State v. Rook

• Decision Date: 06 January 1900
• Docket Number: 11,467
• Citation: 61 Kan. 382,59 P. 653
• Parties: THE STATE OF KANSAS v. JOHN ROOK
• Court: Kansas Supreme Court

59 P. 653

61 Kan. 382

THE STATE OF KANSAS v. JOHN ROOK

No. 11,467

Supreme Court of Kansas

January 6, 1900

Decided January, 1900.

Appeal from Franklin district court; S. A. RIGGS, judge.

Judgment reversed.

A. A Godard, attorney-general, E. L. Branson, county attorney, and C. A. Smart, for The State.

A. H Case, and C. B. Mason, for appellee.

OPINION

DOSTER, C. J.:

This is an appeal by the state from an order quashing an information against the appellee, John Rook, for a felony, and upon a question reserved by the state upon an order sustaining the appellee's plea of the statute of limitations and discharging him from custody. On the 20th of March, 1899, the county attorney of Franklin county filed an information against the appellee for a burglary alleged to have been committed on the 26th day of February, 1896. As a reason for delaying the prosecution beyond the two-year period of limitation, the information contained the following averment:

"And I, said county attorney, give further information that a prosecution of the offense herein charged was commenced on the 7th day of March, A. D. 1896, and within two years after the commission of said offense, before George W. Batdorf, a justice of the peace in and for the township of Franklin in the county and state aforesaid, against this defendant, said defendant's name being at that time unknown, and the fact of defendant's name being unknown was stated in the complaint filed and warrant issued in the said prosecution that ever since the commission of the offense herein charged the defendant has continuously so concealed himself that process could not be served upon him."

To this information the appellee filed a motion to quash, for the reason that the offense charged was shown to have been committed without the statutory period for the commencement of the prosecution. At the same time he also filed a special plea of the two-year statute of limitations. The motion to quash and the special plea were heard and considered together. No evidence in support of the plea, or in opposition to it, was introduced, but in argument to the court, and for the purpose of evidence to be considered in connection with the plea, the county attorney made the following statement:

"If the court will permit me to make a suggestion, I will just state frankly what we have got. We expect to show that this man was pursued about twenty-four hours after the stuff was taken and chased down in Linn county for a considerable distance; that he abandoned his team and wagon and the stolen property and took across the field to the woods, and so far as we know has never been seen since by any one that we know of until about the time of his arrest; that a warrant was placed in the hands of the officers at Topeka, who wen to his residence, and were not able to find him until about the time of his arrest."

Following the quotation of this statement, the bill of exceptions contains the following recitals:

"Thereupon the court announced that the said facts if proven would not amount to a concealment, and that the court would so instruct the jury if the facts went to the jury, and the court held that under the facts stated by the state the action was barred; and further held that the motion to quash should be sustained and sustains the same, to which ruling and finding the state excepts, reserves the question and stands upon the information. The court thereupon orders the defendant discharged from custody, to which order the state excepts."

We have delayed the decision of this case to give consideration to a question involved in it, but which was not argued by counsel, and that is the effect of the appellee's discharge, after the trial by the court of his plea of the statutory bar, upon the right of the state to present and have determined the question reserved by it, to wit, the claimed error of the discharge. While the statute (Gen. Stat. 1897, ch. 83, § 30; Gen. Stat. 1899, § 5529) gives to the state a right of appeal "upon a question reserved by the state," yet, what questions may be reserved by it, or what as a matter of specific definition "a question reserved by the state" is, have never been definitely settled. A uniform line of decisions has maintained the proposition that no error, however flagrant, committed by the court against the state can be reserved by it for decision by the supreme court when the defendant has once been placed in jeopardy and discharged, even though the discharge was the result of the error committed. This for the reason that the accused, having been once in jeopardy, cannot be retried, after reversal of the case, upon the state's appeal, and the questions presented, being therefore moot in their nature, will not be considered by the court. (The State of Kansas v. Carmichael, 3 Kan. 102; City of Olathe v. Adams, 15 id. 391; City of Oswego v. Belt, 16 id. 480; The State v. Crosby, 17 id. 396; Junction City v. Keffe, 40 id. 275, 19 P. 735; The State v. Moon, 45 id. 145, 25 P. 614; The State v. Lee, 49 id. 570, 31 P. 147.)

In Junction City v. Keeffe, supra, a very general statement of the meaning of the phrase "question reserved by the state" was made. It was there remarked: "We believe the phrase 'question reserved by the state' is any exception embodied in a bill of exceptions where a defendant has been discharged for any cause except upon a trial on the merits, and the two exceptions named, supra." The exceptions referred to are judgments for defendants quashing indictments or informations and orders arresting the judgment. For the purposes of this case, and also many others, the above definition of a "question reserved by the state" is too general, in that it does not also define the meaning of the phrase "trial upon the merits." In the case under consideration, the appellee, by his plea of the statute of limitations, raised a question which, legally speaking, went to the merits of his case. Technically, it did not go to the question of his guilt or innocence, but it went to the merits of his claim of right to an acquittal or discharge. The plea of the statutory bar need not have been specially made by him. It could have been made as well under the plea of not guilty. While some of the cases countenance the making of pleas of statutory limitation as special defenses, and countenance trials upon them in advance of the hearing of the main issue, yet the general and better practice is to involve such pleas under the issue of not guilty. (1 Bish. New Cr. Proc. § 799; Whart. Cr. Pl. & Pr., 8th ed., § 317.) Such is the requirement of practice in this state. ( In re Stewart, 60 Kan. 781, 57 P. 976.) In case the special plea of the statute of limitations has been heard in advance of the trial of the main issue and has been denied, the accused is not precluded from again relying on the same facts under the plea of not guilty. (Thompson v. The State, 54 Miss. 740.)

It would seem, therefore, that a question material to the defense -- one that could have been properly involved under the general issue -- had been submitted to decision, and upon it a finding had been made in appellee's favor, and his discharge had been ordered. It will be observed that the trial of this question was to the court without a jury, and also that it was upon an agreed statement of facts, or, what was equivalent thereto, a statement of facts by the county attorney, which, for the purposes of the legal question that was to arise thereon, was accepted as correct. Trials of misdemeanors upon agreed statements have...