State v. Pittman
| Decision Date | 13 November 1967 |
| Docket Number | No. 44582,44582 |
| Citation | 199 Kan. 591,433 P.2d 550 |
| Parties | STATE of Kansas, Appellee, v. Leo Arthur PITTMAN, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. The proper method to attack the sufficiency of a preliminary hearing is by plea in abatement filed prior to arraignment and before the commencement of trial, and where a defendant delays his attack until after he has been arraigned and the jury has been sworn he is deemed to have waived whatever objection he may have had going to the preliminary hearing or the lack thereof.
2. Under our procedure, the preliminary hearing is not a trial in the usual and ordinary sense, nor in the sense that one may be found guilty thereat. The hearing does not, in and of itself, constitute a critical stage in criminal proceedings, but is solely for the purpoose of determining whether or not a crime has been committed, and if so, whether probable cause exists to charge the defendant with its commission.
3. The record is examined in a criminal proceeding in which the trial court held a preliminary inquiry to determine whether the defendant's oral confession was voluntarily given and thus admissible and it is held that the trial court's determination that the confession was admissible is supported by substantial competent evidence nd no error was committed in admitting the same.
Everett C. Fettis, Wichita, argued the cause, and Paul Arabia, Wichita, was with him on the brief, for appellant.
Keith Sanborn, County Atty., argued the cause, and Robert C. Londerholm, Atty. Gen., and Donald Foster, Deputy County Atty., were with him on the brief, for appellee.
The defendant, Leo Arthur Pittman, was convicted of three crimes: first degree kidnapping, statutory rape and sodomy. He was sentenced to life imprisonment on the kidnapping charge and to lesser terms on the other two. This appeal is from those sentences.
Two points, only, are raised on appeal:
1. That the defendant was denied the benefits of a preliminary hearing by reason of the examining magistrate's failure to appoint a sanity commission prior to the preliminary hearing to ascertain whether the defendant was sane and able to understand his position and aid in his defense.
2. That error was committed by the trial court in admitting evidence of the defendant's oral confession.
In view of the limited issues raised on this appeal, it will be unnecessary to relate the sorbid details of the three crimes charged against the defendant.
With regard to the first of the two points in issue, the defendant points out, and the record shows, that the attorney originally appointed to represent the defendant raised the question of his client's competency and his ability to understand his position and cooperate in his own defense, by means of a written motion filed in magistrate court prior to the preliminary examination. After lengthy colloquy and argument by counsel on both sides the magistrate reserved ruling until after the preliminary hearing was completed at which time, having heard all the testimony, he overruled the defendant's motion and bound the defendant over to the district court for trial.
It is the defendant's present contention that he was not sane or mentally competent, at the time his preliminary hearing was held, and he calls attention to the fact that some fifty days thereafter the district court appointed a sanity commission to aid that court in determining whether the defendant comprehended his position and was able to make his defense. Following the commission's report the district court found the defendant to be insane and unable to comprehend his position and assist in his own defense and, accordingly, committed the defendant to the Larned State Hospital. Following his commitment to that institution, the defendant escaped therefrom, in April, 1963, and was later committed to a mental institution in the state of Michigan, before being returned to Kansas to face the charges pending against him in Sedgwick County.
In view of all this, the defendant argues that he actually had no preliminary examination; that being insane at the time (which is his own assumption), he was not mentally present at the hearing; that the preliminary hearing was thus conducted in his absence, as though he were not personally present at all; and that being mentally absent from the preliminary examination was equivalent to being physically absent therefrom. Several Kansas cases are cited by the defendant as being pertinent to the issue he attempts to raise, including In re Wright, 74 Kan. 406, 86 P. 460, 89 P. 678, and State v. Detar, 125 Kan. 218, 263 P. 1071.
This is an interesting argument which might provide a fertile field for discussion were it not for the fact that we think the point has been waived by the defendant and is not properly before us for review. We will state our reasons.
When the defendant was returned to Kansas, the Sedgwick County District Court appointed an attorney to represent him and also appointed another sanity commission to determine the present sanity of the defendant and his ability to comprehend his position and conduct his defense. When this commission reported its findings, the trial court accepted them and found that the defendant was sane and able to comprehend his position and aid in his defense.
Trial commenced on January 4, 1966, on which date the defendant was arraigned and stood mute, whereupon the court entered a plea of 'not guilty'. The jury was sworn the next day, January 5, 1966. The following day, January 6, 1966, defense counsel orally moved that the defendant be discharged for the reason that he had been denied a preliminary hearing.
We believe the motion for discharge came too late. Whatever objections the defendant wished to voice against the preliminary examination, or lack of it, should have been presented by means of a plea in abatement prior to his arraignment, not after he had been arraigned and the jury had been empanelled and sworn.
This court recently considered the identical question in some depth in State v. McCarther, 196 Kan. 665, 414 P.2d 59, where many of our own cases are cited, both ancient and modern. We shall not attempt an analysis of the McCarther decision other than to quote two of its passages which we feel are especially apt:
'It is a well-established rule of criminal procedure in this state that where there has in fact been no preliminary examination afforded the defendant, he is required to raise the question of the lack of such an examination prior to arraignment by filing a plea in abatement * * *.
(196 Kan. p. 671, 414 P.2d p. 64.)
Our most recent pronouncement on the subject appears in Palmer v. State, 199 Kan. 73, 427 P.2d 492, where we said:
(199 Kan. p. 75, 427 P.2d p. 495.)
We have often said that the preliminary hearing held pursuant to our statutes is not a trial in the usual or ordinary sense. (Cooper v. State, 196 Kan. 421, 411 P.2d 652.) Neither is it a trial in the sense that one may be found guilty thereat. (Smith v. State, 196 Kan. 438, 411 P.2d 663.) The preliminary examination under our procedure does not, of itself, constitute a critical phase of pending criminal proceedings; its sole purpose is to determine whether a crime has been committed, and if so, whether there is probable cause to charge the defendant with its commission. (Williams v. State, supra.)
There is nothing in the circumstances shown in the present record to suggest that any prejudice has resulted to the defendant from anything which occurred at the preliminary hearing. No plea was entered, no right to any defense was waived or lost, no testimony introduced at the hearing was later used at the trial. Under circumstances disclosed by this record a defendant may not wait until after he has been arraigned to attack the validity of the preliminary examination. The defendant's failure to act in this case, until after he was arraigned and the jury had been sworn, constitutes a waiver of his right to object to the regularity of the preliminary hearing.
For his second point the defendant maintains that his confession was inadmissible as having been made involuntarily. Objection on this ground was interposed by defendant during the trial, at which juncture the court conducted a preliminary inquiry outside the presence...
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State v. Sharp
...confessed — were such as to render the confession untrustworthy. 240 Kan. at 597, 731 P.2d 294. Similarly, in State v. Pittman, 199 Kan. 591, 433 P.2d 550 (1967), there was evidence that the chief of police told the defendant during questioning that if he was holding back through fear of wh......
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State v. Paulson
...if the criteria for admission or, as in this case, for a hearsay exception have been met. See K.S.A. 60–408 ; State v. Pittman, 199 Kan. 591, 596, 433 P.2d 550 (1967) (In making a preliminary determination as to the admissibility of a criminal defendant's confession to police, the district ......
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State v. Jones, 44964
...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 defendant was arrested by the officers on July 18, at the St......
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State v. Addington
...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. p. 39, 446 P.2d p. Before examining the remainder of defe......