State v. Carte , 157 Kan. 139 ( 1943 )

The opinion of the court was delivered by

Hoch, J.:

We are asked to determine whether, under the facts presently to be stated, a trial court, after sentencing a defendant on three separate cpunts in an information had the power, during the term at which the sentence was imposed and after the defendant had begun serving the sentence, to reduce the sentence by setting aside and vacating the sentences as to the second and third counts. The appeal is by the state from the attempted exercise of such power.

On October 11, 1942, a car driven by the appellee, Mrs. Carte, struck another car at a highway intersection about five miles north of Wichita, Kan., three persons in the other* car being instantly killed by the collision. Information was issued by the county attorney charging her on three counts with manslaughter- in the fourth degree, under G. S. 1935, 21-420, which reads as follows:

“Eveiy other killing of a human being, by the act, procurement or culpable negligence of another, which would be manslaughter at the common law, and which is not excusable or justifiable, or is not declared in this article to be manslaughter in some other degree, shall be deemed manslaughter in the fourth degree.”

The .three deaths constituted the basis for charging the defendant on three counts — each of the three deceased persons being named in a separate count. In all other particulars the three counts were identical.

The case came on for trial on January 27, 1943, and a jury was impaneled. After the state had introduced some evidence the defendant entered a plea of guilty on each of the three counts and was thereafter sentenced on each of the three counts to the State Industrial Farm for Women, at Lansing, Kan., “to be there confined according to law,” the three sentences to run consecutively. The penalty in this state for manslaughter in the fourth degree is “confinement and hard labor for a term not exceeding two years, or by imprisonment in the county jail not less than six months” (G. S. 1935, 21-423).

Following the pleas of guilty counsel for the defendant argued to the trial court that only one offense had been committed by the defendant; that plea of guilty on the first count barred prosecution on the second and third counts, being second jeopardy for the same offense, and that such second and third pleas were wrongful because she had been wrongfully charged on such counts. The trial court did not agree with the defendant’s, contention and commitment was regularly issued by the clerk the same day, January 27, directing the sheriff to take the prisoner to Lansing. There was no formal motion to withdraw the pleas on the second and third counts, no motion for a new trial, and as far as we are advised, no notice of appeal to this court from the sentences on the second and third counts. On the next day, January 28, the sheriff was directed by the court to proceed with the prisoner to Lansing and apparently he complied at once. However, four days later, on February 1, the court reopened the case upon its own motion and the following journal entry shows what then transpired:

“Now on this 1st day of February, a. d. 1943, the above-entitled matter comes on for hearing upon the request of the Court before whom this case was tried, the Hon. Lloyd Kagey, deputy county attorney, appearing on behalf of the State, and Hon. Clarence R. Sowers appearing on behalf of the defendant.

“The Court, being fully advised in the premises finds that an erroneous sentence has been imposed and that the said defendant should be brought back within the jurisdiction of this court for proper sentence.

“It is therefore by the Court, ordered, adjudged and decreed, that the sheriff of Sedgwick county, Kansas, bring the defendant, Mrs. Cecil Carte, otherwise known as Katherine Carte, from the Kansas State Industrial Farm for Women at Lansing, Kansas, to Sedgwick county, Kansas, and confine said defendant in the county jail of said county, until such time as the Court may enter a proper sentence. ' Robt. L. NeSmith, Judge.

O. K. L. M. Kagey, Attorney for State.

O. K. Clarence Sowers, Attorney for Defendant.”

The prisoner was brought back from Lansing and the matter again came on for hearing on February 10. Pertinent excerpts from the record then made are as follows:

“The Court: On the 27th day of January, 1943, you entered a plea of guilty to the first count as charged in the information and you were sentenced to the Kansas State Industrial Farm for Women at Lansing, Kansas, to there be confined as provided by law, that sentence will remain. The sentence the court imposed upon your plea of guilty to the second count will be set aside. Do you wish to withdraw your plea to that count? (Tr. 1.)

Mr. Sowers: Yes, sir.

The Court: Very well. The defendant may withdraw her plea to the second count of the information. The court will also set aside the sentence upon your plea of guilty to the third count of the information. Does the defendant desire to withdraw her plea to the third count?

Mr. Sowers: Yes, sir, she does.

The Court: She may do so. And the statement of the court that the sentence on the three counts will run consecutively will be stricken from the record. That will be all.

Mr. Warnick: The Court please. Comes now the state of Kansas and ■objects to the ruling of the court as it relates to the changing of the journal ■entry of judgment and the judgment of the court at this time and objects to the ruling of the court with reference to the judgment hereinbefore imposed in this case.

The Court: Do you wish to reserve the question?

Mr. Warnick: When the court rules on that objection. (Tr. 2.)

The Court: The objection will be overruled.

Mr. Warnick: We would like to reserve the question; and if the defendant, Mrs. Cecil Carte, withdraws her plea to the second and third counts, her plea of guilty, the state requests that she be held here in this county for trial on the second and third counts.

The Court: It will be overruled as to all of your request, except the reservation of the question.

Mr. Warnick: The state desires to reserve the question on the last ruling.

The Court: You may do so. (Tr. 3.)”

The journal entry conformed to the above proceedings. Thereafter and on the same day, February 10, a new commitment was issued and the prisoner was returned to Lansing. This appeal by the state followed.

The state’s three specifications of error may be summarized as follows:

1. The court erred in ordering the defendant returned from Lansing after she had been committed following pleas of guilty.

2. The court erred in setting aside the original judgment and sentence as to the second and third counts and permitting the defendant to withdraw her pleas as to such counts.

3. The court erred in overruling the state’s motion that the defendant be retained in jail for trial on the second and third counts, after the pleas on those counts had been withdrawn.

In the first place we find nothing in the statutes which authorizes a trial court to order the return of a prisoner after he has begun serving his sentence in the penitentiary. When a sentence has been pronounced it becomes the duty of the clerk to deliver forthwith to the sheriff a certified copy of the sentence, and the duty of the sheriff to take the prisoner, without delay, to begin serving the sentence.. (G. S. 1935, 62-1518.) This was done by both clerk and sheriff. The state contends, and with force, that the subsequent action taken by the court amounted to the granting of a new trial, although no such motion had been made. Attention is called by the state to G. S'. 1935, 62-1604, which provides that “the application for a new trial must be made before judgment," and to G. S. 1935, 62-1414, which provides that verdicts may be set aside, new trials or continuances granted “to either party in criminal cases for like causes and under the like circumstances as in civil cases.”

We pass to the primary question of whether, in a criminal action, a trial court has power within the term to set aside or modify the sentence and to impose a new sentence, after the first sentence has been partly served. This question was before us in the recent case of Parks v. Amrine, 154 Kan. 168, 117 P. 2d, 586. Briefly, the facts in the Parks case were that the defendant pleaded guilty to forgery in the second degree — which carries a penalty of from one to ten years in the penitentiary — and because of evidence of one prior conviction of a felony the sentence was doubled, as provided by statute. The defendant was taken to the county jail to await transportation to the penitentiary. Three days later — the delay being through no request or fault of the prisoner — he was again brought before the court, additional evidence received as to prior convictions, and the former sentence set aside and a sentence of life imprisonment imposed. We squarely held that the trial court had exceeded its powers and that the later sentence was unauthorized and void. Pertinent parts of the syllabus read as follows:

“Under our statute (G. S. 1935, 62-1518) a valid judgment and sentence in a criminal case is effective from the time it is rendered. . . . When a valid judgment and sentence has been rendered in a criminal case the court has no authority after the sentence imposed has been served, in whole or in part, to set it aside and hear additional evidence and impose a new sentence, even though this be done at the same term of court.” (Syl. ¶[¶ 1, 2.)

In the opinion in the Parks case the authorities generally were carefully reviewed and we need not again go over the same ground. No distinction was there drawn between a new sentence which increases and one which diminishes the sentence. The decision rested upon the broad principle that after the defendant had entered upon the sentence the court no longer had jurisdiction to modify the sentence. Not only is the case controlling here, but we believe it lays down the only safe and sound rule to follow. If the door is opened in any case and in any degree to modification of a sentence after the execution of the sentence has begun, when may .the right to open the door be denied and how wide may the door be opened? If the judge of the trial court, in pondering the case after the prisoner has begun to serve his sentence, concludes that he has erroneously admitted or excluded some evidence, if he concludes that he wrongly stated the law in one of 'his instructions to the jury, or in any one of countless other ways had committed trial error, or had perhaps been a little too harsh in the sentence imposed — shall he then be permitted to modify the sentence, or to bring the prisoner back for new trial? We can see only uncertainty, confusion, and the possibility of grave abuses in recognizing any such power after sentence has begun.

Refusal to approve the action of the trial court in this case — no matter how worthy the motive which prompted the action may have been — involves no denial of the defendant’s rights. There were at hand many ways in which her present contention could have been properly presented. She could have moved to quash the information as to the second and third counts. She could have moved to dismiss as to those counts. She could have objected to introduction of evidence as to those counts. She did none of these things. On the contrary, she pleaded guilty to each of the three counts. In no way did she challenge the right of the state to try her upon the second and third counts until after the pleas had been entered. She filed no motion for leave to withdraw her pleas. She did not file motion for a new trial. She filed no notice of appeal from the sentences on the second and third counts.

There is no need here for'any extended comment on the question of prior jeopardy. The general rule is that prior jeopardy is a matter of affirmative defense and must be raised by special plea. (L. R. A. 1917A, 1233, and extensive citation of supporting cases; 1 Wharton’s Criminal Law 12th ed. p. 556). It is also well settled that the defense of prior jeopardy may be waived (22 C. J. S. 412; Brady v. U. S., 24 F. 2d 399, 405, and many cases there cited; Curtis v. U. S., 67 F. 2d 943, 948; State v. White, 71 Kan. 356, 360, 80 Pac. 587, and other Kansas cases there cited). Appellee’s pleas of guilty to the second and third counts constituted such waiver (22 C. J. S. 413; Bracey v. Zerbst Warden, C. C. A. Kan., 93 F. 2d 8; U. S. v. Harrison, D. C. N. Y., 23 F. Supp. 249, affirmed 99 F. 2d, 1017).

We may say, in conclusion, that reversal of the orders and judgment setting aside the original sentences on ,the second and third counts leaves the original sentences standing as to all three counts. We here express no' opinion on the question of whether appellee’s contention that the original sentence was void as to the second and third counts might be raised, at appropriate time, in a habeas corpus proceeding, or whether it could yet be raised by appeal from the original judgment and sentence.

The judgment of the trial court rendered on February 10, 1943, setting aside the sentences heretofore imposed on the second and third counts and permitting the defendant to withdraw her pleas as to such counts must be reversed, set aside and held for naught. It is so ordered.