State v. Sweet

Citations

• 101 Kan. 746
• 168 P. 1112
• 1917 Kan. LEXIS 189

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Homicide — Plea in Abatement — Preliminary Exmination — Waiver. A plea in abatement based upon allegations that a defendant charged with a'felony had not .been given a preliminary examination, and that his waiver of it was made involuntarily and in fear of mob violence, presents an issue of fact; and the determination thereof by the trial court upon sufficient though disputed and conflicting evidence is ordinarily conclusive on appeal.</p> <p>2. Same. A defendant charged with murder in one county was taken to the county jail of another county for safe-keeping. There was some danger of mob violence to defendant in the county where the crime was committed. 'The defendant while in jail in the other county, in perfect safety and without coercion, agreed to make a night journey into the county having jurisdiction, and agreed to waive his preliminary examination before a magistrate. The journey was made; the magistrate met the defendant and his escort on the prairie at midnight; the warrant was read to him; he knew what crime he was charged with; he formally waived his examination according to the-prearranged plan and agreement; and the magistrate noted the fact of waiver in his docket. The defendant was then carried back to the jail to await his trial in the district court. Held, that the circumstances show a voluntary waiver of defendant’s right to a preliminary examination, and that his plea in abatement was properly overruled. .</p> <p>'3. Same — Motion for Continuance Denied — No Error. In a prose- . cution for a felony, it is not error to overrule a motion for a continuance based upon the absence of defendant’s chief counsel, when the trial court is satisfied that the junior counsel hurriedly called into the case are. experienced lawyers and thoroughly competent to conduct the defense and to protect the rights of the accused.</p> <p>4. Same — Changing Place of Trial. Where the record is silent as to the reasons for changing the pl