Stebens v. Hand

• Decision Date: 25 January 1958
• Docket Number: No. 40727,40727
• Citation: 320 P.2d 790,182 Kan. 304
• Parties: Wilmer Lee STEBENS, Petitioner, v. Tracy HAND, Warden of the Kansas State Penitentiary, Respondent.
• Court: Kansas Supreme Court

Page 790

320 P.2d 790

182 Kan. 304

Wilmer Lee STEBENS, Petitioner, v. Tracy HAND, Warden of the Kansas State Penitentiary, Respondent.

No. 40727.

Supreme Court of Kansas.

Jan. 25, 1958.

Syllabus by the Court

1. The record in an original proceeding in habeas corpus is examined and it is held that petitioner has established no ground to justify the issuance of a writ.

2. The jurisdiction of a district court to try a person for a criminal offense does not depend upon how he came to be in this State.

3. A fugitive from justice who has been surrendered by one State of the Union to another State, upon requisition charging him with the commission of a specific crime, has under the Constitution and the laws of the United States no right, privilege or immunity to be exempt from indictment (or charge on information) and trial, in the State to which he is returned, for any other or different offense from that designated in the requisition, without first having an opportunity to return to the State from which he was surrendered.

4. The coroner is under no duty to conduct an inquest upon the dead body of a person, who is supposed to have died by unlawful means, where the cause of such person's death is known, construing G.S.1949, 19-1003.

5. A habeas corpus proceeding is not a substitute for an appeal and errors made in the trial court, which are subject to review on appeal to this court, cannot be corrected or reviewed upon a petition for such a writ.

6. In a habeas corpus proceeding a petition cannot successfully contradict the record by unsupported and uncorroborated statements.

Wilmer Lee Stebens, petitioner, was on the brief pro se.

Charles N. Henson, Jr., Asst. Atty. Gen., argued the cause, and John Anderson, Jr., Atty. Gen., was with him on the brief for respondent.

SCHROEDER, Justice.

This is an original proceeding in habeas corpus in which petitioner seeks his release from confinement in the State Penitentiary.

On September 20, 1949, the County Attorney of Finney County, Kansas, filed an information in the district court of Finney County charging that the petitioner inflicted certain mortal wounds upon one John Walter Mooney with his fists and a blunt instrument, the exact nature of which is alleged to have been unknown to the complainant, while perpetrating or attempting to perpetrate a robbery, which acts amounted to first degree murder. On the 27th day of September, 1949, the petitioner was brought to trial on this information. He was represented by Don Shaffer, an attorney of his own selection.

Formal arraignment was waived and a plea of not guilty to the information was entered. The case was tried to a jury of twelve men, which on the 29th day of September, 1949, returned a verdict finding the petitioner guilty of murder in the first degree. The jury fixed a penalty at confinement in the Kansas State Penitentiary at hard labor for life. A motion for a new trial was filed within the time granted by the court on October 4, 1949, and was overruled after hearing on the 14th day of October, 1949. On that date the court sentenced petitioner to confinement in the Kansas State Penitentiary at hard labor for life pursuant to G.S.1949, 21-403. Subsequent thereto petitioner was delivered into the custody of the warden at the State Penitentiary, and at this date he remains confined in that institution in the custody of the respondent.

The grounds upon which petitioner seeks his release are that--(1) He was denied due process of law by being illegally brought into the State of Kansas without extradition for the purpose of standing trial; (2) No coroner's inquest was conducted to determine the cause of the death for which petitioner was found criminally responsible; and (3) He was in fact tried by a jury of ten men.

With respect to the first ground mentioned, the petitioner contends that he was illegally brought into Kansas from the State of Colorado. He says that the statutory procedure for extradition was not followed; that there is no record of extradition in the office of the Secretary of State; and that petitioner was not informed of his rights under the law prior to waiver of extradition. He charges that agents of the two states entered into a conspiracy to remove him from Colorado by denying to him rights secured by law. He contends that his rights were further violated because the charge against him was 'elevated' to one of first degree murder in the district court of Finney County, Kansas.

At best, petitioner's contention amounts to a charge that he was brought into the State of Kansas from Colorado by fraud and deceit. This court has held that the jurisdiction of a district court to try a person on a charge of having committed a public offense does not depend upon how he came to be in this state. Foster v. Hudspeth, 170 Kan. 338, 224 P.2d 987; State v. Wellman, 102 Kan. 503, 170 P. 1052, L.R.A.1918D, 949, Ann.Cas.1918D, 1006.

There is nothing in the Constitution or laws of the United States which exempts an offender, brought before the courts of a State for an offense against its laws, from trial and punishment, even though brought from another State into the jurisdiction by unlawful violence, or by abuse of legal process. Ker v. People of State of Illinois, 1886, 119 U.S. 436, 7 S.Ct. 225, 30 L.Ed. 421 and Mahon v. Justice, 127 U.S. 700, 8 S.Ct. 1204, 32 L.Ed. 283.

In Pettibone v. Nichols, 203 U.S. 192, 27 S.Ct. 111, 51 L.Ed. 148, 7 Ann.Cas. 1047, the petitioner seeking a writ of habeas corpus charged fraud and connivance between two states in securing his arrest and deportation to a state in which he was charged with a crime, similar to the contention in the instant case. The United States Supreme Court there reviewed the Ker and Mahon cases quite extensively and held that even if the arrest and deportation of one alleged to be a fugitive from justice may have been effected by fraud and connivance arranged between the executive authorities of the demanding and surrendering states so as to deprive him of any opportunity to apply before deportation to a court in the surrendering state for his discharge, and even if on such application to any court, state or federal, he would have been discharged, he cannot so far as the Constitution or the laws of the United States are concerned--when actually in the demanding state, in the custody of its authorities for trial, and subject to the jurisdiction thereof--be discharged on habeas corpus by the federal court. Ex parte Brown, D.C.1886, 28 F. 653.

It was held in Cook v. Hart, 146 U.S. 183, 192, 13 S.Ct. 40, 36 L.Ed. 934, that the cases of Ker v. People of State of Illinois, supra, and Mahon v. Justice, supra, established these propositions:

'* * * (1) That this court will not interfere to relieve persons who have been arrested and taken by violence from the territory of one state to that of another, where they are held under process legally issued from the courts of the latter state; (2) That the question of the applicability of this doctrine to a particular case is an much within the province of a state court, as a question of common law or of the law of nations, as it is of the courts of the United State.' [146 U.S. 192, 13 S.Ct. 43.]

Assuming that the petitioner was arrested in the State of Colorado on a warrant charging an offense other than murder in the first degree, thereby giving him the benefit of any doubt, he is still not entitled to the relief for which he prays. This was the proposition presented to the United States Supreme Court in Lascelles v. State of Georgia, 148 U.S. 537, 13 S.Ct. 687, 37 L.Ed. 549, where it was held that a fugitive from justice who has been surrendered by one State of the Union to another State, upon requisition charging him with the commission of a specific crime, has under the Constitution and laws of the United States no right, privilege or immunity to be exempt from indictment and trial, in the State to which he is returned, for any other or different offense from that designated in the requisition, without first having an opportunity to return to the State from which he was extradited.

In State v. Wellman, supra, after the decision of Lascelles v. State of Georgia, supra, this court used language to which it...