Wheeler v. State
| Decision Date | 09 November 1968 |
| Docket Number | No. 45291,45291 |
| Citation | 446 P.2d 777,202 Kan. 134 |
| Parties | Jack Daniel WHEELER, Appellant, v. The STATE of Kansas, Appellee. |
| Court | Kansas Supreme Court |
1. One who has no interest in premises, either of a proprietary or possessory characher, has no standing to invoke the constitutional guaranty of immunity from unreasonable search and seizure.
2. Undue delay in bringing one accused of crime before a magistrate is not, of itself, a denial of due process. It is only where a preliminary delay in some way deprives an accused of a fair trial that there can be a denial of due process.
3. The failure to provide an accused with counsel at this preliminary examination does not constitute reversible error in the absence of a showing that the substantial rights of the accused were prejudiced thereby.
4. The record of trial is examined in a proceeding pursuant to K.S.A. 60-1507 and it is held, under the facts set forth in the opinion, the trial court did not err in overruling the motion to vacate appellant's sentence.
Larry D. Nuss, Fort Scott, for appellant.
Charles M Warren, County Atty., and Robert C. Londerholm, Atty. Gen., on the brief, for appellee.
HARMAN, Commissioner:
Appellant, under sentence for the offense of felonious assault, seeks in this postconviction proceeding to overturn an adverse judgment rendered after full evidentiary hearing.
John Peter Knouf was wounded by shotgun pellets on February 3, 1964, in Bourbon county, Kansas. On the same day appellant was arrested and incarcerated in the Bourbon county jail. Nine days later he was formally charged with assault with a deadly weapon with intent to kill Knouf. Eventually, and while represented by retained counsel, he waived jury trial, was tried by the court, found guilty and given the sentence which is the subject of this attack.
Appellant's first complaint stems from a search and seizure of the shotgun allegedly used by him, admitted, without objection as evidence against him at trial. He asserts the search and seizure was violative of his constitutional rights.
The facts appear to be as follows: At some time following appellant's arrest, police officers were led by a youth named Garrison to a shed or garage located on premises owned by a Mrs. Blanche Lesher and there they seized the shotgun. No one was on the property at the time. The officers did not have a search warrant nor did they have authorization or permission from Mrs. Lesher to make the search.
Appellant's assertion of constitutional invasion is based on his testimony in the post-conviction hearing that Blanche Lesher was his common law wife. He says he therefore had such proprietary interest in the property searched as to enable him to raise the constitutional question. He argues his testimony as to the common law marital relation was uncontroverted in any way and therefore must be accepted as true.
Dealing first with this approach and passing our rule that the movant in a post-conviction proceeding has the burden of establishing his grounds for relief by a preponderance of the evidence and that the uncorroborated statements of the movant shall be insufficient to sustain the burden of proof (Rule No. 121(g), 197 Kan. LXXV), and the fact that appellant's testimony of common law marriage was wholly uncorroborated, we cannot agree with appellant's contention that his testimony was uncontroverted. The trial court had before it the testimony of several witnesses describing the premises as belonging to Mrs. Lesher-not Mrs. Wheeler. These witnesses included not only the officers but also the informant who allegedly was with appellant at the time appellant disposed of the gun. More importantly, Mrs. Lesher testified at the postconviction hearing. She did not identify herself as being at any time the wife of appellant. To the countrary, throughout the entire proceeding she was referred to and identified by all witnesses, including herself, as Mrs. Lesher. Thus, treating the issue of appellant's marital status as one of fact, as must be done, there was ample evidence to sustain the trial court's finding that the premises searched were the property of Mrs. Blanche Lesher and that appellant had no interest therein. The finding completely negatived appellant's claim to marital ties.
It is elemental that one who has no interest in premises, either of a proprietary or possessory character, has no standing to invoke the constitutional guaranty of immunity from unreasonable search and seizure (State v. Edwards, 197 Kan. 146, 415 P.2d 231).
Marital status being the sole basis of appellant's assertion of constitutional privilege, once...
To continue reading
Request your trial
-
State v. Addington
...a subsequent conviction (Baier v. State, 197 Kan. 602, 419 P.2d 865; State v. Dobney, 199 Kan. 449, 429 P.2d 928; Wheeler v. State, 202 Kan. 134, 446 P.2d 777; Moreland v. United States, 347 F.2d 376 (10 Cir.1965); Davis v. United States, 416 F.2d 960 (10 Cir.1969); United States ex rel. Al......
-
State v. Gordon, 48339
...to have had a possessory or proprietary interest in the premises searched. (State v. Edwards, 197 Kan. 146, 415 P.2d 231; Wheeler v. State, 202 Kan. 134, 446 P.2d 777; State v. Grimmett & Smith, 208 Kan. 324, 491 P.2d 549; State v. Williamson, 210 Kan. 501, 502 P.2d 777; State v. Masqua, 21......
-
State v. Masqua
...invoke the constitutional guaranty from unreasonable searches and seizures. (State v. Edwards, 197 Kan. 146, 415 P.2d 231; Wheeler v. State, 202 Kan. 134, 446 P.2d 777; State v. Grimmett & Smith, 208 Kan. 324, 491 P.2d 549.) Moreover, the record clearly shows the law enforcement officers so......
-
State v. Gilbert
...immunity from unreasonable search and seizure”); State v. Grimmett & Smith, 208 Kan. 324, Syl. ¶ 1, 491 P.2d 549 (1971) (same); Wheeler v. State, 202 Kan. 134, Syl. ¶ 1, 446 P.2d 777 (1968) (same). And this court applies the same test in automobile cases. State v. Epperson, 237 Kan. 707, Sy......