Wilson v. Hudspeth
| Decision Date | 09 October 1948 |
| Docket Number | 37356. |
| Citation | 198 P.2d 165,165 Kan. 666 |
| Parties | WILSON v. HUDSPETH, Warden. |
| Court | Kansas Supreme Court |
Rehearing Denied Oct. 16, 1948.
Syllabus by the Court.
The record in a habeas corpus proceeding is examined and it is held: (1) Petitioner was properly proceeded against by information instead of by grand jury indictment; (2) there was no evidence used against him which had been obtained by unlawful search and seizure; (3) the petitioner was properly and adequately represented by counsel, afforded a fair and impartial trial by jury, and his constitutional rights were not invaded; (4) the journal entry did not comply with the provisions of G.S.1947 Supp. 62-1516, and should be completed in accordance with the procedure outlined in the opinion.
John E Buehler, of Atchison, for petitioner.
Harold R. Fatzer, Asst. Atty. Gen. (Edward F. Arn, Atty. Gen., on the brief), for respondent.
The petitioner was convicted of statutory rape, in the district court of Lyon County, Kansas, on March 14, 1946, after trial by jury. He was originally arrested for commission of a misdemeanor. He now claims that, while being held in the city jail on such charge, an unlawful search was made of his living quarters and evidence obtained which was used in his trial which resulted in his conviction on the charge of statutory rape. He contends that this violated his rights under the constitution of the state of Kansas and the constitution of the United States. It appears from the record that when the officers searched his living quarters they found a 15-year-old girl present who admitted to the officers she had been living with the accused without being married to him. A statement was obtained from her which formed the basis of the charge against the petitioner and her testimony was used to convict him of statutory rape. Needless to say, the claim of the petitioner of violation of his constitutional rights in this respect is without merit.
Another ground of the application is that the petitioner was proceeded against by information rather than by grand jury indictment. This was ruled adversely to petitioner in Bailey v. Hudspeth, 164 Kan. 600, 191 P.2d 894.
The next charge is that the petitioner was denied the right of proper representation by counsel and of a fair and impartial trial by jury. There have been submitted to this court, in addition to the record and the verified application of the petitioner, the affidavits of the district judge who tried the case and of the attorney who represented the defendant. The testimony shows that the information was filed February 25, 1946, charging in count 1, statutory rape, and in count 2, forcible rape. Counsel was appointed by the court on April 26, 1946, and at the request of the petitioner, George Allred was named to represent him. George Allred had been consulting with the petitioner since shortly after February 25, 1946. On May 10, 1946, the second count of forcible rape was dismissed. On May 14th the case was tried by the jury, which, on the same date, returned a verdict of guilty on the only count. Notice of intention to file motion for new trial was given forthwith, the motion was filed, afterwards was argued, and overruled on May 18, 1946. It appears that every consideration was afforded the defendant in that trial. He demanded the right to make his own opening statement, to cross-examine the state's witnesses and to examine his own witnesses. He was afforded these privileges. He did not permit his counsel to try the case for him but, nevertheless, his attorney helped him in every way possible. The defendant was permitted to make an argument to the jury. His attorney likewise made a short argument. We find nothing in the record and the evidence to warrant an inference that the petitioner was not afforded a fair and impartial trial by jury. His interests were safeguarded at every step. All witnesses whom he named were subpoenaed and appeared in court. He complains that the information did not set out the sections of the statute under which he was charged. There is no requirement that such be done.
Another ground of the petition is that there were never any commitment papers on file in the office of the clerk of the district court of Lyon County, Kansas. The records show that a commitment was issued by the clerk. The only instrument the sheriff needed to carry out the judgment and sentence of the court was a certified copy of the journal entry. McKie v State, 74 Kan. 21, 85 P. 827.
The petitioner complains that he was rushed through the trial of the case and sentence passed upon him on the same day by the judge of the district court. There is no provision that the trial of a case must be continued over more than one day. It was not prejudicial error for the court to sentence him on the same day the verdict was rendered. The petitioner's motion for new trial was heard and passed upon four days after sentence. Thus the prisoner and his attorney were afforded sufficient time...
To continue reading
Request your trial
-
State v. Armstrong
...state statute under which defendant's sentence was imposed, as required by 62-1516, subject to correction); and Wilson v. Hudspeth, 165 Kan. 666, 668-69, 198 P.2d 165 (1948), cert. denied 335 U.S. 909, reh. denied 336 U.S. 911, 69 S.Ct. 511, 93 L.Ed. 1075 (1949) (journal entry's failure to ......
-
Bush v. State
...case with directions that the journal entry be corrected in accordance with what was said in Kiser v. State, supra, and Wilson v. Hudspeth, 165 Kan. 666, 198 P.2d 165, cert. den. 335 U.S. 909, 69 S.Ct. 410, 93 L.Ed. 442, rehearing denied 336 U.S. 911, 69 S.Ct. 511, 93 L.Ed. In connection wi......
-
Pyle v. Hudspeth
... ... statute under which sentence was imposed and hence a writ ... should issue. Obviously, this claim is based upon a ... requirement of our present statute. G.S.1947 Supp. 62-1516 ... Even so the judgment would not be void or petitioner entitled ... to a writ. Wilson v. Hudspeth, 165 Kan. 666, 198 ... P.2d 165. However our decision on this point need not be ... based upon the foregoing premise. Petitioner was sentenced on ... June 13, 1935. The statute then in force and effect, ... G.S.1935, 62-1516, contained no such requirement ... Pennebaker v ... ...
-
State v. Andrews
...171 Kan. 320, 322, 232 P.2d 464 (1951); Jamison v. Hudspeth, 168 Kan. 565, 567-568, 213 P.2d 972 (1950); Wilson v. Hudspeth, 165 Kan. 666, 668-669, 198 P.2d 165 (1948). However, the journal entry in this case cannot be so corrected for the event implicitly required by the statute did not in......