Uhock v. Hand
| Decision Date | 28 January 1958 |
| Docket Number | No. 40789,40789 |
| Citation | 182 Kan. 419,320 P.2d 794 |
| Parties | Stanley UHOCK, Petitioner, v. Tracy HAND, Warden of the Kansas State Penitentiary, Respondent. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. In a proceeding in habeas corpus the petitioner, an inmate of the State Penitentiary serving under a life sentence for murder in the first degree, challenged the proceedings had prior to arraignment on the grounds that (a) he was not served with a warrant; (b) the transcript disclosing the magistrate's findings on the preliminary hearing was irregular; and (c) no coroner's inquest was conducted to determine the cause of the death for which the petitioner was found criminally responsible. The record is examined, and held, under the facts and circumstances more fully disclosed in the opinion, that the alleged errors and irregularities were not jurisdictional to the rendition of a final judgment and the writ is denied.
2. A proceeding in habeas corpus is not to be regarded as a substitute for appellate review.
3. Habeas corpus cannot be used to review nonjurisdictional errors and irregularities leading up to judgment.
4. A petitioner in habeas corpus is not entitled to discharge, on a challenge to the regularity of the proceedings in a criminal action which resulted in his conviction and sentence, unless the irregularities complained of were of such a character as to render the proceedings void.
5. Where no coroner's inquest is conducted and the cause of death for which the petitioner was found criminally responsible was unknown, the duty of a coroner under the provisions of G.S.1949 19-1003, is not jurisdictional to the rendition of a final judgment in a murder case.
6. In a habeas corpus proceeding a petition cannot successfully contradict the record by unsupported and uncorroborated statements.
Stanley Uhock, 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.
This is an original proceeding in habeas corpus in which petitioner after a final judgment seeks his release from confinement in the State Penitentiary.
The grounds upon which petitioner seeks his release are that--(1) He was charged with first degree murder and no warrant was ever served upon him; (2) The magistrate who conducted the preliminary hearing failed to make a finding of probable cause that petitioner committed the crime; and (3) No coroner's inquest was conducted to determine the cause of the death for which petitioner was found criminally responsible.
On the 8th day of November, 1952, the county attorney of Finney County, Kansas, filed an information in the district court of Finney County against the petitioner and another person, charging that on the 31st day of October, 1952, they inflicted mortal wounds upon one John Gossman with their fists and with a blunt instrument, to-wit: 'a large glass beer mug or other blunt instrument, the exact nature and description of which is to the complainant unknown', while perpetrating or attempting to perpetrate a robbery, which acts amounted to first degree murder (the information alleged among other things that John Gossman then and there died from such mortal wounds).
The following pertinent facts are taken from the journal entry:
On the 8th day of November, 1952, an adjourned day of the September term, two competent attorneys were appointed by the court to represent the petitioner, and they represented him as counsel throughout the proceedings. The next day, November 9, 1952, a plea in abatement was filed which was heard May 7, 1953. The State denied all allegations of the plea, and, after hearing, the plea in abatement was denied.
On the 11th day of May, 1953, the same being the opening day of the regular May, 1953, term of the district court of Finney County, the defendant, Stanley Uhock, at the calling of the docket announced that he was ready for trial, but the State moved for a continuance over the May term. The court found that the continuance should be granted for cause and ordered the case continued over the term.
On the 26th day of September, 1953, a motion for discharge filed by the petitioner was heard and denied for the following reasons:
On the 5th day of October, 1953, the petitioner in open court waived formal arraignment and entered a plea of not guilty to the charge of first degree murder and was granted a separate trial. The journal entry discloses that the parties thereupon announced that they were ready for trial, whereupon a jury of twelve was duly and lawfully selected and the case proceeded to trial. On the 8th day of October, 1953, this trial resulted in a declaration by the jury that it was hopelessly divided, and upon the petitioner consenting to the discharge of the jury, the court discharged the jury and set the case for retrial on the 20th day of October, 1953, when the petitioner in the same term again appeared before the court and waived formal arraignment and entered a plea of not guilty. The parties again announced themselves ready for trial and a jury of twelve was duly selected, impaneled and sworn to try the case. On the 22nd day of October, 1953, this trial resuulted in a verdict of guilty of murder in the first degree. The jury fixed the penalty as confinement and hard labor in the Penitentiary of the State of Kansas, for life.
A motion for a new trial was filed within the time granted by the court on the 26th day of October, 1953, and was overruled after hearing on the 28th day of October, 1953. On that 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.
Petitioner contends that he was placed under arrest for drunken and disorderly conduct and shortly thereafter was interrogated on suspicion of murder. He states that being in a state of intoxication and not being fully aware of the serious nature of the crime concerning which he was questioned, he could not give sensible or coherent answers. He states that while in custody at this time he was charged with murder in the first degree and that no warrant has evern been served upon him.
The second irregularity of which petitioner complains is similar in nature, and may be answered with the first. Petitioner's complaint stems from the trnascript certified to the district court by the county court where the preliminary hearing was conducted. He contends that language in the transcript does not disclose that the judge of the county court found probable cause to believe that petitioner committed the crime. Petitioner adds that he did not waive a preliminary hearing.
On the 7th day of May, 1953, pursuant to a hearing in the district court of Finney County on a plea in abatement filed by the petitioner therein, the following is recited in the journal entry of said court:
'Thereupon, the cause is presented to the court and testimony of M. C. Schrader, Judge of the Finney County Court, is received by the Court, and the Court, after being fully advised in the premises, finds that the Plea in Abatement filed herein should be denied and that the transcript of the Finney County Court should be amended to speak the truth of the findings of the said Court at the preliminary hearing heard herein, which true findings are as follows:
"That the crime of First Degree Murder has been committed and there is probable cause to believe that the defendant, Stanley Uhock, committed same'.'
This question was properly raised by counsel for the petitioner in the district court by a plea in abatement. State v. Finley, 6 Kan. 366; State v. Saindon, 117 Kan. 122, 230 P. 301, and State v. Wallgren, 144 Kan. 10, 58 P.2d 74. The foregoing recital confirms that a preliminary hearing was conducted in the county court of Finney County and clearly indicates the ruling and disposition made of the plea in abatement prior to the arraignment of the petitioner.
Under the heading of 'Habeas Corpus' G.S.1949, 60-2213, provides in part:
'No court or judge shall inquire into the legality of any judgment or process whereby the party is in custody, or discharge him when the term of commitment has not expired, in either of the cases following:
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In James v. Amrine, 157 Kan. 397, at page 399, 140 P.2d 362, at page 364, this court said ...
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