State v. McCarther
| Decision Date | 07 May 1966 |
| Docket Number | No. 44418,44418 |
| Citation | 414 P.2d 59,196 Kan. 665 |
| Parties | The STATE of Kansas, Appellee, v. Richard Lee McCARTHER, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
,1. Where an information is filed directly in the district court charging an accused with felony and no preliminary examination is afforded the defendant, he is required to raise the question of the lack of such examination prior to arraignment by filing a plea in abatement, and the proper practice is for the state to file a pleading raising either an issue of fact or law, or both, so the defendant may intelligently proceed.
2. A motion to quash or dismiss an information does not raise an issue of the lack or the sufficiency of a preliminary examination since such a motion reaches only some defect apparent on the face of the information.
3. Where a defendant pleads to an information and goes to trial upon it, the subject of preliminary examination is no longer material. An objection to the lack of or the sufficiency of a preliminary examination after trial and conviction, or upon appeal, comes too late.
4. The record in a criminal action in which the defendant was convicted of escaping from a county jail before conviction, is examined, and it is held: the district court did not err (1) in overruling the defendant's motion to dismiss the information and enter judgment of acquittal, (2) in overruling the defendant's motion for a new trial, and (3) in sentencing the defendant pursuant to the Kansas Habitual Criminal Act. (K.S.A. 21-107a.)
G. Edmond Hayes, Wichita, for appellant.
Martin E. Updegraff, Deputy County Atty., Wichita, Argued the cause, and Robert C. Londerholm, Atty. Gen., Topeka, and Keith Sanborn, County Atty., Wichita, with him on briefs for appellee.
The defendant, Richard Lee McCarther, was convicted by a jury of escaping from the county jail of Sedgwick County, and has appealed.
On December 5, 1964, the defendant, while lawfully confined in the Sedgwick County jail awaiting trial on charges then pending against him for first degree robbery, felonious assault and possession of firearms after a felony conviction, broke imprisonment and escaped. An information was filed directly in the district court charging the defendant with escape before conviction in violation of K.S.A. 21-736, and alleged he was a fugitive from justice as provided in K.S.A. 62-805. On December 8, 1964, the clerk of the district court issued a warrant for the defendant's arrest, alleging the offense charged in the information; that he was a fugitive from justice, and commanded the sheriff to arrest the defendant and bring him before the court to answer the charge.
On Friday, December 18, 1964, the defendant was arrested, and on Monday morning, December 21, 1964, he was brought before Judge Wm. C. Kandt of division No. 1 of the district court for arraignment and the fixing of an appearance bond. (The courthouse in Sedgwick County is officially closed on Saturdays, and December 20, 1964, was Sunday.) The defendant advised the court he had employed Russell Shultz, a member of the Sedgwick County Bar, to represent him. Upon being advised that Mr. Shultz was not present, and having a trial scheduled to commence at 9:30 a. m., Judge Kandt continued the matter until 1:45 p. m. At that time, the parties appeared as before, including the defendant, but without Mr. Shultz. The court advised it had communicated with Mr. Shults who was in federal court in Wichita and did not know when he could be present, and stated, 'so I think we will proceed with the arraignment and five Mr. Shultz time to make an appearance with you later if he desires.' The information was read to the defendant, and after explaining the nature of the offense charged, the sentence prescribed upon conviction, and his right to have a trial upon the offense alleged, the court inquired of the defendant if he 'wished to plead to the charge.' The defendant replied in the negative and the court entered a plea of not guilty. The case was set for trial and the court fixed the defendant's appearance bond in the amount of $50,000, the same amount which had previously been fixed in the cases for which he escaped confinement, conditioned upon his appearance before the court on the first day of the January term. Pending the posting of proper bond, the defendant was ordered committed to the county jail.
On a date not shown by the record, the defendant's case was ordered transferred to division No. 4 of the district court since that division had an earlier assigned case involving the defendant. On March 1, 1965, Judge James V. Riddel, Jr., of division No. 4, for good cause shown and to facilitate a speedy trial, assigned all cases pending against the defendant to division No. 6 of the district court, Judge Robert T. Stephan presiding.
On that same day, March 1, 1965, the defendant appeared before Judge Stephan and requested that his retained counsel, Mr. Russell Shultz and Mr. Larry Kirby, be discharged. The record does not indicate whether Mr. Shultz or Mr. Kirby appeared for the defendant or filed any motion in his behalf during their employment. The court advised the defendant it would appoint counsel to represent him in all cases pending against him at 10:00 o'clock a. m. the following morning.
On March 2, 1965, the court appointed Mr. Stan Issinghoff, a former county attorney of Trego County and a practicing attorney in Wichita, as counsel for defendant in the four felony cases then pending against him in division No. 6. Mr. Issinghoff requested the court to continue all cases, including the instant case, to the next term. The request was denied, and all cases were set for trial on March 30, 1965.
There is some indication in the record that the first degree robbery charge was tried prior to the trial in the instant case and that Mr. Issinghoff represented the defendant at that trial. Be that as it may, the record affirmatively shows that Mr. Issinghoff made a request in writing to withdraw as counsel for the defendant, and on April 21, 1965, the court approved his withdrawal. Thereafter, and on that same day, the court appointed Mr. Melvin Gradert, a member of the Wichita Bar, to represent the defendant, remarking that Mr. Gradert was a former assistant United States attorney for the district of Kansas and had considerable experience with respect to criminal procedure and criminal law.
On May 3, 1965, the instant case came regularly on for trial. After a jury was duly impanelled, the court inquired if there were any objections to proceeding with formal arraignment of the defendant, Counsel stated he had no objection, and the court read the information in full to which the defendant entered a plea of not guilty. The state advised the defendant and his counsel in open court that should the defendant he convicted of the crime with which he was charged, sentence under the Habitual Criminal Act (K.S.A. 21-107a) would be sought. The jury was sworn at 12:30 p. m. and after being duly admonished, the court recessed until 2:00 p. m.
Prior to the jury's return at 2:00 p. m. on May 3, 1965, counsel for the defendant orally moved to dismiss the information and enter judgment of acquittal for the reason that the defendant was not brought immediately before the district court to be arraigned and that an appearance bond was not fixed in accordance with K.S.A. 62-805. The motion was overruled since the record made at the defendant's arraignment on December 21, 1964, clearly disclosed that an appearance bond in the sum of $50,000 was fixed by the court at that time. Through inadvertence the county attorney drew no formal order for the files indicating that bond had been set. However, there is no showing the defendant was prejudiced by the failure of the state to draw an order showing that an appearance bond in the sum of $50,000 had been fixed by Judge Kandt, since the defendant had not previously been able to provide such a bond.
The state made its opening statement to the jury, offered its evidence, and rested. The defendant did not testify and offered no evidence. After being duly instructed, the jury found the defendant guilty as charged in the information.
The defendant timely filed a motion for a new trial, alleging two grounds. First, that the verdict of the jury was not sustained by the evidence, and second, that the defendant did not received a fair trial because the jury was prejudiced and influenced into believing the defendant was a dangerous person by the constant presence of four sheriff's officers who sat immediately behind him during the entire course of the trial.
On May 21, 1965, the motion for a new trial was heard. Counsel for the defendant stated he was not seriously urging the first ground, but asked the court to sustain his motion upon the second ground because he felt the defendant was unduly prejudiced. In overruling the motion, the court stated:
Thereafter, the defendant was sentenced to confinement for the period of his life in the Kansas State Penitentiary upon the jury's verdict of guilty and in accordance with the Kansas Habitual Criminal Act.
On a date not disclosed by the record, defendant's presently retained counsel filed a motion to vacate and set aside the sentence on the grounds that (1) there was no authorization for the filing of an information by the county attorney directly in the district court without first affording the defendant a preliminary...
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State v. Jones, 44964
...plead in abatement was waived. (State v. Tucker, 115 Kan. 203, 222 P. 96; State v. Bland, 120 Kan. 754, 755, 244 P. 860; State v. McCarther, 196 Kan. 665, 414 P.2d 59.) See, also, State v. Pittman, 199 Kan. 591, 433 P.2d 550, and Gray v. State, 194 Tenn. 234, 250 S.W.2d 86. Moreover, the de......
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...plead in abatement was waived. (State v. Tucker, 115 Kan. 203, 222 P. 96; State v. Bland, 120 Kan. 754, 755, 244 P. 860; State v. McCarther, 196 Kan. 665, 414 P.2d 59.) See, also, State v. Pittman, 199 Kan. 591, 433 P.2d 550, and Gray v. State, 194 Tenn. 234, 250 S.W.2d 86. * * *' (202 Kan.......
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