SYLLABUS BY THE COURT
1. CRIMINAL LAW — Preliminary Hearing — Waiver. Absence or alleged insufficiency of a preliminary hearing in a felony case or other complaints set forth in the opinion which occurred, if at all, prior to arraignment and a plea of not guilty entered in the district court, without a plea in abatement or other objection to proceeding with a trial on its merits, are held to have been waived.
2. HABEAS CORPUS — Irregularities — Review. Habeas corpus is not a substitute for appellate review of trial errors.
3. SAME — When Judgments Not Set Aside. Judgments, or provisions thereof, are not set aside on the uncontradicted testimony of a petitioner for a writ of habeas corpus.
4. SAME — Proceedings — Burden of Proof. A petitioner for a writ of habeas corpus has the burden of establishing alleged grounds for his release from custody by a preponderance of evidence which is convincing to the trier of the facts.
5. CONSTITUTIONAL LAW — Sentence — Function of Court — Validity of Statute. A determination of the length of sentence to be pronounced pursuant to G.S. 1949, 21-107a, our habitual criminal statute, is no concern of the jury but rests solely in the province of the trial court. The statute is not unconstitutional by reason of the fact no issue was joined in the trial of the action relative to the commission of a previous offense, or offenses.
6. HABEAS CORPUS — Grounds — Writ Denied. The record presented by an original proceeding in this court examined, considered and held, it does not justify the issuance of a writ on any ground alleged for petitioner's release.
The opinion of the court was delivered by
WEDELL, J.:
This is an original proceeding whereby petitioner seeks his release from the state penitentiary by petition for a writ of habeas corpus. He was convicted on two felony counts, the first being for felonious assault, under G.S. 1949, 21-431, and on the second count for second degree robbery of the person assaulted, in violation of G.S. 1949, 21-528. Having previously been convicted of two felony charges, petitioner was sentenced to life imprisonment in the state penitentiary pursuant to provisions of our habitual criminal law, G.S. 1949, 21-107a.
Briefly stated, the grounds for release alleged in the petition are:
1. He did not receive a preliminary examination. 2. The journal entry of his preliminary examination was false. 3. False and perjured testimony was used in preparing the journal entry. 4. The warrant of arrest was erroneous. 5. He did not waive his preliminary examination. 6. He was held incommunicado, 168 hours after his arrest, and before arraignment. 7. The authorities conspired to defeat justice. 8. The journal entry in case 10,241 does not comply with G.S. 1949, 62-1516, and 9. G.S. 1949, 21-107a (the habitual criminal statute) is unconstitutional.
Respondent's answer contained a general denial of all averments of the petition not specifically admitted and set forth the amended information, the original journal entry of conviction, a subsequent journal entry corrected pursuant to a nunc pro tunc order and the commitment.
Petitioner previously filed five petitions for writs between February 3, 1948, and June 12, 1950. The first three of these were original proceedings in this court and the other two were filed in other courts. Those filed and denied in this court contained, among other grounds, the complaints now made pertaining to the warrant under which he was arrested, lack of a preliminary hearing and that he was held incommunicado prior to arraignment. These petitions were denied by this court without formal opinion. The instant petition contains nothing new on those grounds.
The journal entry touching his preliminary hearing on the two offenses for which he was last tried and convicted discloses petitioner waived his preliminary hearing. The journal entry of judgment in the district court discloses he was represented by two attorneys during the trial and on the motion for a new trial. At the trial petitioner made no complaint he had not received a preliminary hearing or that it was irregular in any respect. On the contrary he joined issues in the district court on the charges contained in the information by entering a plea of not guilty and thereafter proceeded with the trial without objections of any character concerning any previous court proceedings or conduct of officers in whose custody he had been held. He filed no plea in abatement. He sought no continuance on the ground he or his attorneys were prevented from investigating the facts, subpoenaing necessary witnesses or that he was unprepared for trial by reason of any of the first six grounds now alleged in his petition. Under these circumstances he waived such complaints. ( State v. Perry, 102 Kan. 896, 171 P. 1150; State v. Wallgren, 144 Kan. 10, 11, 58 P.2d 74.)
Had petitioner properly raised these complaints in the district court he could have presented them on appeal in the event of adverse rulings. He failed to present them to the district court and did not appeal. Habeas corpus, of course, is not a substitute for redress of alleged trial errors which may be corrected on appeal. ( Townsend v. Hudspeth, 167 Kan. 366, 205 P.2d 483.) It is, of course, elementary that a petitioner is required to establish alleged grounds for a writ by a preponderance of the evidence. ( Rice v. Hudspeth, 166 Kan. 662, 203 P.2d 169.) This burden of proof the petitioner has completely failed to meet with respect to complaint No. 7.
The instant record fails to disclose any merit relative to complaint No. 8. Respondent concedes the original journal entry of judgment did not conform in all respects to the provisions of G.S. 1949, 62-1516. He states, however, it was corrected by means of a nunc pro tunc order to speak the truth and to comply with the statute. That corrections in a journal entry may be made for that purpose and in that manner has been indicated clearly by this court on various occasions. A few of the cases are Wilson v. Hudspeth, 165 Kan. 666, 198 P.2d 165; Jamison v. Hudspeth, 168 Kan. 565, 213 P.2d 972. The petitioner fails to disclose in what manner, if any, the judgment under which he is now serving his sentence is invalid or irregular.
Petitioner's ninth ground cannot be sustained. The statute repeatedly has been held to be constitutional in State v. Woodman, 127 Kan. 166, 272 P. 132; Levell v. Simpson, 142 Kan. 892, 52 P.2d 372; Hutton v. Amrine, 153 Kan. 436, 111 P.2d 540, and in numerous later decisions. The petitioner argues that although the statute may not be unconstitutional in itself it is unconstitutional by reason of the manner of its application. He argues no issues were joined in the trial of the case concerning the commission of other previous offenses. Manifestly, no such issues were joined by the allegations of the information and the plea of not guilty. The commission of previous offenses was no concern of the jury. It was not concerned with the sentence to be pronounced but only with his innocence or guilt of the charges for which he was then on trial. The matter of imposing a proper sentence rested solely in the province of the court. It was to the advantage and for the benefit of the petitioner that the jury was not informed of his previous convictions. The contention of the petitioner and the reasons for denying it were early set forth in State v. Woodman, supra, and need not be repeated here. See, also, Levell v. Simpson, supra.
The journal entry of judgment discloses that after the verdict of the jury had been rendered and before sentence was pronounced petitioner's attention was called to the evidence of the state touching his former convictions. In fact when petitioner thereafter was asked whether he had any legal cause to show why sentence should not be pronounced against him neither he nor his counsel asserted any reasons against a consideration of the previous felony conviction or to the imposition of sentence in harmony with the provisions of the habitual criminal law.
The writ must be denied. It is so ordered.
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