State v. Ricks

• Citation: 173 Kan. 660,250 P.2d 773
• Decision Date: 06 December 1952
• Docket Number: No. 38769,38769
• Parties: STATE v. RICKS.
• Court: United States State Supreme Court of Kansas

Page 773

250 P.2d 773

173 Kan. 660

STATE v. RICKS.

No. 38769.

Supreme Court of Kansas.

Dec. 6, 1952.

Syllabus by the Court.

1. The increased punishment for a second and third conviction of a felony, provided by our habitual criminal law. G.S.1949, 21-107a, is imposed as a disciplinary measure for those whom previous conviction and punishment have failed to reform.

2. G.S.1949, 21-107a is a law of general application and creates no exceptions with respect to any particular second or third felony previously committed.

3. The penalty provision of G.S.1949, 21-734 for escape from custody of an officer while outside the penitentiary walls but during the period of confinement for a previous felony is not excluded from the operation of G.S.1949, 21-107a. The offense of escape constitutes a second felony punishable by confinement in the penitentiary and the sentence on conviction of such offense must be doubled.

4. The state has an interest in the subject of trial by jury as a matter of public policy.

5. Although a defendant in a criminal case may waive his constitutional right or privilege of trial by jury he cannot by a mere waiver of a personal right bind the state and compel a court to try the case without a jury over the state's objection.

James N. Snyder, Assistant County Atty., Leavenworth, argued the cause, and Harold R. Fatzer, Atty. Gen., Paul E. Wilson, Asst. Atty. Gen., and Colonel H. Boone, County Atty., Leavenworth, were with him on the briefs for appellant.

James E. Fussell, of Leavenworth, argued the cause and was on the briefs for appellee.

WEDELL, Justice.

The state appeals from a sentence imposed after defendant's conviction on a charge he escaped from the custody of officers, without actually breaking prison, in violation of G.S.1949, 21-733 and 21-734.

The defendant has cross-appealed. We shall continue to refer to the parties as the state and the defendant. The main appeal will be considered first. The defendant was employed as a trusty outside the prison walls of the state penitentiary to which he had been committed for the commission of a felony. He left his employment and escaped. G.S.1949, 21-733 provides:

'If any person confined in the penitentiary for any term less than life shall escape from such prison or from the custody of the officers, he shall be liable to the punishment imposed for breaking the prison.'

G.S.1949, 21-734 reads:

'If any person confined at hard labor for any term less than life shall escape therefrom without being guilty of breaking such prison within the meaning of the preceding section, he shall upon conviction be punished by confinement and hard labor for a term not exceeding three years, to commence at the expiration of the original term of imprisonment.'

Defendant previously had been convicted of grand larceny and was serving a term in the penitentiary under a sentence of one to five years. The court sentenced the defendant on the charge of escaping from prison as provided in G.S.1949, 21-734. The state centends that was defendant's second conviction of a felony and he should have been sentenced pursuant to provisions of the habitual criminal statute, G.S.1949, 21-107a, the pertinent part of which reads:

'Every person convicted a second time of felony, the punishment of which is confinement in the penitentiary, shall be confined in the penitentiary not less than double the penalty of the second conviction * * *.'

The state asserts the habitual criminal statute contains no exceptions with respect to any particular felony; it was enacted and amended long after the enactment of G.S.1949, 21-734, and is controlling, citing State v. Woodman, 127 Kan. 166, 171, 272 P. 132, 134. The state emphasizes the following statements in the Woodman case:

'Any irreconcilable conflict between these statutes would have to be resolved in favor of the more recent enactment, although they were both incorporated in the general revision of 1923. [Citations.] By the same reasoning, the act of 1927 is paramount. However desirable it may be for the legislative draughtsman to include a repealing section in any new statute he is formulating, it is not absolutely required to do so. If the new legislation will not accord with all the older body of statutes, so much of the old as is in conflict with the new must impliedly yield to the latter as the last expression of the legislative will. [Citations.]'

The avowed purpose and salutary provisions of the habitual criminal law as a disciplinary measure for those whom previous conviction and punishment have failed to reform were stated early in State v. Woodman, supra, and need not be repeated here.

The state also argues no actual conflict exists in G.S.1949, 21-734 and G.S.1949, 21-107a. It argues the former statute prescribed the penalty for the felony committed and the latter statute merely provides such penalty shall be doubled. It further contends, as previously stated, if there is a conflict in the statutes the last expression of the legislative will controls.

We need not engage in a lengthy treatise on the law of repeals by implication. It, however, may be well to observe at the outset that G.S.1949, 21-734 does not purport to be and it is not a special habitual criminal law. In fact, it is not an habitual criminal law in any respect. Its sentencing provision merely prescribes the penalty for the offense committed. In that respect it does not differ in principle from any other statute which prescribes the punishment for a specific offense. The habitual criminal law is a subsequent general law and it is the only law which provides an additional penalty for the commission of a second and third offense. It does not conflict with G.S.1949, 21-734. It merely provides for the imposition of an additional sentence for every person who is convicted a second and third time of any felony, the punishment of which is confinement in the state penitentiary.

Assuming, however, there might be merit in the contention the statutes are in conflict, the general rule is that where an irreconcilable conflict exists the last enactment will be held to supersede, repeal or supplant the earlier by implication. Kimminau v. Common School District, 170 Kan. 124, 223 P.2d 689. It will not be presumed the legislature intended to leave contradictory enactments on the statute books. Kimminau v. Common School District, supra. In the final analysis courts look to the cardinal canon of construction to which all mere rules of interpretation are subordinate. It is that the legislative intent in subsequent legislation governs, Kimminau v. Common School District, supra, and such intent must be derived from the general terms and manifest purpose of the later law. Atchison, T. & S. F. Railway Co. v. Cowley County, 103 Kan. 681, 684-685, 176 P. 99. The habitual criminal law makes no exception of the instant offense. Its obvious purpose and intent is just as applicable to the instant offense as to any other. The sentence for the commission of the second felony should have been doubled.

We come now to defendant's cross-appeal in which he contends he was entitled to be tried by the court without a jury. At the time the cases were set for trial on a future date defendant waived trial by jury and requested that his case be tried by the court alone. The record does not affirmatively disclose the county attorney consented to such a request. The most that can be said is that the record discloses no objection to defendant's request by the county attorney at that time. It appears the court thereupon assented to defendant's request. On the day set for trial a continuance...