State v. Hemminger, 46808

• Decision Date: 04 November 1972
• Docket Number: No. 46808,46808
• Parties: STATE of Kansas, Appellee, v. Lawrence HEMMINGER, Appellant.
• Court: Kansas Supreme Court

Page 791

502 P.2d 791

210 Kan. 587

STATE of Kansas, Appellee, v. Lawrence HEMMINGER, Appellant.

No. 46808.

Supreme Court of Kansas.

Nov. 4, 1972.

Syllabus by the Court

1. When a judgment and sentence has been set aside in the district court and is thereafter reinstated on order of the supreme court the statutory time for appeal begins to run from the date of receipt of the supreme court mandate by the clerk of the district court.

2. A prosecution is commenced by the filing of a verified complaint and the issuance of a warrant in good faith. Commencement of the prosecution, as that phrase is used in K.S.A. 62-503, does not depend upon the warrant being served.

3. The pendency of a complaint as well as the pendency of an indictment or information meets the provisions of K.S.A. 62-505 so as to toll the statute of limitations, and if a prosecution is commenced on an offense (as indicated in Syl. 2 above) a formal defect in the verification of the complaint or the issuance of the warrant will not prevent a tolling of the statute while the prosecution is pending in the court of issuance.

4. A failure of a defendant to assert his right to a speedy trial makes it difficult for him to prove that he was denied his constitutional right to a speedy trial.

5. The results of truth serum tests are held not admissible to prove the truth of the matters asserted by appellant in defense of the offense charged.

6. The record is examined on appeal from a conviction of first degree robbery and the judgment is affirmed.

Ray Hodge, of Beaty, Hodge & Wood, Wichita, argued the cause and was on the brief for appellant.

David P. Calvert, Deputy County Atty., argued the cause, and Vern Miller, Atty. Gen., and Keith Sanborn, County Atty., were with him on the brief for appellee.

FROMME, Justice.

The appellant, Lawrence Hemminger, appeals from a conviction and sentence on a charge of first degree robbery. This is the second appearance of the case in this court. The first appeal was by the state from an order granting appellant's motion for new trial. (See State v. Hemminger, 207 Kan. 172, 483 P.2d 1096.) In that appeal the order granting a new trial was reversed and the case was remanded with directions to reinstate the judgment and sentence.

Thereafter the appellant filed this appeal.

The facts surrounding the commission of the crime are set forth in State v. Hemminger, supra. Suffice it to say that appellant and his nephew, Harold Hemminger, were charged with robbing the Farha Red Bud supermarket in Wichita on September 20, 1964. The nephew was tried and convicted in February, 1968. (See State v. (Harold) Hemminger, 203 Kan. 868, 457 P.2d 141, cert. den. 396 U.S. 1045, 90 S.Ct. 696, 24 L.Ed.2d 689. The appellant was tried and convicted in March, 1970.

Before examining the points raised by appellant we must dispose of the state's motion to dismiss the appeal. The state contends the notice of appeal was not filed within the statutory period of six months (K.S.A. 1968 Supp. 62-1724). This contention is without merit. The original date of the sentence was March 17, 1970. The appellant filed a notice of appeal from that judgment on April 6, 1970. This was well within the required period but that appeal was aborted by the order of the trial court granting a new trial. On the appeal by the state we ordered the original judgment and sentence reinstated in the sentencing court. Therefore the appeal time began to run from the date of receipt of our mandate by the clerk of the district court. Although the record does not disclose the date the mandate was received, our opinion was filed April 10, 1971. The date of receipt of the mandate, although not appearing in the present record, would necessarily post-date our opinion of April 10, 1971. When a judgment and sentence has been set aside in the district court and is thereafter reinstated on order of the supreme court the statutory time for appeal begins to run from the date of receipt of the supreme court mandate by the clerk of the district court. Appellant filed his second notice of appeal on August 13, 1971, well within the required period. The motion to dismiss is overruled.

We turn to the three points raised by the appellant in this appeal.

The appellant contends prosecution was barred by the statute of limitations (K.S.A. 62-503). He reasons that the original complaint and warrant issued November 4, 1964, were fatally defective. The amended complaint was not filed and the alias warrant was not issued or served upon the appellant until April 29, 1969. He argues the prosecution was not commenced on the offense within two years after its commission.

No claim of waiver has been made by the state since appellant stood mute at the preliminary hearing, and when bound over for trial he was not released on bond. When he was arraigned in the district court on the information he again stood mute and the district judge entered a plea of not guilty. He was subsequently tried and convicted.

This point calls for a review of several pertinent statutes relating to the limitation of criminal actions. These statutes provide that prosecutions for murder and treason may be commenced at any time after the commission of the offense. Another statute imposes a sixty day limitation on the prosecution of offenses which carry a penalty of not to exceed ten dollars. The third statute is the one with which we are now concerned. It reads:

'In all other cases, prosecutions for an offense must be commenced within two years after its commission.' (K.S.A. 62-503.) K.S.A. 62-504 provides:

'If any person who has committed an offense is absent from the state, or so conceals himself that process cannot be served upon him, or conceals the fact of the crime, the time of absence or concealment is not to be included in computing the period of limitation.' K.S.A. 62-505 next provides:

'Where any indictment or information shall be quashed, set aside, or judgment reversed, the time during which the same was pending shall not be computed as part of the time of the limitation prescribed for the offense.'

The following events and dates are pertinent.

The offense was committed on September 20, 1964. The original complaint was verified and filed in the Court of Common Pleas at Wichita on November 4, 1964. A warrant was issued on that date. It was never served. The complaint was verified before a deputy clerk. It was signed and sealed in the name of the clerk by the deputy clerk. The warrant was issued by a deputy clerk in the name of the clerk of that court. The judge's signature did not appear on either the original complaint or the warrant.

It appears from a stipulation in the record on appeal that appellant was incarcerated in the state of Missouri from the date the original warrant was issued until he was extradited from Missouri in 1969. Apparently while the extradition proceedings were pending an amended complaint was verified before the judge of the Court of Common Pleas in Wichita and filed in that court. An alias amended warrant was then issued in the name of the clerk of that court by a deputy clerk. The offense charged in the amended complaint and warrant remained substantially the same as the offense charged in the original complaint and warrant. He was arrested on the alias amended warrant.

Appellant was returned from the state of Missouri for preliminary hearing on or about May 28, 1969. He was then bound over for trial in the district court. The information filed by the prosecution did not set forth facts to negate an application of the two year statute of limitations. At the close of the state's case the appellant filed a motion to discharge for the reason that the offense was committed September 20, 1964, and the date of the amended complaint and warrant was April 29, 1969. This was more than four years after the offense was committed.

Appellant argued then as now that the original complaint and warrant were defective and void because the original complaint was not sworn to before a magistrate as required by K.S.A. 62-602 and the original warrant was issued by an unauthorized person, the deputy clerk of the Court of Common Pleas. Appellant contends the filing of the original complaint and the issuance of the original warrant did not amount to commencement of prosecution within the meaning of K.S.A. 62-503. He argues that since the prosecution was not commenced within two years after commission of the offense the information and the evidence upon which his conviction rests is insufficient in that the state failed to allege in the information and introduce evidence at the trial to establish his absence from the state. (See State v. Schonenberger, 173 Kan. 665, 250 P.2d 777.)

When an information is about to be filed and more than two years have elapsed since the offense was committed there are two possible methods open to the prosecution to establish that prosecution of the offense is not barred under K.S.A. 62-503. First, the state may set forth facts in the information and introduce evidence to bring the case within the provision of K.S.A. 62-504 by alleging and proving that the accused was absent from the state during the required period of time. This was not done in the present case. Second, the state may wait until the question is raised and then show by the complaint and warrant that the prosecution was commenced within two years after the commission of the offense even though the information may not have been filed within that time.

This court has repeatedly said that a prosecution is commenced by the filing of a verified complaint and the issuance of a warrant in good faith. The commencement of the prosecution, as that phrase is used in K.S.A. 62-503, does not depend upon the warrant being served. (State v. Woolworth, 148 Kan. 180, 81 P.2d 43, cert. den. 317 U.S. 671, 63 S.Ct. 80, 87 L.Ed. 539; State v. Cashman, 174 Kan. 272, 255 P.2d 660; State v. Bilby, 194 Kan. 600, 400 P.2d 1015.)...