State v. Kindig

• Decision Date: 06 April 1895
• Citation: 55 Kan. 113,39 P. 1028
• Parties: THE STATE OF KANSAS v. R. O. KINDIG
• Court: Kansas Supreme Court

39 P. 1028

55 Kan. 113

THE STATE OF KANSAS v. R. O. KINDIG

Supreme Court of Kansas

April 6, 1895

Appeal from Thomas District Court.

ON the 7th of October, 1893, an information was filed in the district court of Decatur county charging R. O. Kindig, as cashier and manager of the State Bank of Oberlin, with having, on the 12th of July, 1893, unlawfully received a deposit of $ 63.25 for said bank, when he knew the bank at that time was insolvent. At the October term of the court for 1893, of Decatur county, the state, with leave of the court filed an amended information. Thereupon the defendant filed his written application for the court to grant him a change of venue to the district court of some other county in the seventeenth judicial district, upon the ground "that the minds of the inhabitants of the county of Decatur, the county in which the said case is now pending, are so prejudiced against the defendant that a fair trial cannot be had therein." This application was supported by 25 affidavits. After hearing the application, and being fully advised thereof, the court made the following order "The venue of said cause is changed to Cheyenne county in said seventeenth judicial district, and the trial of said cause is set for the November, 1893, term of said district court sitting in and for said county and state." The trial of the case was continued from the November term of 1893 to the April term of 1894. At the April term of the district court of Cheyenne county for 1894, and on the 5th day of April, the venue was changed from Cheyenne county to Thomas county in the thirty-fourth judicial district. The record on that point, reads:

"Counsel for defendant thereupon called the court's attention to P 5238, General Statutes of Kansas, and especially to the third clause thereof, viz., that the court had heretofore been counsel for the state in said cause. Thereupon it appearing to, and being within, the knowledge of the judge presiding and the court that theretofore, as county attorney of Decatur county, Kansas, where said cause was originally begun and filed, as such officer, he had verified, filed the information therein, and acted as counsel for the state in the said cause: therefore, and for such reasons, it is ordered, considered and adjudged by the court that the venue in said cause be changed to the county of Thomas, in the state of Kansas, the same being within the thirty-fourth judicial district of the said state. And it is further ordered by the court that the clerk of the district court in and for Cheyenne county, Kansas, forward, forthwith, to the clerk of the district court of Thomas county, Kansas, a true correct and complete transcript of all pleadings, complaints informations, recognizance and records of said cause. To which order of the court the defendant then and there asked an exception to be entered."

At the June term of the court for Thomas county for 1894, when the state attempted to offer evidence, the defendant objected to the introduction of any testimony upon the ground "that the court had no jurisdiction to hear and try the case, and also upon the ground that the jury were not impaneled from the county or district in which the offense was alleged to have been committed." This objection was overruled. On the 23d day of June, 1894, the jury returned a verdict of guilty against the defendant. Subsequently the defendant filed a motion in arrest of judgment, and also for a new trial. These motions were overruled. The court sentenced the defendant to confinement to the state penitentiary for the period of three years, and also adjudged that he pay the costs of the prosecution. The defendant appeals.

Judgment reversed and cause remanded.

SYLLABUS

1. CHANGE OF VENUE--Order not Fatally Defective. Where a change of venue of a criminal cause is actually made by a district court to some other county in the same district in which the offense is alleged to have been committed, upon the written application of the defendant that the minds of the inhabitants of the county in which the cause is pending are so prejudiced against him that he cannot have a fair trial therein, such order is not fatally defective because it omits to specify the cause of removal.

2. INFORMATION--Trial on Certified Transcript of Record. Where a criminal cause is properly removed for trial from one county to another county in the same judicial district, the district court having jurisdiction of the cause by such removal may try the defendant upon a certified transcript of the record and proceedings, and such trial court has authority to require the defendant to plead to a certified transcript of the information instead of upon the original information.

3. TRIAL, Where --Conditional Right--Waiver. Section 10 of the bill of rights guarantees to the accused in a criminal cause a trial by a jury of the county or district in which the offense is alleged to have been committed. This constitutional right or personal privilege may be waived, with the consent of the accused, but this provision of the bill of rights is of the highest importance, and unless the removal of the cause to a county in a different judicial district is clearly shown by the record to have been made with the consent of the accused, the removal is without any authority of law.

4. TRIAL No Waiver Shown. The record in this case examined, and held not to show that the accused waived his constitutional right to be tried with in the judicial district in which the offense with which he is charged is alleged to have been committed.

John R. Hamilton, and Bertram & McElroy, for appellant.

John T. Little, attorney general, and C. Angevine, for The State.

HORTON C. J. All the Justices concurring

OPINION

HORTON, C. J.:

It is insisted that the district court of Cheyenne county had no jurisdiction of this case on a change of venue from Decatur county because the order of removal was made prior to any plea to the information, and because the removal did not specify the cause therefor. Section 179 of the criminal code reads:

"Every order for a removal of any cause under the foregoing provisions shall state whether the same is made on the application of the party or on facts within the knowledge of the court or judge, and shall specify the cause of removal, and designate the county to which the cause is removed."

I. It is claimed upon the part of the state that a plea of not guilty was entered before the application for removal of the cause was granted, but that the plea was unintentionally omitted from the record. This, however, is immaterial. It is held to be better practice to...