State v. Ramirez

• Decision Date: 07 November 1953
• Docket Number: Nos. 39194-39199,s. 39194-39199
• Citation: 175 Kan. 301,263 P.2d 239
• Parties: STATE v. RAMIREZ. STATE v. SPRINGER. STATE v. SCHLEIFER. STATE v. FRYE. STATE v. JONES et al. STATE v. MILLSTEAD.
• Court: Kansas Supreme Court

Page 239

263 P.2d 239

175 Kan. 301

STATE v. RAMIREZ.

STATE v. SPRINGER.

STATE v. SCHLEIFER.

STATE v. FRYE.

STATE v. JONES et al.

STATE v. MILLSTEAD.

Nos. 39194-39199.

Supreme Court of Kansas.

Nov. 7, 1953.

Syllabus by the Court.

1. In this state the right of appeal from rulings, orders and judgments in criminal actions rests upon statutory authority which will not be enlarged or expanded by construction.

2. The provisions of G.S.1949, 62-1703, providing that appeals may be taken by the state in the following cases, and no other: First, upon a judgment for the defendant on quashing or setting aside an indictment or information; second, upon an order of the court arresting the judgment; third, upon a question reserved by the state, construed and held--that the third subdivision of such section of the statute is limited and restricted to questions reserved by the state during the trial of a criminal action.

Donald E. Martin, County Atty., Kansas City, Harold R. Fatzer, Atty. Gen., Paul A. Wilson, Asst. Atty. Gen., Newell A. George, Asst. County Atty., and Donald A. Hardy, Asst. County Atty., Kansas City, on the briefs, for appellant.

Blake A. Williamson, Kansas City, argued the cause and was on the briefs, for appellees, Manuel Ramirez and Ralph Schleifer.

T. M. VanCleave, Jr., and David W. Carson, Kansas City, on the briefs, for appellee, Joseph F. Springer.

J. D. Lysaught and Arthur J. Stanley, Jr., Kansas City, on the briefs, for appellee, Ralph K. Frye.

James D. Howell and Wm. E. Scott, Kansas City, on the briefs, for appellees, Rance Jones, Robert R. Osborne and Walter C. Millstead.

PARKER, Justice.

These cases were initiated by the filing in district court of indictments returned by a grand jury against the divers persons hereinabove named as appellees. The appeals, consolidated in this court for purposes of appellate review, are from orders of the district court of Wyandotte County, three judges sitting en banc, overruling the state's demurrers to the first count of separate pleas in abatement filed by such persons as defendants, asking that the action be abated and the indictments set aside for the reasons and on the grounds therein set forth. For informative purposes it should be noted at this point that the state's demurrers to the second count of such pleas in abatement were sustained and the rulings thereon are not now involved.

The parties concede, that except for differences in the nature of the offenses charged in the indictments, the pleadings and orders in all cases in question are substantially the same and the issues of law identical. Therefore, since pleadings and proceedings in the court below, prior to the filing of the pleas in abatement, have no bearing on the issues involved they will not be mentioned or discussed in this opinion which, so far as a factual statement is concerned, will be limited strictly to matters pertinent to a disposition of such issues.

The court of the pleas in abatement to which the demurrers were sustained is not abstracted and cannot be detailed. With respect to the count on which the demurrers were overruled it may be stated that after setting forth the name of the defendant involved, and the date on which the grand jury returned the indictment against him, each such count alleges that the indictment in question should not be sustained and that the action should be abated for the following reasons:

'1. The pretended grand jury which returned the said indictment had no legal authority to inquire into the alleged offenses charged in said indictment, in that no petition praying for a grand jury and signed by at least seven hundred (700) taxpayers of Wyandotte County was presented to the District Court of Wyandotte County at least forty (40) days before the commencement of the term of court at which a grand jury was desired by petitioners, as required by Sections 62-901 General Statutes of Kansas, 1949; and the District Court of Wyandotte County therefore had no power or authority to order that a grand jury be drawn and summoned to attend at the March 1952 term of said court.

'The petitions which were filed in the office of the Clerk of the District Court of Wyandotte County on January 17, 1952, bore purported signatures of 1418 persons, represented to be taxpayers of Wyandotte County, whereas, in truth and in fact, 757 of the persons whose purported signatures appeared on the said petitions were not, at the time the said petitions were filed and presented, taxpayers of Wyandotte County. Of the remaining 661 signatures, 63 were signed 'Mr. and Mrs. ________'; and of the remaining 598 signatures, at least ninety-seven (97) were not the signatures of the persons whose names were purported to have been signed.

'757 persons corruptly and falsely represented themselves to this Court to be taxpayers of Wyandotte County and the person or person who filed and presented the said petitions and whose names are not known to the defendant, corruptly filed and presented the said petitions when they knew that at least ninety-seven (97) of the pretended signatures appearing thereon were not the genuine signatures of the persons whose names they purported to be.'

Following the overruling of the demurrers to the foregoing count of the pleas in abatement the state announced it reserved the question involved in that ruling. Thereafter the cause was continued and a notice of appeal, stating it appealed to this court from that part only of the order made by the district court in adjudging that its demurrer to ground No. 1 of the defendants' respective pleas in abatement be overruled, was given in each case.

At the outset appellees challenge the right of the state to be heard in this court and insist its appeal must be dismissed because no appeal lies from an order overruling a demurrer to a plea in abatement. This, of course, is a jurisdictional challenge and must be given consideration. In approaching this question it should be remembered that in this state appeals in criminal cases are governed by statute, State v. Wallace, 172 Kan. 734,243 P.2d 216, and that under our constitution, Art. 3, § 3, and repeated decisions (See State v. McCombs, 164 Kan. 334, 337, 188 P.2d 922, and cases cited) matters are only appealable when authorized by its terms.

Resort to our code of criminal procedure reveals two statutory provisions conferring the right of appeal in criminal cases. It is interesting to note that such provisions have remained unchanged in our statute since 1868.

The first of these is G.S.1949, 62-1701, granting a defendant the right of appellate review. It reads:

'An appeal to the supreme court may be taken by the defendant as a matter of right from any judgment against him; and upon the appeal any decision of the court or intermediate order made in the progress of the case may be reviewed.'

The second is G.S.1949, 62-1703. It prescribes the conditions, circumstances and grounds on which the state may take an appeal and provides:

'Appeals to the supreme court may be taken by the state in the following cases, and no other: First, upon a judgment for the defendant on quashing or setting aside an indictment or information; second, upon an order of the court arresting the judgment, third, upon a question reserved by the state.'

Merely to read the section of the statute last above quoted makes it obvious the first two subdivisions thereof have no application and that the state's right of appellate review, under the facts of this case, must stand or fall upon whether the third subdivision grants it the right of appeal from an intermediate order such as is here involved. The appellees insist the phrase 'upon a question reserved by the state' has reference to orders or judgments that are final in nature, not to interlocutory rulings or orders. On the other hand the state contends that such phrase is to be construed as comprehending and including all orders made in the trial of a criminal case, regardless whether they be intermediate or final. This, we may add, is its position notwithstanding we have held. (See, e. g., Cummings v. State, 4 Kan. 225; State v. Coffelt, 66 Kan. 750, 71 P. 588; State v. Wallace, supra), that in criminal cases brought to the supreme court by appeal intermediate orders made in the progress of a trial can be reviewed only after judgment and gone so far as to hold (See State v. Levine, 125 Kan. 360, 264 P. 38; State v. Brown, 144 Kan. 573, 61 P.2d 901) that in such actions no appeal lies from an order sustaining a demurrer to a plea in abatement until after trial and final judgment has been rendered. It must be conceded all of the cases to which we have just referred involve appeals by a defendant, not by the state. Nevertheless, they are entitled to consideration in construing the force and effect to be given the phrase 'upon a question reserved by the state' as used in 62-1703, supra, especially when it is remembered that under its first subdivision the legislature made specific reference to the type of rulings on pleadings from which the state might have the right of appeal, namely a judgment quashing or setting aside an indictment or information.

In support of their position the appeal should be dismissed appellees rely on two Kansas decisions and several from foreign jurisdictions. These have been considered and will be reviewed briefly.

The early case of Junction City v. Keeffe, 40 Kan. 275, 279, 19 P. 735, was an appeal by the state from an order sustaining a motion to quash a warrant. The later case of State v. Rook, 61 Kan. 382, 59 P. 653, 49 L.R.A. 186, involved an appeal from an order quashing an information. Both cases were treated as appeals falling directly within the first subdivision of 62-1703, supra, and for that reason are of little value as precedents. However, 61 Kan. at page 385, 59 P. at page 654 of the opinion in the Rook case the following statement, on which appellees place great weight, appears:

'In Junction...