199 P.2d 807 | Kan. | 1948
The opinion of the court was delivered by
The above cases grew out of the same controversy and the records are so mingled that they may best be disposed of in one opinion. From the record it appears that about one o’clock on the morning of July 2, 1947, Raymond Bair was drunk on the
We first discuss the habeas corpus case, our No. 37,435. Petitioner alleged that he was the natural guardian and next friend of Raymond Bair, a minor; that the police court of the city of Good-land was acting unlawfully and beyond its jurisdiction as to Raymond Bair, who was unlawfully deprived of his liberty by Arthur Kemp, the police judge, and by Gordon Austin, marshal of the city of Goodland; that on the night of July 1, 1947, Raymond Bair was arrested by the police of Goodland and placed in the city jail; that on the afternoon of July 2 he was brought before the police judge, Arthur Kemp, who told him he should pay $63 into court (this was the amount of the fine and the costs in the two cases); that not knowing the nature of the proceedings, or his rights, he thought the $63 payment was bond for his appearance at the trial, and that immediately after the payment was made, the police judge committed him to jail for sixty days and he was taken to the city jail; that no trial was had; that neither the police judge nor officers of the court informed him that he was on trial or read to him the complaint or warrant; that the warrant was not served upon him and he was not informed of his rights or given an opportunity to consult with counsel. It was further alleged that Raymond Bair was eighteen years old at the time of his arrest; that he was born in Sherman county and had lived there all his life; that he had no education other than the eighth grade in a country school; that he was engaged in farming and was not familiar with police court procedure in the city of Goodland and was not given an opportunity to consult with an attorney or with his parents, and that he did not know that he had been tried and convicted until after he had been committed to jail. There were further allegations about the complaints and that both complaints were for the same offense. It was alleged the imprisonment was illegal for the reason he had never been given a trial on the offense charged; that he was not advised by the officers that he was on trial; that the complaints and warrants charging him with the offenses were not read to him; that he was not advised of the offenses with which he was charged, and not served with the warrants prior to the trial; that in issuing
The writ was served upon the police judge, who filed a return, stating that neither at the time of the issuance of the writ nor at the time of the return did he have Raymond Bair in his custody, and therefore he could not bring his body before the court. The writ was also served upon Gordon Austin, chief of police, who filed a return that on April 24, 1948, the police court issued a commitment in case No. 45 to commit Raymond Bair to the city jail in Goodland; that Raymond Bair was taken into custody and was now detained by virtue of such commitment, a copy of which was attached, and that under the writ he brought the body of Raymond Bair before the court. It further alleged that neither at the time of the allowance of the writ nor at any time since was Raymond Bair in his custody under case No. 46 in the police court.
At the trial Raymond Bair gave testimony tending to support the allegations in the petition for the writ. Upon cross-examination he testified that on an occasion prior to July, 1947, he had been arrested by the same officers for being drunk in the city of Goodland, was taken before the same police judge and entered a plea of guilty; that his father was there and paid his fine; that he was sentenced to a term in the city jail; that while an inmate of the city jail he had attempted to tear it up; that he had broken a window and broken some of the plumbing, and that his father came in and paid the city for the damage to the jail. On behalf of respondents, the police judge, the chief of police and Bob Gordanier, who assisted in making the arrest, testified. Dale Rummel, who assisted in making the arrest, had moved to Missouri and was not available as a wit-
In denying the writ and remanding Raymond Bair to the custody of the city marshal under the commitment which had been issued the court reviewed the evidence and said:
“This young man had been in jail before. He had been intoxicated before. He knows his way around. His evidence shows he knew what he was being charged with. The court doesn’t believe his testimony in reference to the fact that he believed he was putting up bond. The court doesn’t believe his -testimony when he testified he wasn’t advised that he was entitled to have counsel, if he wanted it, or that he wasn’t entitled to have his folks come in. ... I don’t think this young man told the truth. ... He has been a kind of a 'problem child.’ He has been married twice. He is not just a young tender youth. ... I think from the evidence I have heard in this case this boy has not been a good boy. He has been a bad boy; and he isn’t entitled to any more consideration than any other boy, or bad boy in the community, and he should be punished. I don’t think he has been unreasonably punished. I believe every word that has been testified here, as far as the officers are concerned. I don’t think any advantage has been taken of him whatsoever.”
In view of this record and the judgment and finding of the court it is clear that the court did not err in denying the writ of habeas corpus.
Our decisions are in harmony with the weight of authority. See 17 C. J. 48; 24 C. J. S. 267; 2 Am. Jur. 987, and annotation in 18 A. L. R. 867 and 74 A. L. R. 638.
From what has been said the judgment of the trial court in each case should be affirmed. It is so ordered.