State v. Hall

Decision Date11 November 1933
Docket Number31409.
Citation138 Kan. 460,26 P.2d 265
PartiesSTATE v. HALL.
CourtKansas Supreme Court

Syllabus by the Court.

Where defendant, charged with misdemeanor, appears by counsel court may proceed with trial, though defendant is voluntarily absent.

Where defendant voluntarily absented himself from misdemeanor trial, trial court's denial of defendant's counsel's application to withdraw from case after trial had proceeded to impaneling of jury held not abuse of discretion.

Where defendant, convicted of misdemeanor before justice of peace appeals to district court, submission to trial without objection on verified original complaint, not properly certified by justice of peace, constitutes waiver of defective certification.

Evidence sustained conviction for possessing and transporting intoxicating liquor.

1. On the charge of a misdemeanor, where the accused appears by counsel, but voluntarily absents himself from the place of trial, the court in its discretion may proceed with the trial in his absence.

2. Where such a trial has proceeded to the impaneling of a jury and thereafter counsel asks leave of the court to withdraw from the case, there is no abuse of discretion by the court in denying the application.

3. Where the defendant is tried and convicted of a misdemeanor before a justice of the peace, and then appeals to the district court, where he submits to a trial upon a verified original complaint which was not regularly certified by the justice of the peace, but was otherwise sufficient, the submission to a trial without objection operates as a waiver of the defective certification.

4. The evidence examined, and held to be sufficient to sustain the findings and judgment.

Appeal from District Court, Gray County; Karl Miller, Judge.

Robert Hall was convicted of possessing and transporting intoxicating liquors, and he appeals.

O. A Wilson, of Jetmore, for appellant.

Roland Boynton, Atty. Gen., Everett E. Steerman, Asst. Atty. Gen., and Lester Luther, Co. Atty., and Charles O. Boyle, Special Prosecutor, both of Cimarron, for the State.

JOHNSTON Chief Justice.

On December 19, 1932, Robert Hall was arrested upon a warrant issued by Harry Brice, a justice of the peace, charging Hall in two counts with possession and transportation of intoxicating liquors. His bond was fixed at $1,000, which was given by the defendant and approved by the court. After several continuances, and on March 30, 1933, the case came on for trial before the justice of the peace, defendant appearing in person and also with his attorney, Walter Bullock. The state produced its evidence, but the defendant produced no testimony, and upon the testimony the justice of the peace found that he was guilty on both counts, one for possession and the other for transportation of intoxicating liquors, as charged. The sentence was that he pay a fine of $100 on each count and be confined in the county jail thirty days on each count.

The defendant at once perfected an appeal to the district court, and accordingly the proceedings were certified to the district court by the justice of the peace as follows:

"The State of Kansas, Plaintiff, v. Bob (Robert) Hall, Defendant. Filed this 4th day of April, 1933. (Sgd) W. A. LeVan. State of Kansas, Gray County, ss;
"I, the undersigned, a justice of the peace of Cimarron township, in said county, hereby certify that the within is a full, true, complete and perfect copy of the proceedings in the above action, had by and before me, at my office in said township, as the same appears of record in my docket 4, page 11.
"Witness my hand, at Cimarron, in said county, this 4th day of April, 1933. "[Signed] Harry Brice, Justice of the Peace."

The original complaint and warrant were attached to and made a part of the transcript of the proceedings so certified.

The appeal was called for trial in the district court on April 5, 1933. Walter Bullock, his attorney, who represented him in the trial before the justice of the peace, was present, but the defendant did not appear. His attorney, however, announced that he was ready for trial. A jury was impaneled, and then counsel for defendant stated to the court that he had called on the defendant that morning and advised him the case was coming up for trial on that day and asked him to attend. He also stated to the court that he did not believe that the defendant would appear, and then he asked permission to withdraw from the case. The court declined to grant the request, and the attorney continued in court and participated in that trial of the case, which resulted in a conviction.

In the course of the trial upon appeal, counsel for the defendant, in order to facilitate the trial, admitted that containers of liquor presented in evidence by the state were those found in possession of defendant in his automobile, and further that the liquor therein was intoxicating. The jury found defendant guilty on both counts.

There was a motion for a new trial, in which defendant stated that he did not suppose the trial would occur until the November term, and that something said by the sheriff had led him to that notion. He admitted, however, that Bullock, who had arranged to try the case at the April term, was his attorney, and had full authority to represent him and to handle his case. He also stated that his attorney had directed him to appear, and had informed him that the trial was to be had at the April term and advised him to attend. After hearing the evidence on the motion for a new trial, it was overruled.

In this appeal it is contended that the refusal of the court to allow counsel to withdraw from the case was an abuse of the discretion vested in the court. Defendant recognizes the rule that misdemeanor cases may be tried by counsel for the accused in his absence. It is a matter within the discretion of the court whether a trial shall proceed in the absence of a defendant in view of the circumstances presented. An accused may waive his right to be present, where, having notice of the case to be tried, he voluntarily absents himself from the trial. State v. Sexton, 91 Kan 171, 136 P. 901, and cases cited; State v. Johnson, 82 Kan. 450, 108 P. 793, ...

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3 cases
  • State v. Kelly, 47097
    • United States
    • Kansas Supreme Court
    • November 3, 1973
    ...In misdemeanor cases the constitution and statute clearly authorize a trial such as was had here, with only counsel present. State v. Hall, 138 Kan. 460, 26 P.2d 265, Syl. 1. See, also, State v. Bland, 91 Kan. 160, 136 P. 947; State v. Miller, 87 Kan. 454, 124 P. 361; State v. Forner, 75 Ka......
  • State v. Belisle
    • United States
    • Kansas Supreme Court
    • January 24, 1948
    ...complaint had not been certified as the statute provides, it cannot be said that it was not authenticated in any manner.' 138 Kan. at page 462, 26 P.2d at page 267. the cited case differs from the present one in that the defendant's objection to the defective complaint was first raised on a......
  • State v. Cade, 46738
    • United States
    • Kansas Supreme Court
    • November 4, 1972
    ...a case, the defendant must be present at the time sentence is pronounced. . . .' (Pp. 457-458, 108 P. p. 796.) See, also, State v. Hall, 138 Kan. 460, 26 P.2d 265; State v. Sexton, 91 Kan. 171, 136 P. 901; and State v. Forner, 75 Kan. 423, 89 P. What has been said herein does not limit the ......

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