State v. Neer

• Court: Kansas Supreme Court
• Writing for the Court: THIELE
• Citation: State v. Neer, 169 Kan. 743, 222 P.2d 558 (Kan. 1950)
• Decision Date: 07 October 1950
• Docket Number: No. 37956,37956
• Parties: STATE v. NEER.

Page 558

222 P.2d 558

169 Kan. 743

STATE v. NEER.

No. 37956.

Supreme Court of Kansas.

Oct. 7, 1950.

Syllabus by the Court.

1. Errors of law occurring at the trial of a criminal action and not presented in a motion for a new trial cannot be considered on appeal.

2. The defendant in a criminal trial who enters a plea of guilty must announce to the trial court before he is sentenced that he desires to file a motion for a new trial, G.S.1935, 62-1604, G.S.1947 Supp. 62-1722, 1723, and such a motion filed nine days after sentence is too late.

3. Assuming that a motion denominated as one to set aside a judgment and for a new trial may raise any question other than errors occurring at the trial, it is not subject to review on appeal were the record fails to disclose the ruling of the trial court thereon.

4. On the assumption that the appeal taken from the judgment sentencing the defendant raises the question of the sufficiency of the information on which the defendant was tried, the record is examined, and for reasons set forth in the opinion, the contention of insufficiency is not sustained.

Walter F. McGinnis, Jr., of El Dorado, argued the cause, and was on the briefs for appellant.

O. J. Connell, Jr., County Attorney, El Dorado, argued the cause, and Harold R. Fatzer, Attorney General, and J. Morris Moon, Jr., Assistant County Attorney, Augusta, were with him on the briefs for appellee.

THIELE, Justice.

This appeal follows a conviction in a criminal prosecution.

Bill Neer was arrested on a warrant charging him with breaking into a building in the nighttime and stealing thirty bushels of wheat. He waived a preliminary hearing and was bound over for trial in the district court. In that court an information was filed charging him with willfully, unlawfully and feloniously breaking into a building, in the nighttime, where valuable goods and merchandise were kept and taking, stealing and carrying away thirty bushels of wheat, the property of Ed Gaskel.

On November 14, 1949, the opening day of the term, the trial court inquired whether Neer had an attorney or was able to employ one and upon negative answers being given the court appointed an attorney for him and set the trial for December 1, 1949.

When the cause came on for trial on that day the defendant, through his counsel, entered a plea of guilty, and the court, addressing the defendant personally, asked if it was his desire to plead guilty to burglary and larceny as charged, to which the defendant answered in the affirmative, and he answered 'No, sir' to a later question whether he knew of any reason why the court should not pronounce sentence, and thereafter he was sentenced to the state penitentiary for not to exceed ten years on the charge of burglary and five years on the charge of larceny, the sentences to run concurrently. It is here noted that the defendant did not indicate or announce to the trial court any desire to file a motion for a new trial and none was filed.

On December 9, 1949, the defendant, through another attorney, filed a document entitled 'Motion to set aside judgment and motion for new trial.' The gist of the motion is that Neer moved that the trial and judgment of December 1, 1949, be set aside for the reason that he had not been properly informed of his rights by the attorney appointed for him; that he was advised he would receive a sentence requiring him to serve not over one year and that he might as well plead guilty as he admitted the larceny and the sentence would be the same, whereas in fact he entered a plea of guilty to a greater degree of crime in pleading guilty to burglary in the second degree; that he was not guilty of burglary and was entitled to a trial upon that charge; that the sentence imposed upon him was improper and illegal; that the pleadings do not set out the statute or statutes under which he was charged or sentenced; that he was deprived of his right to representation by failure of his appointed attorney to properly advise him of his rights so that he would understand the crime or crimes or which he was charged with committing; that the information failed to charge a crime under the laws of the state and should have been quashed for that reason; and that he pleaded guilty to and was sentenced for a crime with which he was not charged. If this motion was ever ruled on by the trial court, the abstracts do not disclose the ruling.

On December 10, 1949, the defendant served notice of appeal to this court from that part of the judgment of the trial court sentencing him to the state penitentiary and from no other ruling.

In this court appellant specifies error in five particulars: 1. Imposition of...