State v. Wyman, 44780

• Citation: 426 P.2d 26,198 Kan. 666
• Decision Date: 08 April 1967
• Docket Number: No. 44780,44780
• Parties: STATE of Kansas, Appellee, v. Raymond WYMAN, Appellant.
• Court: United States State Supreme Court of Kansas

Page 26

426 P.2d 26

198 Kan. 666

STATE of Kansas, Appellee, v. Raymond WYMAN, Appellant.

No. 44780.

Supreme Court of Kansas.

April 8, 1967.

Syllabus by the Court

1. Under the express provisions of K.S.A. 62-504, the time during which a person is absent from the state is to be excluded in computing the period of limitation.

2. Where a defendant has been personally absent from the state, neither concealment of his person nor of the crime itself

is required to toll the statute of limitations.

3. The record is examined and it is held: (1) Allegations of absence were correctly contained in the information, were submitted to the jury under proper instructions and there is sufficient evidence of record to support a finding that the statute of limitations had been tolled, and (2) the defendant's claim that the court erred in not admonishing the jury to disregard remarks made by the prosecuting attorney on final argument is not open to review because (a) the remarks are not contained in the record and (b) the record shows no objection to the remarks when they were made.

A. Price Woodard, Jr., Wichita, argued the cause, and Robert D. Watson and Roscoe D. Austin, Wichita, were with him on the brief, for appellant.

Raymond A. Overpeck, Deputy County Atty., argued the cause, and Robert Londerholm, Atty. Gen., and Darrel G. Mitchel, County Atty., were with him on the brief, for appellee.

FONTRON, Justice.

The defendant, Raymond Wyman, was convicted of burglary and larceny and sentenced to the Kansas State Industrial Reformatory. He has appealed from the judgment.

The question for our determination is whether prosecution was barred by the statute of limitations.

There is no dispute as to any material fact. The offense was committed on the night of December 4, 1963. Thereafter, and on or about June 2, 1964, the defendant entered the United States Navy, where he served until February, 1966. While in service, Wyman was based at naval stations or on naval ships stationed outside the state of Kansas, with the exception of four furloughs of fifteen days each. Nine months of Wyman's service was in the Vietnam theater of operations.

The record is somewhat scanty but we were advised at the time of oral argument that the defendant was returned to Kansas in February, 1966, to stand trial on another offense; that he was acquitted on that charge; and that following such acquittal the present complaint was filed and warrant issued on March 2, 1966, some two years and three months after commission of the offenses for which he was tried and convicted.

Our statute, K.S.A. 62-503, provides that a prosecution for offenses of the character involved in this action must be commenced within two years after they are committed. The state concedes that a prosecution is deemed commenced when a complaint is filed and a warrant thereon is issued. (State v. Woolworth, 148 Kan. 180, 186, 81 P.2d 43; State v. Cashman, 174 Kan. 272, 276, 255 P.2d 660). Inasmuch as twenty-seven months intervened between date of offense and issuance of warrant, it is obvious that the present prosecution would be barred unless the statute was somehow tolled

It is the state's position that the statute has been tolled in this case because of the defendant's absence from the state. The pertinent statute is K.S.A. 62-504, which reads:

'If any person who has committed an offense is absent from the state, or so conceals himself that process cannot be served upon him, or conceals the fact of the crime, the time of absence or concealment is not to be included in computing the period of limitation.'

Certain facts were stipulated between the state and the defendant which clearly disclose that Wyman was absent from the state of Kansas for a sufficient time to toll the statute, unless, as the defendant maintains, absence alone is not sufficient to toll the statute. The defendant argues that absence from the state must be coupled with concealment, either of the person or of the crime, before the running of the statute can be interrupted.

No authority is cited to support the defendant's contention and we have been unable to find any. From the language of the statute, itself, we believe it is manifest that concealment is not required to toll the statute where a person has been absent from the state. The provisions of K.S.A. 62-504 are set forth disjunctively, not conjunctively.

As we read the statute, there are three periods of time which are not to be counted in computing the period of limitation: (1) The time when a person is absent from the state; (2) the time during which a person conceals himself so that he cannot be served with process; and (3) the time when a person conceals the fact of his crime. Such is the view previously taken by this court in State v. Hill, 145 Kan. 19, 64 P.2d 71, and such appears generally to be the prevailing view in jurisdictions having statutes worded like ours. In People v. Snowden, 149 Cal.App.2d 552, 559, 308 P.2d 815, cert. den. 355 U.S. 841, 78 S.Ct. 62, 2 L.Ed.2d 49, the California court said:

'The time a defendant is absent from the state is excluded in determining whether the statute of limitations is a bar to his prosecution. * * *'

(See, also United States v. Hershenson, D.C., 131 F.Supp. 782.)

This court has similarly construed our former civil statute, G.S.1949, 60-309, pertaining to limitation of civil actions. That statute provided that where a person left the state after a cause of action accrued, or absconded or concealed himself, the period of such absence of concealment should not be computed as any part of the period within which an action had to be brought. In Roth v. Holman, 105 Kan. 175, 182 P. 416, we construed the statute and held:

'The statute of limitations is held not to have run on the plaintiff's claim, because of the interruption caused by the personal absence of the defendant from the state, notwithstanding his continued maintenance of a residence here.' (Syl.)

(See, also, Conlon v. Lanphear, 37 Kan. 431, 15 P. 600; Gibson v. Simmons, 77 Kan. 461, 94 P. 1013; Lips v. Egan, 178 Kan. 378, 285 P.2d 767).

Our attention is directed by the defendant to testimony of an alleged accomplice that he informed the county attorney in February, 1965, that Wyman participated in the burglary and was in the United States Navy and that he also told the attorney where Wyman's parents lived. It is suggested that the county attorney's failure to have a complaint filed and a warrant issued until a year after he received that information prevents the statute from being tolled. He cites in support of this contention two Kansas cases: In re Clyne, Petitioner, 52 Kan. 441, 35 P. 23 and State v. Bowman, 106 Kan. 430, 188 P. 242. We think neither case is controlling.

In Clyne it was held that where the sheriff, at the direction of the county attorney, held a warrant for five months beyond the statutory period of limitation without serving the same on the defendant, who was present in the county the entire time, was frequently seen by...