State v. Williams

• Decision Date: 04 March 1961
• Docket Number: No. 41813,41813
• Citation: 360 P.2d 11,187 Kan. 629
• Parties: STATE of Kansas, Appellee, v. Edward L. WILLIAMS, Appellant.
• Court: Kansas Supreme Court

Page 11

360 P.2d 11

187 Kan. 629

STATE of Kansas, Appellee, v. Edward L. WILLIAMS, Appellant.

No. 41813.

Supreme Court of Kansas.

March 4, 1961.

Syllabus by the Court

In an appeal from a judgment and sentence in a criminal action, wherein the overruling of a motion to discharge the defendant from custody based on the ground the State had failed to bring defendant to trial within the period of time required by G.S.1949, 62-1432 is assigned as error, the record is examined and it is held, that under the facts, conditions and circumstances set forth at length in the opinion and for the reasons therein stated, the motion should have been sustained and the defendant discharged.

W. C. Jones, Olathe, argued the cause, and Howard T. Payne and Howard, E. Payne, Olathe, and Robert P. Anderson and Lyndus A. Henry, Overland Park, were with him on the briefs, for appellant.

Hugh H. Kreamer, County Atty., Olathe, argued the cause, and William M. Ferguson, Atty. Gen., was with him on the briefs, for appellee.

PARKER, Chief Justice.

The defendant, Edward L. Williams, was charged by information, filed in the district court of Johnson County, in Count 1 with the crime of embezzlement (G.S.1949, 21-545) and in Count 2 with the crime of grand larceny (G.S.1949, 21-533), all in connection with his activities in such county while serving as President and Active Manager of the Silver Spur Country Club, Inc. Following divers preliminary proceedings and at the close of a spirited trial the jury found defendant guilty of embezzlement and acquitted him of grand larceny. Later, his motion for a new trial having been denied and sentence imposed against him for the commission of the crime of embezzlement, he perfected the instant appeal, under numerous specifications of error, wherein, among other things, he is entitled to a review of the trial court's action in overruling his motion for discharge based on the premise he had been denied a speedy trial as guaranteed by Section 10 of the Bill of Rights of the Constitution of the State of Kansas and had not been brought to trial within three terms as required by the provisions of G.S.1949, 62-1432.

Since, after a careful and extended review of a lengthy record, this court has determined the ruling on the motion to discharge is the all decisive question involved on appellate review it is neither necessary nor required that we burden our reports with the factual details of the evidence adduced duing the course of the extended trial. Therefore we turn directly to matters material to the disposition of the decisive question to which we have just referred.

In order to proceed to the precise problem presented by the defendant's motion to discharge it is necessary to review briefly the general principles involved. Section 10 of the Bill of Rights of the Constitution of Kansas provides that in all prosecutions the accused shall be allowed a speedy public trial by an impartial jury of the county or district in which the offense is alleged to have been committed. What constitutes a speedy trial is said to be legislatively defined by G.S.1949, 62-1431 and 62-1432. See In re Trull, 133 Kan. 165, 167, 298 P. 775; State v. Hess, 180 Kan. 472, 474, 475, 304, P.2d 474; State v. Goetz, 187 Kan. 117, 353 P.2d 816. In its decisions (See, e. g., State v. Stanley, 179 Kan. 613, 615, 296 P.2d 1088, and State v. Hess, supra.) this court his recognized that the language, meaning and purpose of the cited sections of the statute are so similar there can be no room for differentiating between them in statutory construction.

The particular statute applicable in this case is G.S.1949, 62-1432. It provides 'If any person under indictment or information for any offense, and held to answer on bail, shall not be brought to trial before the end of the third term of the court in which the cause is pending which shall be held after such indictment found or information filed, he shall be entitled to be discharged so far as relates to such offense, unless the delay happen on his application or be occasioned by the want of time to try such cause at such third term.' (Emphasis supplied.)

Many of the problems involved in construing the foregoing statute have been resolved. In State v. Stanley, supra, with direct reference to 62-1431 and 62-1432, we held that in computing the number of terms of court expiring before the trial of a criminal case (1) the term during which the information was filed and (2) the term and/or terms during which the delays in the trial of such a case are necessarily and directly caused by action on the part of the defendant are not to be counted in determining whether such two sections have application.

On the other hand it is clear from the opinion in the Stanley case that terms of court during which the delays in the trial of a criminal case are not necessarily and directly caused by action on the part of the defendant are not to be charged against him in determining whether the foregoing sections of the statute have application under the particular facts involved. Indeed, that has always been the law of this state as recognized, applied and adhered to under all our important decisions dealing with the force and effect to be given the provisions of 62-1431 and 62-1432, when construed in connection with the rights guaranteed defendants in criminal cases under the provisions of Section 10 of the Bill of Rights of our Constitution. For a few of the more important decisions, to which we have referred, setting forth and describing the conditions and circumstances under which the parties in a criminal action, particularly the state, are chargeable with delays resulting in the expiration of terms of court when it is claimed the defendant has not been brought to trial before the end of the third term of court in which the cause is pending see State v. Hess, supra, 180 Kan. 472, 473 to 478, incl., 304 P.2d 474, 478-482; Nicolay v. Kill, 161 Kan. 667, 170 P.2d 823; State v. Coover, 165 Kan. 179, 193 P.2d 209; In re Trull, supra; State v. Dewey, 73 Kan. 739, 88 P. 881, on rehearing; In re McMicken, 39 Kan. 406, 18 P. 473.

Our problem, therefore, is to determine whether or not three terms of court expired in which this defendant could have been tried for the offenses allegedly committed. In other words, did three terms expire between the end of the term in which the information was filed and the term in which the trial was held during which delays in the trial were not necessarily and directly caused by affirmative action on the part of the defendant? In this connection, it is to be noted, this court is committed to the view that a defendant cannot be charged with a particular term of court if it is possible to call a jury and bring him to trial at that term. This, it may be stated, is true even though a motion or other plea has been overruled earlier in the term. State v. Dewey, on rehearing, supra, 73 Kan. 742, 88 P. 882; State v. Coover, supra, 165 Kan. 182, 183, 193 P.2d 212, 213; Nicolay v. Kill, supra, 161 Kan. 670, 170 P.2d 826.

Before turning to the particular factual situation, we note that G.S.1949, 20-1010, provides that the terms of the district court of the tenth judicial district of Johnson County shall commence on the first Monday in January and May, and the first Tuesday of September. In other words, there are three terms of court in Johnson County each year; the January term, the May term and the September term. We note, also, Supreme Court Rule No. 43 (G.S.1949, 60-3827), provides that in judicial districts, or divisions, the judges shall designate at least one day in each calendar month, except July and August, in each county, and division and place where court is held, for the purpose of hearing motions and the transaction of any other court business wherein a jury is not required; and that according to the Kansas Judicial Council Bulletins for December 1957 and 1958, the motion days so designated for divisions of the district court of Johnson County for 1958 and 1959, are the first Monday of each month, except July and August, and the first Tuesday of September. We note further that on March 17, 1958, there were three, and since September 1, 1959, four, divisions of the district court of Johnson County available to prosecuting officials for the purpose of affording defendants in criminal actions the speedy public trial contemplated by Section 10 of our Bill of Rights and the provisions of 62-1431 and 62-1432, supra. Further we note Supreme Court Rule No. 45 allows the parties to have an earlier hearing of a motion upon notice given as provided in the code of civil procedure (G.S.1949, 60-720 to 60-725, incl., C.S.1949, 60-2932.). This relief, we may add, was available to the state at all times during the six terms of court in which this case was pending.

The information in this case was filed March 17, 1958, which was during the January, 1958, term of court. On April 22 defendant filed a motion to quash the information and a plea in abatement. On the same date the state filed an amended information which was during the January, 1958, term. Applying the rule of State v. Stanley, supra, the January, 1958, term of court cannot be counted as one of the three terms during which the defendant must be brought to trial.

The first term after the amended information was filed was the May, 1958, term of court which commenced May 5. On that day the defendant was given leave to refile and did refile his plea in abatement. Because a plea in abatement is directed at occurrences not set out in the information, other pleadings were required. Consequently, a demurrer was filed on May 6 against the plea in abatement. This demurrer was overruled May 16. Thereafter, and on May 19, the state filed an answer to the plea in abatement to which the defendant replied on May 29. This was five days prior to the June 2, 1958, motion day. Notwithstanding the status of the plea in abatement no...