State v. McBee

• Decision Date: 25 July 1900
• Docket Number: 654
• Citation: 61 P. 1093,10 Kan.App. 450
• Parties: THE STATE OF KANSAS v. MARK MCBEE
• Court: Kansas Court of Appeals

61 P. 1093

10 Kan.App. 450

THE STATE OF KANSAS v. MARK MCBEE

No. 654

Court of Appeals of Kansas

July 25, 1900

Decided July, 1900.

Appeal from Elk district court; C. W. SHINN, judge.

Judgment of district court reversed.

SYLLABUS

CRIMINAL LAW -- Amendment of Judgment -- Additional Penalty. A journal entry of judgment in a criminal case cannot be amended after the sentence as stated in such journal entry has been fully served and the fine and costs paid, by adding thereto a penalty for failure to give the good-behavior bond provided for in the statutes.

W. A McCausland, for The State.

John Marshall, and L. Scott, for appellant.

OPINION

SCHOONOVER, J.:

At the October term, 1899, of the district court of Elk county, the defendant was charged in four counts with violating the prohibitory law.

The defendant McBee asked that he be permitted to plead guilty to one count, and the county attorney asked the court to accept the plea and recommended "that the sentence of the court be the minimum penalty fixed by law, provided that he save the state from all costs." It was further represented to the court that "the defendant McBee is engaged in business in said city of Howard as a druggist, and is so conducting his business as to reflect credit upon himself as an honorable gentleman, and, as I verily believe, has been so conducting said business for a long time prior to this date."

Upon this recommendation, the district court accepted the plea of guilty to the first count and the prosecuting attorney dismissed as to the remaining three.

At the time the defendant was sentenced, the trial judge entered upon his docket the following:

"October 3. Defendant withdraws his plea of not guilty as to the first count of the indictment, and enters a plea of guilty as charged in the first count of the indictment. Defendant sentenced to confinement in the county jail for thirty days and pay a fine of $ 100 and costs of prosecution, stand committed to the county jail until fine and costs are paid, and to enter into a bond in the sum of $ 500, with sureties to be approved by the clerk, to be of good behavior for two years, and particularly not to violate any of the provisions of the law regulating the sale of intoxicating liquors. Nolle pros. as to the remaining counts of this indictment entered by the county attorney."

From this memorandum made by the court the following journal entry of the sentence and judgment of the court was drawn and recorded, and the defendant committed accordingly:

"Now on this 3d day of October, 1899, comes said plaintiff, by W. A. McCausland, county attorney of Elk county, Kansas, and comes said defendant in his own proper person and by John Marshall, his attorney; and thereupon said defendant asks leave of the court to withdraw his plea of 'not guilty' as to the first count of the indictment filed herein against him, which leave is by the court granted, and thereupon said defendant withdraws his plea of 'not guilty' as to the first count of the indictment herein; and thereupon said defendant waives an arraignment under the first count of the indictment herein and enters a plea of 'guilty' as to the first count of said indictment; and thereupon the said W. A. McCausland, county attorney of Elk county, Kansas, asks leave of court to dismiss this action as to the second, third and fourth counts of the indictment filed herein, which leave is by the court granted; thereupon said defendant asks that judgment be pronounced upon his plea of 'guilty' as to the first count of the indictment herein; and thereupon said defendant, Mark McBee, was informed by the court that he had plead guilty to selling intoxicating liquors contrary to law, as charged in the first count of the indictment filed herein against him, and being inquired of by the court if he had any legal causes to show why judgment should not be pronounced against him according to law and said defendant failed to show any cause.

"It is therefore by the court considered, ordered, adjudged and sentenced that said defendant, Mark McBee, be confined in the jail of Elk county, Kansas, for a period of thirty (30) days that he pay a fine of one hundred dollars ($ 100) to the state of Kansas, that he pay the costs of this prosecution, taxed at $--, and that he be committed until such fine and costs are paid, and that he give bond, with sureties to be approved by the clerk of this court, in the sum of five hundred dollars ($ 500) to be of good...