State v. Hess

• Decision Date: 08 December 1956
• Docket Number: No. 40434,40434
• Citation: 180 Kan. 472,304 P.2d 474
• Parties: The STATE of Kansas, Appellant, v. O. W. HESS, Appellee.
• Court: Kansas Supreme Court

Page 474

304 P.2d 474

180 Kan. 472

The STATE of Kansas, Appellant, v. O. W. HESS, Appellee.

No. 40434.

Supreme Court of Kansas.

Dec. 8, 1956.

Syllabus by the Court.

In an appeal by the state from a decision and judgment sustaining a motion to discharge the defendant in a criminal action from custody, on the ground the state had failed to bring him to trial within the period of time required by G.S.1949, 62-1432, the record is examined, and held, that under the facts, conditions and circumstances disclosed by the opinion the trial court's action was proper and must be up-held.

Victor Hergenreter, County Atty., and A. E. Carroll, Asst. County Atty., Alma, and John Anderson, Jr., Atty. Gen., on the brief, for appellant.

David Prager, Topeka, and E. W. Stuewe, Alma, Charles Heizer, Osage City, Jacob A. Dickinson, William W. Dimmitt, Jr., Sam A. Crow, Edward Rooney (Deceased), Topeka, on the brief, for appellee.

PARKER, Justice.

This is the second appearance in this court of an appeal by the state in the case of State v. O. W. Hess, the present appeal being from an order and judgment of the district court of Osage County sustaining a motion to discharge the defendant.

The case was first here on an appeal by the state from an order of the trial court granting the defendant a new trial after he had been found guilty of the crimes of grand larceny and embezzlement as charged in counts 1 and 2, respectively, of an information also involved was an attempt by defendant to appeal, after his motion for a new trial had been sustained, from an order overruling his motion for discharge, based on the fround the state's evidence was insufficient to warrant submission of his guilt on either count of the information to the jury.

Our decision in the first appeal, wherein we affirmed the trial court's action in granting a new trial and held the appeal from the order overruling the motion for discharge was not subject to appellate review, is reported as State v. Hess, 178 Kan. 452, 289 P.2d 759. The opinion in that case, dated November 12, 1955, contains an accurate recital of all the facts, events and circumstances necessary for a complete understanding of all matters involved in this criminal prosecution from the date of its inception up to and including the date on which the mandate of our decision in the first appeal was ordered spread of record in the court below. Therefore, in order to avoid encumbering our reports with repetitious matters, we make the opinion of that decision a part of this opinion and turn directly to facts and issues herein involved.

After the cause was called for trial at the opening of the March, 1956, term of the district court of Osage County defendant filed the motion heretofore mentioned, based in substance on the ground that, since he had not been brought to trial before the end of the third term after the case stood ready for trial, he had been denied the speedy trial guaranteed him by Section 10 of the Bill of Rights and G.S.1949, 62-1432, and was therefore entitled to be discharged from custody. When this motion came on for hearing the court heard arguments by the parties and permitted submission of written briefs. It then took the matter under advisement and ultimately rendered its decision wherein it sustained the motion and discharged the defendant. Thereupon the state reserved the question of the correctness of such decision. Later it perfected an appeal which entitles it to appellate review of that question.

The trial court's decision with respect to the question now before us, on which it based its order and judgment, is reflected in a well written memorandum decision which sets forth the decisive facts, outlines the issue, and states the reasons for the judgment rendered in such manner and form it can well be incorporated in and made a part of the opinion of an appellate court. For these reasons, and others to be presently disclosed, we are disposed to quote such decision in toto. It reads:

'The above case is now before this Court on defendant's motion to be discharged on the ground that he had been denied that speedy trial which is guaranteed by Section 10 of our Bill of Rights and G.S.1949, Section 62-1432. It is clear from the statements of both parties that the period in issue is that which elapsed during the pendency of this case in the Supreme Court. The early history of the case need not be mentioned further than to say that defendant was first tried in the November, 1953, term. The jury disagreed in this trial and defendant was retried at the March, 1954, term and was convicted. At all times since the beginning of this case until the present date the defendant has been at large on bond.

'Within due time after the verdict, defendant filed his motion for a new trial. Because of the time needed to procure a transcript and to prepare extensive briefs, by consent of both parties said motion was not finally submitted to the Court until October, 1954, and on November 9, 1954, said defendant was granted a new trial. Thereafter on November 19th, the State, having reserved the question, perfected its appeal; and on November 27th, the defendant filed his notice of 'appeal and cross-appeal'. Thereafter no action was taken in this Court until the mandate was ordered spread on February 3, 1956, said mandate having been received by the Clerk of this Court on December 7, 1955. At the opening of the March, 1956, term of this court, defendant announced his intention to file his present motion, which motion was actually filed on March 14, 1956.

'Since said appeal was taken, and up to the filing of defendant's motion, he has not been re-tried; and it cannot be questioned that during said period more than three terms of this Court have elapsed, that is to say, the remainder of the November, 1954, term (which did not expire until March 7, 1955), and all of the March, June and November, 1955, terms. The principal question presented by defendant's motion is whether the pendency of said appeal excused the delay in retrying the defendant. This question must be determined without reference to the guilt or innocence of the defendant.

'Section 10 of the Bill of Rights in the Kansas Constitution expressly declares that 'In all prosecutions the accused shall * * * have * * * a speedy public trial by an impartial jury of the county or district in which the offense is alleged to have been committed.' This is not the grant of a mere privilege; it is the grant to an accused person of a right, of which he cannot be deprived by the laches of public officers. (In re Trull, 133 Kan. 165 ; State v. Brockelman, 173 Kan. 469 .) Its provisions are a directive to prosecuting officers to act, and not to delay, the prosecution of persons charged with criminal offenses. (In re Trull, 133 Kan. 165, 169 .) The whole responsibility of seeing to it that the accused is given a speedy trial therefore rests upon the prosecution and not on the accused. (In re Trull, 133 Kan. 165, 168 .) Nevertheless, the right so granted to the defendant is one which he may waive. (In re Baxter, 121 Kan. 636, 639 .) But what is necessary to constitute that speedy trial which the Bill of Rights guarantees? And what conduct of the defendant will amount to a waiver of that right?

'We have an answer to these questions in G.S. 62-1431 and 62-1432, which is valid, at least in the particular circumstances therein stated. The former section applies to a defendant who remains in prison and provides that he must be brought to trial before the end of the second term. It has no direct application to this case, but some of the decisions relating to it will be found helpful. In State v. Stanley, 179 Kan. 613 , it is said that the language, meaning and purpose of these two sections are so similar that there can be no room for differentiating between them in statutory construction.

'The section on which the present motion is based is Section 62-1432, which provides that if any person under information for any offense and held to answer on bail shall not be brought to trial before the end of the third term of the court in which the cause is pending, which shall be held after the information is filed, he shall be entitled to be discharged so far as relates to such offense, unless the delay happen on his application or be occasioned by want of time to try such cause at said third term.

'These statutes supplement the Bill of Rights and render it effective (In re Trull, 133 Kan. 165, 167 ) by prescribing a definite and uniform rule for the government of courts. (In re McMicken, 39 Kan. 406, 408 .) They constitute a legislative definition of what is, under the circumstances named, a reasonable and proper delay in bringing the accused to trial. (In re Trull, 133 Kan. 165, 167, .) Their purpose is to carry into effect the constitutional guaranty of a speedy trial. (State v. Campbell, 73 Kan. 688, 695 [85 P. 784, 9 L.R.A.,N.S., 533].)

'It is not every delay in trial which is to be considered in determining whether the statute applies to a particular case. The statute does not operate in favor of a fugitive from justice. (State v. Aspinwall, 173 Kan. 699 ; State v. Neal, 175 Kan. 597 .) It is not claimed that the defendant was ever a fugitive from justice and the matter would need no attention except for the contention in the State's brief that defendant did not appear at any term of this Court while the appeal was pending. Such is not the recollection of this Court or its officers. Mere failure to appear at a particular term would not make the defendant a fugitive from justice, but only an absentee, and as pointed out in State v. Morgan, 84 Kan. 625, , the State could always have compelled the attendance for trial of an absent defendant by the issuance of a bench warrant. No such effort was made in this case, nor did the State at any time complain that defendant was not present.

'Another period which is not to be counted in determining whether ...