State v. Marshall and Brown-Sidorowicz, P. A.
| Decision Date | 14 April 1978 |
| Docket Number | No. 48877,BROWN-SIDOROWIC,P,48877 |
| Citation | 577 P.2d 803,2 Kan.App.2d 182 |
| Parties | STATE of Kansas, Appellee, v. MARSHALL ANDA., a Kansas Corporation, and Norbert J. Sidorowicz, Appellants. |
| Court | Kansas Court of Appeals |
Syllabus by the Court
1. The absence of the name of the State of Kansas in the caption of an indictment and a summons issued thereon is not a fatal defect depriving the district court of either subject matter jurisdiction or personal jurisdiction over the defendant.
2. It is the body of the indictment rather than its caption that is important. If the body specifically states the essential elements of the crime and is otherwise free from defect, defects in the caption will not cause it to be invalid.
3. K.S.A. 22-2104, which provides that all prosecutions for violations of the criminal laws of this state shall be in the name of the State of Kansas, does not require that the name of the State of Kansas appear in the caption of an indictment and a summons issued thereon.
4. In absence of constitutional or statutory provisions on the subject, a formal statement in an indictment that the prosecution has been brought and is being carried on in the name and by authority of the state is not necessary if this fact appears elsewhere in the record.
5. The purpose of K.S.A. 22-2104 is to protect the people of this state from private prosecutions which might degenerate into persecutions and from prosecutions by any foreign power or a sovereignty other than this state. The statute directs that the state, in its name and by its authority, shall control the prosecution. It does not require that the indictment or summons say on its face that the action is "prosecuted in the name and by authority of the state."
6. Complaints relating to formal defects in an information, indictment, complaint, warrant, or summons are waived in a criminal action by not objecting thereto in some appropriate manner in the preliminary stages of the proceeding.
7. K.S.A. 22-2306, providing that a warrant shall not be quashed or abated because of any technical defect in the warrant, is also applicable as to technical defects in summonses.
8. The omission of the name of the State of Kansas from the caption of an indictment and summons, not constituting a defect as to subject matter jurisdiction, is a matter waived by defendants who fail to raise timely objection.
9. Defects that concern jurisdiction of the person may be waived by a defendant who appears in court, pleads, posts bond, and fails to make seasonable objection.
10. Where a summons addressed to the sheriff of one county is served by someone other than that sheriff, the service is defective and subject to timely objection. However, such defective service may be waived where a defendant appears, submits himself to the jurisdiction of the court, and fails to raise a timely objection.
11. Under K.S.A. 22-3208(4), a defendant who enters a plea of guilty or consents to a trial upon a complaint, information or indictment thereby waives defenses and objections based upon the institution of the prosecution or defects in the complaint, information or indictment other than it fails to show jurisdiction in the court or to charge a crime.
12. The absence of a written order by the district judge ordering that summons issue instead of warrants does not necessarily invalidate subsequent service of process by summons.
13. It is presumed public officials will perform their duties in a rightful manner and will not act improperly.
14. A criminal prosecution commenced by the filing of a complaint, information or indictment, upon which summons is issued pursuant to K.S.A. 22-2302, has been properly commenced for the purposes of K.S.A. 21-3106(5) and the statute of limitations is tolled.
15. Reversible error cannot be predicated upon a complaint of misconduct of counsel in opening or closing argument where no contemporaneous objection is lodged.
16. Failure to comply with the contemporaneous objection rule bars a challenge to a conviction even upon federal constitutional grounds. Kansas does not follow the "plain error" rule utilized in the federal courts.
17. The test as to whether a comment by a prosecutor in closing argument constitutes an improper reference to a defendant's failure to testify is whether the language used was manifestly intended or was of such character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify.
18. Ordinarily when acts and declarations of one or more coconspirators are offered into evidence against another co-conspirator by a third party witness or witnesses, the conspiracy should first be established prima facie, and to the satisfaction of the trial judge. But this cannot always be required. Where proof of the conspiracy depends on a vast amount of circumstantial evidence a vast number of isolated and independent facts it cannot be required. In any case where such acts and declarations are introduced in evidence, and the whole of the evidence introduced at trial taken together shows a conspiracy exists, it will be considered immaterial whether the conspiracy was established before or after the introduction of such acts and declarations. State v. Borserine, 184 Kan. 405, Syl. 4, 337 P.2d 697 (1959).
19. No party may assign as error the giving or failure to give an instruction unless he or she objects thereto before the jury retires, stating the matter to which he objects and the grounds of his objection, unless the instruction was clearly erroneous. K.S.A. 60-251(b ).
20. Impeachment occurs when a suggestion is made by direct proof or by the nature of an examination that a witness has testified falsely for hope of reward or because of promise of immunity, fear, or malice. Where a witness has been impeached or his credibility has been attacked, prior statements consistent with his testimony may be shown to rehabilitate or support the witness.
21. A defendant is not entitled to a reversal of his conviction on the basis of a prosecutor's statement before the jury that a co-defendant has pleaded guilty to the same offense where defendant fails to make a timely objection or to request curative action from the court.
22. One who by his acts invites error is in no position to complain or take advantage of it on appeal, and there is no prejudicial error when a statement of a prosecutor is provoked and made in response to previous statements of defense counsel.
23. It is generally held that a defendant may not predicate error upon a prosecuting attorney's argument or disclosure during trial that another defendant has been convicted or has pleaded guilty if such argument or disclosure was provoked or induced by statements of defense counsel.
24. Where a defendant and a declarant were participating in a plan to commit a crime or a civil wrong and a statement made by the declarant was relevant to the plan or its subject matter and was made while the plan was in existence and before its complete execution or other termination, evidence of such statement is admissible against the defendant as a vicarious admission under the co-conspirator exception to the hearsay rule. K.S.A. 60-460(i ).
25. A witness is qualified to testify only as to those facts which he knows of his own knowledge, and if on cross-examination it appears that a witness does not know the fact to which he has testified, his testimony should be excluded.
26. The conviction of one remaining defendant in a conspiracy prosecution is unaffected by failure to convict his co-defendants where it is alleged and proved that there were others not brought to trial because they were granted immunity.
27. A jury may properly consider overt acts of acquitted or dismissed co-conspirators in the trial of other co-conspirators where they are not the only overt acts alleged.
28. The fact that other alleged co-conspirators were acquitted or had charges against them dismissed does not necessarily and standing alone render the co-conspirator exception to the hearsay rule, K.S.A. 60-460(i ), unavailable to the state for the purpose of introducing evidence of their out-of-court declarations.
29. Generally, in conspiracy cases, broad discretion and great latitude are permitted in the reception of evidence.
30. The Kansas statute defining bribery, K.S.A. 21-3901, covers any situation in which the advice or recommendation of a public officer or employee would be influential, irrespective of the employee's specific authority, or lack of same, to make a binding decision.
31. An indictment need not necessarily allege for whose act a corporation is charged in a criminal case.
32. The terms of K.S.A. 1977 Supp. 20-2301, concerning the creation by the district court of a board of paroles, are permissive, not mandatory, and do not compel the district court to convene a board of paroles whenever asked to do so by a criminal defendant.
33. An appellate court's function in reviewing sufficiency of evidence, whether circumstantial or direct, to support a conviction, is limited to ascertaining whether there is a basis in the evidence for a reasonable inference of guilt.
Robert D. Hecht of Scott, Quinlan & Hecht, Topeka, for appellants.
Mark L. Bennett, Jr., Sp. Asst. Dist. Atty., Curt T. Schneider, Atty. Gen., and Gene M. Olander, Dist. Atty., for appellee.
Before ABBOTT, P. J., and REES and SPENCER, JJ.
This is an appeal by defendants from convictions for conspiracy to commit bribery as defined by K.S.A. 21-3302 and K.S.A. 21-3901. We affirm.
The prosecution of these defendants arises out of the award by the State of Kansas in March, 1972, of an architectural contract for expansion of the Kansas University Medical Center in Kansas City, Kansas. Defendant Sidorowicz is an architect and officer of the corporate defendant, Marshall and Brown-Sidorowicz.
The award of the contract was the subject of an...
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