State v. Kendall
| Decision Date | 07 December 1895 |
| Docket Number | 10401 |
| Citation | 56 Kan. 238,42 P. 711 |
| Parties | THE STATE OF KANSAS v. ARTHUR S. KENDALL |
| Court | Kansas Supreme Court |
Appeal from Trego District Court.
The opinion states the case.
Judgment affirmed.
John E Hessin, for appellant.
F. B Dawes, attorney general, and S. J. Osborn, for The State.
OPINION
Arthur S. Kendall was convicted of assault with intent to commit rape upon the person of Emma Cathcart, who was under the age of 18 years. The information charged that he did "unlawfully, feloniously and carnally know and forcibly ravish Emma Cathcart, she, the said Emma Cathcart, then and there being a female under the age of eighteen years." Because of the allegation that force was used, the defendant assumed that two offenses were charged in the information, and moved the court to require the county attorney to elect upon which offense a trial should be had. A motion to quash the information, for the reason that the allegations did not state a public offense, was also made and overruled. Although there is a recital in the final entry of judgment that the defendant was present in person and by counsel during all the proceedings had upon the trial of the case, it is stated in another part of the record that, at the time of the filing of the motion to elect and the argument thereon, the defendant was not actually present in court. It is contended that the absence of the defendant during the filing and argument of the motion is fatal to the judgment of conviction. It is provided that "no person indicted or informed against for a felony can be tried unless he be personally present during the trial." (Crim. Code, 207.) "A trial is a judicial examination of the issues, whether of law or fact, in the action." (Civil Code, 265.) And in every step of a trial for a felony the accused has an undoubted right to be present, and be heard by himself and counsel, or either. All preliminary motions do not constitute a part of the trial, and a hearing of the motion to elect cannot be regarded as the trial of an issue in the case. The allegation in the information that force was used by the defendant was unnecessary and may properly be treated as surplusage, and in that view a hearing of the same becomes unimportant. Under the statutory provisions referred to, it would appear that the presence of the defendant was necessary upon the hearing of a motion to quash the indictment or information. A motion to quash the charge or information is an issue joined between the state and the defendant. It involves the question of the guilt or innocence of the defendant, and the determination of the motion may finally dispose of the prosecution. It is claimed that the defendant was not present during the argument of the motion to quash the information, but the record does not sustain the claim. A fair interpretation of the same is that the defendant was present in person during all the proceedings of the trial, except during the filing and argument of the motion to elect.
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State v. Owens
...548; Reynolds v. People, 41 How. Pr. 179; Fitzpatrick v. People, 98 Ill. 269; Lathrop v. People, 197 Ill. 169, 64 N.E. 385; State v. Kendall, 56 Kan. 238, 42 P. 711; State v. Sullivan, 68 Vt. 540, 35 A. 479; v. Hanlon, 62 Vt. 334, 19 A. 773; State v. McCune, 16 Utah 170, 51 P. 818; State v.......
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State v. Sandstrom, 49812
...illness of a juror. State v. Hansford, 76 Kan. 678, 92 P. 551 (1907); State v. Clifton, 57 Kan. 448, 46 P. 715 (1896); State v. Kendall, 56 Kan. 238, 42 P. 711 (1895); State v. Reed, 53 Kan. 767, 37 P. 174 (1894); State v. Smith, 44 Kan. 75, 24 P. 84 (1890); State v. Myrick, 38 Kan. 238, 16......
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Cox v. Hand, 41679
...he, under such circumstances, be entitled to a reversal of a judgment of conviction on appeal. State v. Adams, 20 Kan. 311; State v. Kendall, 56 Kan. 238, 42 P. 711; State v. Maxwell, 151 Kan. 951, 102 P.2d 109, and cases therein cited; annotation 128 A.L.R. 1315-1329.' (168 Kan. loc. cit. ......
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State v. Olsen
...500; Hamilton v. State, 36 Ind. 280 ; Commonwealth v. Jacobs, 9 Allen [Mass.] 274; 1 Bish. Cr. Law, § 743, et seq." In State v. Kendall, 56 Kan. 238, 42 P. 711, 712, court instructed the jury as follows: "The charge in the information in this case not only includes a charge of rape upon the......