State v. Woolworth

• Decision Date: 09 July 1938
• Docket Number: 33649.
• Citation: 81 P.2d 43,148 Kan. 180
• Parties: STATE v. WOOLWORTH. [*]
• Court: Kansas Supreme Court

81 P.2d 43

148 Kan. 180

STATE v. WOOLWORTH. ^[*]

No. 33649.

Supreme Court of Kansas

July 9, 1938

Syllabus by the Court.

In an information charging a criminal offense in two counts allegations of matter intended to toll statute of limitations may be pleaded in separate paragraph from either of the charging counts and is not required to be pleaded as a part of each count. Gen. St.1935, 62-503, 62-505.

A prosecution is deemed "commenced," within statute requiring that prosecution must be "commenced" within two years after the commission of the offense, when a complaint has been filed and a warrant issued. Gen.St.1935 62-503.

The statute providing that where any indictment or information shall be quashed, set aside, or judgment reversed, the time during which the indictment or information was pending shall not be computed as part of the time of the limitation prescribed for the offense, applies to the entry of an order of dismissal. Gen.St.1935, 62-505.

The statute providing that where any indictment or information shall be quashed, set aside, or judgment reversed, the time during which the indictment or information was pending shall not be computed as part of the time of the limitation prescribed for the offense, applies to complaints as well as "informations" and "indictments," since in criminal law generally the words "indictment," "information," and "complaint" are used interchangeably. Gen.St.1935, 62-505.

A prosecution on a complaint filed January 28, 1937, charging defendant with robbery of a bank on March 1, 1933, was not barred by two-year period of limitations where complaint on which warrant was issued was filed March 6, 1933, and remained pending until it was dismissed after a new complaint on which a warrant was issued was filed February 16, 1935 whereafter an information was filed September 30, 1935, and prosecution thereon was dismissed March 16, 1936. Gen.St.1935, 62-503, 62-505.

An information is not required to contain allegations to toll statute of limitations where entire record shows that prosecution was commenced within period prescribed by statute. Gen.St.1935, 62-503.

Where a complaint charging defendant with bank robbery was filed within statutory period of limitations and warrant was issued thereon in good faith, the fact that the warrant was not served on the defendant within two-year period of limitations did not prevent the filing of the complaint and the issuing of the warrant from tolling the statute where the warrant was not served on the defendant because he secreted himself or was out of the state and could not be found. Gen.St.1935 62-503, 62-505.

In bank robbery prosecution wherein defense was an alibi, instruction on alibi evidence that alibi is easy to prove and hard to disprove and testimony offered to prove such defense should be subjected, like all other evidence in case, to rigid scrutiny for reason that witnesses, even when truthful, may be honestly mistaken of, or forgetful of, times and places, was not erroneous as placing burden of proof on defendant or as comment on the evidence.

In bank robbery prosecution, instruction, given jury after it had been deliberating a few hours and had informed trial court in writing that it had taken nine ballots and failed to agree on verdict, that prosecution was important to the state and defendant and that jury should agree on verdict, if possible, was not erroneous as coercive, especially in view of statement in instruction that court had no desire to coerce will or judgment of any juror.

1. Where an information charges a criminal offense in two counts, matter intended to toll the statute of limitations may be pleaded in a separate paragraph from either count and does not have to be pleaded as a part of each count.

2. Where the entire record in a criminal case shows that a prosecution was commenced within the time provided for in G.S.1935, 62-503, it is not necessary for the information to contain allegations to toll the statute.

3. A prosecution is deemed commenced so as to toll the statute of limitations when a complaint has been sworn to and a warrant issued in good faith. The fact that the warrant was not served on defendant where he secreted himself or was out of the state does not prevent the filing of the complaint and the issuing of the warrant from tolling the statute.

4. The pendency of a complaint, as well as the pendency of an indictment or information, meets the provisions of G.S.1935, 62-505, so as to toll the statute of limitations.

5. In a prosecution for a criminal offense where the defense was an alibi, the instruction given the jury on alibi evidence is examined and held to state the law correctly.

6. In a prosecution for a criminal offense, an instruction given the jury after the jury had reported that it was having trouble in reaching an agreement is examined and held not to be coercive.

Appeal from District Court, Lyon County; Joe Rolston, Jr., Judge.

Allen Woolworth was convicted of bank robbery, and he appeals.

Glenn Porter, Getto McDonald, Dwight S. Wallace, and William Tinker, all of Wichita, for appellant.

C. V. Beck, Atty. Gen., O. R. Stites, Sp. Asst. Atty. Gen., and Jay Sullivan, Co. Atty., of Emporia, for the State.

SMITH Justice.

Defendant was convicted of bank robbery. He appeals.

The first point raised by defendant is that the prosecution was barred by the statute of limitations. On this account various procedural steps in the prosecution had prior to the filing of the information on which the trial was had will be noted at the outset.

The bank was robbed on March 1, 1933. A complaint was filed on March 6, 1933, charging defendant with bank robbery. A warrant was issued on this complaint. It was never served. As far as this record disclosed this warrant was lost or misplaced. On February 6, 1935, defendant was arrested within the jurisdiction of the court on an alias warrant. On February 16, 1935, a new complaint was filed against defendant charging the same offense. A warrant was issued on this complaint and served on defendant. On the filing and issuance of this complaint and warrant the prosecution begun on March 6, 1933, was abandoned. On February 18, 1935, a preliminary examination was held and defendant was bound over to the district court for trial. On March 12, 1935, defendant was extradited to Nebraska to answer to a charge of bank robbery. This extradition was over the objection of defendant. On September 30, 1935, an information was filed charging defendant with bank robbery. On March 16, 1936, this prosecution was dismissed by the county attorney for lack of evidence. On January 7, 1937, defendant was arrested in California on what purported to be the complaint and warrant filed and issued on March 6, 1933. He was extradited and brought back to Kansas. The basis of this extradition proceedings was the complaint and warrant of March 6, 1933. It should be stated here parenthetically that the question of the regularity of this extradition proceedings is not before us on this appeal. On January 28, 1937, a new complaint was filed charging defendant with bank robbery. A warrant was issued on this complaint. A preliminary examination was given defendant and he was bound over for trial. On March 1, 1937, an information was filed. Count one of this information alleged that defendant and others named entered the bank with the intent to rob it. Count two alleged that the same persons at the same time and place entered the bank with the intent to rob it and during the perpetration of the robbery made an assault on an officer of the bank. All this was alleged in the first paragraph of the count. The next paragraph of the count contained allegations about the commencement of the prosecution on March 6, 1933; that it had remained pending at all times; that on February 16, 1935, a second prosecution was begun against defendant for the same offense, and that on September 30, 1935, an information was filed; and that this prosecution remained pending at all times until March 16, 1936, when it was dismissed on motion of the county attorney for lack of evidence.

Defendant filed a motion to quash this information for the reason that it showed on its face that it was barred by the statute of limitations; that it showed on its face that it was in violation of section 10 of the bill of rights of the state constitution; that it showed on its face that it was in violation of the 6th amendment to the constitution of the United States, U.S. C.A. Const. amend. 6; that it showed on its face that it was not filed within the time provided by G.S.1935, 62-505; that it showed on its face that it was in violation of G.S.1935, 62-1431 and 62-1432, and for the further reason that the state by surrendering defendant to Nebraska on March 16, 1935, while defendant was in custody charged with the same offense lost jurisdiction to try defendant on this charge. Defendant also filed a plea in abatement on the grounds that he had never had a preliminary examination upon the charge set forth in the first and second counts of the information; that he had not waived his right to a preliminary examination and that defendant was not a fugitive from justice at the time the information was filed.

The trial court conducted a hearing on these two motions and made findings of fact as to the procedural steps substantially as they have been set out in this opinion. In addition, the court found that the statute commenced to run the next day after the bank was robbed and ran until March 6, 1933, when the first complaint was filed, and warrant issued, when the running of the statute stopped, and was held in abeyance until March 12, 1935, when defendant was surrendered to Nebraska, and that on that day the statute...