Arley C. Browning, Petitioner, v. Tracy A. Hand, Warden, Kansas State Penitentiary, Lansing, Kansas, Respondent

Kansas Supreme Court1959-03-07No. No. 41,283

184 Kan. 365336 P.2d 409

Summary · law.co

Holding. The court denied the petition for habeas corpus, holding that none of petitioner's contentions provided grounds for release. The court found that consolidation of informations had been previously addressed adversely to petitioner, that sufficiency of an information cannot be raised in habeas corpus proceedings, that prosecution by information rather than indictment does not violate constitutional rights, that the habitual criminal statute is constitutional, and that although the journal entry was incomplete, this defect did not render the sentence void and therefore did not entitle petitioner to release.

Petitioner sought habeas corpus relief following his conviction on multiple felony counts, including first-degree robbery and firearms violations. He had previously been convicted of felonies twice before, making him subject to Kansas's habitual criminal statute, which imposed a minimum fifteen-year sentence. The trial court sentenced him to life imprisonment on one count and fifteen years on other counts, with sentences to run concurrently. On appeal to the Kansas Supreme Court, petitioner raised several challenges to his conviction and sentence, including claims that the informations were defective, that prosecution by information rather than grand jury indictment violated his constitutional rights, that the habitual criminal statute was unconstitutional, and that the trial court's journal entry failed to properly document his prior convictions.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether consolidation of multiple informations for trial was proper
Whether prosecution by information rather than grand jury indictment violates constitutional rights
Whether Kansas's habitual criminal statute is constitutional
Whether deficiency in the trial court's journal entry regarding prior convictions provides grounds for habeas corpus relief

Procedural posture

Petitioner appealed his conviction to the Kansas Supreme Court, which affirmed; he then appealed to the United States Supreme Court, which dismissed the appeal; he thereafter filed an original habeas corpus petition in the Kansas Supreme Court.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

The opinion of the court was delivered by

Price, J.:

This is an original proceeding in habeas corpus in which petitioner seeks his release from the state penitentiary.

Following petitioner’s conviction in the district court of Sedgwick County he appealed to this court. We affirmed, and our decision is found in State v. Browning, 182 Kan. 244, 320 P. 2d 844. Petitioner then appealed to the Supreme Court of the United States, and that court, on May 19, 1958, per curiam, dismissed the appeal (356 U. S. 583,2 L. ed. 2d 1063, 78 S. Ct. 1002).

The seven separate offenses of which petitioner was convicted, and for which he was sentenced, are set out in our former decision. Having twice previously been convicted of a felony, the trial court sentenced petitioner under the habitual criminal statute (G. S. 1949, 21-107a), which provides that if a person be convicted a third time of felony he shall be confined in the penitentiary for a period of not less than fifteen years, and under G. S. 1949, 21-109, which provides that whenever an offender is declared by law punishable by confinement and hard labor for a term not less than any specified number of years and no limit to the duration of such imprisonment or confinement is declared, he may be sentenced to imprisonment during his natural life.

On one count of first degree robbery petitioner was sentenced to life imprisonment. On each of three other counts of first degree robbery he was sentenced to confinement for fifteen years. On the count of attempted first degree robbery he was sentenced to confinement for fifteen years. On each of two counts of violation of the firearms law he was sentenced to confinement for a period of not less than one nor more than five years. The sentences were ordered to run concurrently.

In the proceeding before us petitioner makes several contentions.

One is that the trial court erred in consolidating for trial the two informations filed against him. Assuming, solely for the sake of argument, the point may be raised in a habeas corpus proceeding, the question has been answered adversely to petitioner’s contention by our former decision in his appeal. (See syl. 1 of that opinion.)

Next, it is contended that one of the informations was defective in that it was vague and indefinite. This clearly is without merit, and furthermore, the established rule is that the sufficiency of an information may not be raised or considered in a habeas corpus proceeding. (Barrett v. Hand, 181 Kan. 916, 918, 317 P. 2d 412; Peay v. Hand, 184 Kan. 182, 334 P. 2d 369.)

It next is contended that petitioner’s constitutional rights were violated because he was proceeded against by information rather than by indictment by grand jury. There is no merit to this contention. (See Bailey v. Hudspeth, 164 Kan. 600, 191 P. 2d 894, and the numerous subsequent decisions adhering to the rule there announced.)

It is contended the habitual criminal act (G. S. 1949, 21-107a) is unconstitutional. This .argument likewise is without merit for the act has been upheld in numerous decisions. (See Scott v. Hudspeth, 171 Kan. 320, 232 P. 2d 464, and State v. Messmore, 175 Kan. 354, 264 P. 2d 911.)

Finally, it is contended petitioner is entitled to his release because the journal entry record of his conviction was defective in that it failed to contain a recital of the details of his former convictions as provided by G. S. 1949, 62-1516. Concededly, the journal entry should have been more detailed and complete in this respect in order strictly to comply with the mentioned statute, but the defect, if any, furnishes no ground for petitioner’s release. He has not served the sentence which was imposed and therefore is not entitled to his release. The sentence was not void — the journal entry was merely incomplete and subject to correction. (Wilson v. Hudspeth, 165 Kan. 666, 198 P. 2d 165, cert. den. 335 U. S. 909, 93 L. ed. 442, 69 S. Ct. 410, rehearing denied 336 U. S. 911, 93 L. ed. 1075, 69 S. Ct. 511; Jamison v. Hudspeth, 168 Kan. 565, 213 P. 2d 972; Reffitt v. Edmondson, 177 Kan. 83, 276 P. 2d 341.) The journal entry has been corrected, as evidenced by a certified copy of an order of the district court of Sedgwick County, dated January 16, 1959, filed with this court.

Petitioner has shown no ground for his release and his application for a writ of habeas corpus is denied.