State v. Weigand, 45547

Decision Date07 March 1970
Docket NumberNo. 45547,45547
Citation466 P.2d 331,204 Kan. 666
PartiesSTATE of Kansas, Appellee, v. W. D. WEIGAND, Appellant.
CourtKansas Supreme Court

Syllabus by the Court

1. The granting of a continuance in a criminal prosecution is largely within the discretion of the trial court and its ruling in the matter will not be disturbed unless it affirmatively appears that such discretion has been abused to the extent that a defendant's substantial rights have been prejudiced.

2. The duty of the trial court to appoint counsel imposed by K.S.A. 62-1304 is not discharged by an assignment of counsel at such time or under such circumstances as to preclude the giving of effective aid in the preparation and trial of the case.

3. The record on appeal is examined in a prosecution for obtaining money under false pretenses and it is held the accused was denied the effective assistance of counsel in violation of the fundamental principles of due process of law when he was forced to trial ten or fifteen minutes after counsel was appointed.

Jack W. Shultz, Dodge City, for appellant.

David L. Patton, County Atty., for appellee.

FROMME, Justice:

The defendant, W. D. Weigand, was convicted by a jury of feloniously defrauding a doctor in Dodge City, Kansas, of $5,000 by false pretenses in violation of K.S.A. 21-551. Defendant was sentenced to the penitentiary for a period of not more than five years. This is a direct appeal from that conviction.

The charge arose from the defendant's activities in promoting a marketing corporation to be organized for the purpose of promoting sales of a new and modern product to replace the common tooth brush. The product is a brushless toothpaste in tablet form called 'Foam-ettes'. The tablet foams in the mouth when it is chewed and releases food particles from the teeth without brushing. After the doctor in Dodge City had examined and used a sample tablet he paid the defendant $5,000 for stock in the proposed corporation. The corporation was never formed and the doctor received no shares of stock.

On appeal the defendant urges various trial errors including lack of evidence of misrepresentation as to existing facts. In view of our present decision we are concerned in this appeal with but one claim, denial of the effective assistance of counsel. This claim arises by reason of the trial court's order requiring counsel to begin trial on the day counsel was appointed. The appointment of counsel was made pursuant to K.S.A. 62-1304. A re sume of the events bearing upon this claim follows.

Defendant was present at a preliminary hearing on November 15, 1967. His retained counsel, Fred Hall, was present and preliminary hearing was waived. On May 20, 1968, the district court at the request of defendant and his retained counsel continued the trial to the fall term. That term of court began September 23, 1968. The trial was set for September 25 at which time all parties appeared. Mr. Hall asked and was permitted to withdraw from the case because of his health. The court inquired if defendant had another lawyer hired. The defendant advised he did not but he assured the court that he could and would hire counsel. The case was reset for trial October 7 at 10 o'clock a. m. and defendant was advised by the court to have his trial counsel enter his appearance in the case by September 27. No entry of appearance was made and nothing further occurred until the court convened for trial on October 7. The defendant was present without counsel and the following colloquy occurred in open court:

'THE COURT: Do you have anybody that is coming to represent you in this matter in any respect?

'THE DEFENDANT: I am going to find one today, and I'll bring them back here at a date specified in person, Your Honor.

'THE COURT: Where are you going to find them?

'THE DEFENDANT: I am going to go to Olathe, Kansas, this afternoon, and I am going to visit with my good friend, John Anderson.

'THE COURT: This case is going to trial today, Mr. Weigand. If you want to call local counsel here and get somebody up here to consult with you in this case, why, that is fine. Do you have anybody locally that you want to consult with?

'THE DEFENDANT: I don't know anyone that will, but I'll get in the telephone directory and find someone, if it pleases the Court.

'THE COURT: You are wasting a lot of the jurors' time, but I'll give you until 1:15. The case goes to trial at 1:15. That is going a little further then I intended to when we opened court this morning, seeing that you hadn't contacted the court with reference to the fact you didn't have counsel, when you assured me that you would have counsel make an appearance in this case a week ago last Friday, and you make no contact with the court until just a few moments before 10:00 this morning and then to tell the court that you were in traffic court downstairs.'

At 1:15 p. m. court convened and the colloquy continued as follows:

'THE COURT: The State is present by the county attorney and the defendant, W. D. Weigand, is present in court personally.

'Have you secured counsel to represent you?

'MR. WEIGAND: Your Honor, I searched in the short time I had. I do not have the funds immediately available to hire an attorney. I talked with Mr. Don Shultz, and I do not have the fee immediately. So the only alternative I have is to ask the court to appoint counsel at this time.

'THE COURT: Mr. County Attorney, would you call Mr. Jack Shultz to come up here.

'We'll take a short recess.'

A ten minute recess was taken and attorney Jack Shultz was summoned and appointed to represent the defendant.

On being appointed defense counsel requested a continuance and stated his reasons as follows:

'MR. SHULTZ: May it please the court, I cannot as court appointed counsel for this accused possibly be prepared to try this matter and to fully represent him, as I would have the duty to do, either today beginning with the impaneling of the jury or tomorrow morning.

'The court well knows KSA 62-1304 relating to court appointed counsel required that counsel appointed to represent accused in a criminal matter, a felony matter such as this, must fully and fairly represent that accused. I feel that being hurried into this matter at this time, knowing no more than I do about even the charge, knowing no more than I do about the State's evidence, knowing no more than I do about the defendant's evidence in his own behalf, it would certainly be making it impossible for me to comply with the provisions of that statute.

'I would, therefore, move at this time that the defendant be granted a continuance for a period of at least two weeks in order that I might become fully apprised of the charge and the evidence available, in order that I might fully comply with this statute and fully and fairly represent this defendant. I just cannot possibly after briefly talking with this man and just getting a brief look at what I am going to have to do to properly prepare this matter, cannot possibly have it done by tomorrow.

'I don't know what previous problems have gone on in relation to counsel to represent Mr. Weigand and of course at this point that is not my concern. My concern is that he be fully and fairly and properly represented, and to require me to attempt to do that on an overnight preparation basis is just an impossibility.

I think it will require a minimum of two weeks to prepare this matter properly.

'At this point, Your Honor, I might add of course the defendant is constitutionally entitled to compel the presence for testimony of witnesses in his own behalf. At this point I have not even had a shadow of the time I need to discuss with him who these witnesses might be and where they might be found and fully prepare in that regard, and of course he is entitled to that, and I think it is going to require some time, and I ask for that time. I do this realizing the inconvenience to the court and to these persons we have drawn as jurors, but I feel the constitutional rights of this man weigh a little heavier than that.'

The court responded:

'The court is well aware of the spot that counsel is in. The court is also aware of the fact that this case has been set down for some time and continued better than two weeks ago to this date, and nothing was done to apprise the court that this situation would arise until this morning, and I think the defendant has had all the consideration he is entitled to from the court, and I am going to direct that the jury be selected this afternoon and the case go to trial tomorrow morning at 11:00 o'clock.

'I am going to direct the county attorney in the meantime to make available to you his witnesses for consultation.'

Thereafter the defendant was arraigned a second time and entered a plea of not guilty. Counsel were then directed to select a jury to try the case. After voir dire examination the jurors were sworn. The trial proceedings were then adjourned to the following morning, October 8.

When court convened on October 8 counsel for the defendant renewed his motion for a continuance on the grounds previously urged. He requested permission to further examine the jurors in light of information he had acquired. He requested an order requiring the prosecution to make its papers and files available to him. The court denied the request to reexamine the jurors but continued the trial to the following morning in order to enable the defense to subpoena witnesses and to examine documents in the prosecutor's file.

The following morning when court convened the trial resumed and the state presented its evidence. The defendant...

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8 cases
  • Davila v. State
    • United States
    • Wyoming Supreme Court
    • April 23, 1992
    ...or personal jurisdiction. Webb, 467 N.W.2d at 114. See also Humphrey, 823 P.2d 464. Nearly the same result occurred in State v. Weigand, 204 Kan. 666, 466 P.2d 331 (1970) where appointed counsel was given ten minutes to prepare after the accused's employed counsel had withdrawn. After a gui......
  • State v. Miller
    • United States
    • Kansas Court of Appeals
    • November 16, 1979
    ...appointed counsel to withdraw. A fourth Kansas case also involves Appointed counsel, but is helpful. The defendant in State v. Weigand, 204 Kan. 666, 466 P.2d 331 (1970), originally retained his own attorney who represented him for approximately eleven months through all stages of the proce......
  • State v. Hale
    • United States
    • Kansas Supreme Court
    • January 23, 1971
    ...been prejudiced. (State v. Hill, 145 Kan. 19, 64 P.2d 71; State v. Dickson, 198 Kan. 219, 424 [206 Kan. 523] P.2d 274; State v. Weigand, 204 Kan. 666, 670, 466 P.2d 331.) We note from the record that the offenses with which the defendant was charged occurred the middle part of May 1969; tha......
  • State v. Rodriguez
    • United States
    • Kansas Court of Appeals
    • August 10, 2012
    ...have been. Rodriguez fails to show how the denial of his continuance motion prejudiced him. Rodriguez relies on State v. Weigand, 204 Kan. 666, 671, 466 P.2d 331 (1970), in which the Supreme Court found the district court abused its discretion in refusing to grant a continuance in order for......
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