State v. Nading, 47210

• Decision Date: 02 March 1974
• Docket Number: No. 47210,47210
• Citation: 214 Kan. 249,519 P.2d 714
• Parties: STATE of Kansas, Appellee, v. Charles L. NADING, Appellant.
• Court: Kansas Supreme Court

Page 714

519 P.2d 714

214 Kan. 249

STATE of Kansas, Appellee, v. Charles L. NADING, Appellant.

No. 47210.

Supreme Court of Kansas.

March 2, 1974.

Rehearing Denied April 10, 1974.

Syllabus by the Court

The record in a criminal action wherein defendant was convicted by a jury of the offense of attempted aggravated burglary, is examined and it is held: (1) The trial court did not err in (a) denying defendant's motion to dismiss on the ground that, following his arrest, he was not taken before the nearest available magistrate without unnecessary delay, or in (b) admitting into evidence two previous convictions of defendant and certain exhibits found near the scene of the alleged offense; and (2) the evidence sufficiently supported the conviction.

John W. White, Smith & White, Chartered, Humboldt, argued the cause and was on the brief for appellant.

James M. Immel, County Atty., argued the cause, and Vern Miller, Atty. Gen., was with him on the brief for appellee.

HARMAN, Commissioner.

Charles L. Nading was convicted by a jury of the offense of attempted aggravated burglary. His motion for new trial was denied, he was sentenced and now appeals.

Prosecution testimony revealed the following. Mrs. Mary Hansen was asleep in her residence at 423 North State street in Iola during the early morning hours of April 8, 1972. Present in her house with her were her children and a girl. At about 4:00 a.m. Mrs. Hansen awoke, sensing something was wrong. She got up and checked on the girl and her children. When she returned to her bedroom two men were standing close together right outside her bedroom window. There was a street light in the area located on the west side of the Hansen house. Mrs. Hansen went to the kitchen, got a drink of water and returned to her bedroom where she could see the men right outside her bedroom window again. She was frightened but she waited a short while to ascertain whether the men were just passing through her yard. She then went to the kitchen, called the police and returned to her bedroom where she could see the two men 'rounding the front porch again as though they had circled the house.' About five minutes elapsed from the time Mrs. Hansen first saw the two men until police arrived.

Two Iola city patrolmen responded to the police radio dispatcher's call, arriving near the Hansen house in an unlighted police car. These officers noticed two men near a window of the Hansen home. One officer, who had alighted and gone on foot around the house from the other direction, testified both men had their hands around the window frame and it looked as though they were attempting to remove the storm window from the house. This officer saw the two men then go to the rear entrance to the house where one of them opened the screen door and the other tried to open the inside door by turning the knob. At this point the officer remaining in the police vehicle turned on the patrol car lights and the two men started to run. They ran close to Mrs. Hansen's automobile which was parked in a driveway and as they did so one officer observed them throwing some objects under the Hansen car. The men were immediately apprehended by the two officers. One was appellant Charles L. Nading, the other was Clinton J. Myers. The two stated they had hitchhiked to Iola and that they were just 'prowling' around. When arrested appellant was wearing a camouflaged colored hat, brown coveralls, cowboy boots and jersey gloves. It was a warm night-temperature was about sixty-five to sixty-seven degrees. The arresting officer was wearing a short sleeved shirt and didn't need gloves to keep his hands warm.

The officers took the pair immeditely to the police station and booked them for the offense of prowling. The officers then returned to the Hansen home and looked under the Hansen vehicle. There they found a five pound sledgehammer, two long drift punches and a .32 caliber automatic pistol containing a clip loaded with cartridges. Laboratory analysis of these items revealed no fingerprints. The punches were of a type which could be used to knock the dial off a safe. When Mrs. Hansen had parked her vehicle about ten o'clock the night before there was nothing in the driveway under it.

Appellant testified in his own behalf: He had been drinking in taverns in Parsons the afternoon and evening of April 7, 1972; sometime after midnight he, his codefendant Myers and a Henry Burik left Parsons in Burik's automobile, intending to drive to Leavenworth where Myers knew some people; prior to leaving Parsons they had purchased two pints of bootleg whiskey; while in Burik's car Myers and Burik had two arguments about the manner in which Burik drove the car; the first occurred on a county road south of Iola, the second about a mile north of the Iola truck stop on the main highway; there appellant and Myers got out of the Burik vehicle and walked back to Iosa; they were intending to walk back to Altamont; they stopped in Iola to rest on the front porch of the Hansen house; they then walked around the house to the rear to try to find a hydrant because they were thirsty; there police told them to stop and arrested them; appellant did not run because he was too drunk to run; he did not have the sledgehammer, punches or pistol in his possession and he did not see Myers have them; he did not look into the window of the Hansen house and had no intention of taking anything from it; he was first notified he was charged with attempted burglary when a warrant was given to him late Saturday evening, April 8, 1972, while he was in jail.

Henry Burik testified in appellant's behalf, generally corroborating appellant's testimony as to events occurring in Parsons and on the journey to the point one or two miles north of Iola where appellant and Myers were left afoot; at this time both were drunk; after proceeding to the first town north Burik returned to Iola where he drove around but did not see his erstwhile passengers.

Appellant was charged jointly with Myers but was granted a severance and tried separately.

Appellant's first point on appeal is that the trial court erred in denying his motion to dismiss because, subsequent to his arrest, he was not taken before the nearest available magistrate without unnecessary delay, nor was a complaint filed against him forthwith, as provided by K.S.A. 1973 Supp. 22-2901.

First of all, appellant asserts he was arrested during the early morning hours of Friday, April 7, 1972. Counsel for appellee does not take issue with this assertion and in fact concedes it; nonetheless, the record conclusively reveals the offense was committed and appellant was arrested during the early morning hours of Saturday, April 8th. The confusion appears to have developed in this fashion-at a hearing on a motion to dismiss, held June 9, 1972, more than three months prior to trial, counsel for appellant stated that appellant was arrested on April 7, 1972, and he recited the dates of further events; the then county attorney replied: 'I believe that is correct'; a transcript of this hearing was embodied in a supplemental record on appeal and present counsel appear to have accepted the April 7th date mentioned therein.

The record on appeal reveals that the complaint, prepared April 8, 1972, and the information each charged the offense as having occurred on April 8, 1972; every witness whose testimony appears in the record on appeal (Mrs. Hansen, the two arresting patrolmen, appellant and Henry Burik) clearly and specifically fixed the offense and arrest as having occurred during the early morning hours of Saturday, April 8th.

Further events, concerning which no confusion appears, are: On Saturday afternoon, April 8th, a complaint was filed and after the judge of the county court had received evidence from police officers a warrant charging appellant with attempted aggravated burglary was issued; the warrant recited the sum of $2,500 as the amount of appearance bond required; the warrant was exhibited to appellant the evening of Saturday, April 8th, while he was in jail; appellant was taken before the judge of the county court at about 1:30 p.m. on Monday, April 10, 1972.

K.S.A.1973 Supp. 22-2901 provides in part:

'Appearance before the magistrate. (1) When an arrest is made in the county where the crime charged is alleged to have been committed, the person arrested shall be taken without unnecessary delay before a magistrate of the court from which the warrant was issued. If the arrest has been made on probable cause, without a warrant, he shall be taken without unnecessary delay before the nearest available magistrate and a complaint shall be filed forthwith.'

It has been said the purpose of the foregoing is to insure that any person arrested is held on a proper charge and to secure to such person the earliest possible opportunity for bail (12 Vernon's K.S.A. Code of Criminal Procedure, § 22-2901, p. 502.) The phrase 'without unnecessary delay' is taken from Rule 5, Federal Rules of Criminal Procedure, and is intended to provide a measure of...