State v. Howland

• Decision Date: 08 March 1941
• Docket Number: 34988.
• Citation: 110 P.2d 801,153 Kan. 352
• Parties: STATE v. HOWLAND.
• Court: Kansas Supreme Court

110 P.2d 801

153 Kan. 352

STATE v. HOWLAND.

No. 34988.

Supreme Court of Kansas

March 8, 1941

Rehearing Denied April 18, 1941.

Syllabus by the Court.

Where a defendant files a plea in abatement, the state should file some pleading raising an issue of fact, of law, or of both so that the defendant may intelligently proceed.

Under statutes pertaining to the preliminary examination before a justice of the peace of a person charged with committing an offense, it is a "condition precedent" to committing the person for trial by the district court that from the whole examination it appears that a crime has been committed and that there is probable cause to believe that the person charged is guilty. Gen.St. 1935, 62-618, 62-620.

The county attorney is not authorized to file an information against an accused unless the accused is a fugitive from justice, or has waived his preliminary examination, or has had a preliminary examination before a proper magistrate to whom it appears that an offense has been committed and that there is probable cause to believe the accused guilty. Gen St.1935, 62-618, 62-620.

Under statutes pertaining to preliminary examination of an accused before a justice of the peace and requiring as a "condition precedent" to committing the accused for trial by the district court that from the whole examination it appears that a crime has been committed and that there is probable cause to believe the accused guilty, "probable cause" means a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that the accused is guilty of the offense with which he is charged. Gen.St.1935, 62-618 62-620.

Where justice of the peace stated in transcript prepared and filed at conclusion of preliminary hearing that "defendant may be has committed said crime" and in the justice's docket appeared the finding "that the defendant may be guilty of the crime," that language could not be interpreted as a finding that there was "probable cause" to believe defendant guilty of offense charged within statutes requiring justice conducting preliminary hearing to commit an accused for trial if it appears that an offense has been committed and that there is probable cause to believe the accused guilty. Gen.St. 1935, 62-618, 62-620 62-630.

Where defendant filed a plea in abatement on ground that transcript certified to the district court by justice of the peace who conducted preliminary hearing showed that defendant was not properly committed for trial, the state could offer the justice as a witness, since if evidence showed that transcript did not speak the truth, it was permissible for justice to amend the transcript, but his testimony was not competent to make the record show something that was not done at the preliminary hearing, nor could he state that he had reached a conclusion different from that reached at the hearing. Gen.St.1935, 62-618, 62-620, 62-630.

Testimony of a justice of the peace whose transcript and docket did not contain an adequate finding that there was probable cause to believe defendant guilty of offense charged was insufficient to support finding that justice had concludued that the crime charged had been committed and that there were reasonable and probable grounds to believe defendant guilty. Gen.St.1935, 62-618, 62-620, 62-630.

The right of a person charged with a felony to a preliminary hearing is a fundamental, basic, and substantial right, and a person who is deprived of that right is prejudiced. Gen.St.1935, 62-618, 62-620.

1. Where in a criminal prosecution the defendant files a plea in abatement, the proper practice is for the state to file a pleading raising either an issue of fact or of law or of both so that the defendant may intelligently proceed.

2. Under the provisions of the code of criminal procedure of this state, pertaining to a preliminary examination, it is a condition precedent to committing a prisoner for trial by the district court that from the whole examination it appear to the examining magistrate a crime has been committed and that there is probable cause to believe the person charged is guilty.

3. The county attorney is not authorized to file an information against an accused, unless the accused is a fugitive from justice, or has waived his preliminary examination, or has had a preliminary examination before a proper magistrate to whom it shall appear an offense has been committed and there is probable cause to believe the prisoner guilty.

4. The term "probable cause" is defined to mean a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that the person accused is guilty of the offense with which he is charged.

5. A finding of a justice of the peace made at a preliminary examination, and as shown by his docket: "and that the defendant may be guilty of the crime", or as shown in his transcript certified to the district court that: "defendant may be has committed said crime", is not a finding of probable cause to believe the prisoner guilty.

6. Where on the hearing of a plea in abatement, on the ground the transcript certified to the district court shows that the accused was not properly committed for trial, the evidence shows that the transcript contains omissions and does not speak the truth, the trial court may permit the examining magistrate to amend his transcript consistent with such evidence but testimony is not competent to make the transcript show something that was not done or did not occur at the preliminary hearing.

7. The right of one charged with a felony to a preliminary hearing is a fundamental and basic right, it is substantial, and if accused is deprived of it, he is prejudiced.

Appeal from District Court, Greeley County; Fred J. Evans, Judge.

Ted Howland was convicted of statutory rape, and he appeals.

Reversed.

DAWSON, C. J., and HARVEY, J., dissenting.

J. H. Jenson and Corwin C. Spencer, both of Oakley, for appellant.

Martin F. Trued, Co. Atty., of Tribune, Edward E. Pedroja, Sp. Asst. Atty. Gen., Jay S. Parker, Atty. Gen., and A. B. Mitchell, Asst. Atty. Gen., for appellee.

THIELE Justice.

Defendant was convicted of the crime of statutory rape and appeals, the only question presented being whether as the result of his preliminary hearing he was properly bound over for trial in the district court.

On December 13, 1939, an Ilene Smith, a person under eighteen years, made her complaint before Harry E. Kean, a justice of the peace of Greeley county, charging Ted Howland with ravishing her. A warrant was duly issued, and on January 22, 1940, a preliminary hearing was held by the justice of the peace. At the conclusion of the hearing, the justice of the peace prepared and filed a transcript, as required by G.S.1935, 62-630, the only portion with which we are concerned reading as follows:

"Jan. 22. Defendant with Att. Janson appeared for hearing. M. F. Trued Co. Att. appeared and Ilene Smith was sworn and testified. The evidence given shows a crime has been commited and that the defendant may be has committed said crime or rape. Said crime being a felon said defendant is ordered bound over (to) the District Court in the sum of $1000 for appearance as the court directs." (Italics ours.)

Thereafter on February 1, 1940, an information was filed by the county attorney charging defendant with statutory rape committed on or about June 1, 1939. On June 10, 1940, defendant filed a duly verified plea in abatement alleging, inter alia, that no justice of the peace or court or judge had ever found the offense charged had been committed in Greeley county "or that there was or is probable cause to believe the defendant guilty of the offense or offenses charged or attempted to be charged in the information herein."

When the matter came on to be heard, the state declined to answer or demur to the plea, and controversy arose as to rules of practice. After some discussion as to whether the facts alleged in the plea stood admitted, and whether the transcript of the justice of the peace could be considered, the defendant moved for judgment, but not waiving his right to introduce evidence, which motion the court denied. It may be doubted that failure of the state to plead could be held to be an admission of the facts alleged in the plea in abatement, but certainly the proper practice would have been for the state to file some pleading raising either an issue of fact or of law or of both, so that the defendant could intelligently proceed. In this case, however, the defendant did introduce in evidence the files in the case which included the information, the transcript, complaint and the warrant, without objection from the state, which then called the justice of the peace as a witness. The examination was extended, many of the questions being met with objections which were generally overruled. After testifying that a hearing was held and testimony taken, the justice of the peace testified he came to the conclusion a crime had been committed, and that some one had committed it. From that point on the examination was conducted principally by the court. It asked the witness whether he had concluded there was probable cause to believe the person on trial guilty and he answered: "Well, I knew from the evidence that the crime had been committed and I knew from the evidence that he was charged with it, and I had no way of knowing, or anybody else, whether or not positive, but he was charged with it."

The court then advised him it was the duty of the justice of the peace when holding a preliminary to decide whether a crime had been committed, and, if so, whether there was probable ground for believing ...