been acquitted of a charge of burglarizing a schoolhouse. Emmons knew Finley had no driver's license, that he was a resident of Eire, Kansas, had a felony record including burglary, and was also a burglary suspect in southeast Kansas. Finley stated to Emmons he had never been off highway 57.
The occupant of the right front seat of defendants' car came up and identified himself as Glenn Denney, the third defendant, who Emmons recognized from pictures and from his knowledge of Denney's criminal record. Emmons knew Denney was presently on parole from a burglary conviction in Montana and was a burglary suspect in southeast Kansas.
Emmons went to the right side of defendants' car to see what had become of Earley and saw a .45 automatic lying directly below the right front door of the car. The shoes and trousers of all three defendants were wet as though defendants had been wading through wet grass. There had been a heavy dew.
The Crawford county sheriff arrived on the scene and the officers 'frisked' the defendants, the sheriff handcuffed them, and they took them to the Crawford county jail. Defendants were then arrested for investigation of burglary. The automobile was searched and screw drivers, a nail bar, a tire tool, a shop cap, a flashlight, and several pairs of brown cotton gloves were found therein.
Emmons went directly to the Girard...
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