State v. Stiff
| Decision Date | 11 April 1925 |
| Docket Number | 25,458 |
| Parties | THE STATE OF KANSAS, Appellee, v. JAMES L. STIFF, Appellant |
| Court | Kansas Supreme Court |
Decided January, 1925.
Appeal from Cowley district court; OLIVER P. FULLER, judge. Opinion on rehearing filed April 11, 1925. Former order adhered to. (For original opinion of reversal, see 117 Kan. 243, 231 P 48.)
Order adhered.
L. D Moore, of Winfield, for the appellant.
Charles B. Griffith, attorney-general, Frank C. Baldwin, C. A Burnett, assistant attorneys-general, C. H. Quier, county attorney, and S. M. Brewster, of Topeka, for the appellee.
On the application of the plaintiff, a rehearing was granted in this action. The former opinion is reported at The State v. Stiff, 117 Kan. 243, 234 P. 48. The second proposition there discussed was not treated in sufficient detail.
The facts stated in the opinion remain as they were there stated. In addition, it should be noticed that at the first trial, when the state, after the jury had been sworn, asked leave to amend the information, the defendant objected and that the court thereupon denied the application of the state to amend the information, set aside the order denying the motion to quash the information, quashed it, and discharged the jury from further consideration of the case. At that time the defendant did not request that the information be quashed, did not make any objection to going ahead with the trial, did not request that the jury be discharged, and did not object to the order sustaining the motion to quash the information and discharging the jury. He remained silent.
The state argues that the defendant, by his motion to quash the information, invited the orders made and waived his right to plead former jeopardy. The court, on its own motion, set aside the order denying the motion to quash, and discharged the jury. The defendant did not then present his motion to quash, nor request that it be sustained. He did not invite the action of the court.
The situation now presented is the same as it would have been if the trial had proceeded to a verdict of guilty, the defendant had been asked if he had any cause to show why judgment should not be pronounced against him, he had remained silent, the state had then asked leave to amend the information, the defendant had objected, the court had denied leave to amend, and had then set aside the verdict and had sustained the motion to quash.
On the trial of a person charged with a felony, courts should not hold that constitutional rights are waived unless the defendant directly waives them or requests or consents to some action that in itself amounts to a waiver. Courts should not hold that such rights are waived by silence. Here the defendant was silent when the information was quashed and the jury was discharged.
In 16 C. J. 254 the following language is found:
Jeopardy had not attached at the time the defendant presented his motion to quash the information, nor at the time the motion was denied. Filing a motion to quash a valid information does not prevent jeopardy from attaching, when a jury, after the motion is denied, is sworn to try the cause....
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...(1943), 153 Fla. 711, 15 So.2d 613; State v. Grayson (Fla.1956), 90 So.2d 710; State v. Stiff (1924), 117 Kan. 243, 234 P. 700, reh. 118 Kan. 208, 234 P. 700; Sussman v. District Court of Oklahoma County (Okl.Cr.1969), 455 P.2d 724; People v. McGrath (1911), 202 N.Y. 445, 96 N.E. 92; Matter......
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