Kinnell v. State

205 Kan. 445 (1970)

469 P.2d 348

DALE HOUSTON KINNELL, Appellant, v. THE STATE OF KANSAS, Appellee.

No. 45,743

Supreme Court of Kansas.

Opinion filed May 9, 1970.

Anna I. Shinkle, of Fort Scott, argued the cause and was on the brief for the appellant.

Ernest C. Ballweg, assistant attorney general, argued the cause, and Kent Frizzell, attorney general, was with him on the brief for the appellee.

The opinion of the court was delivered by

HARMAN, C.:

Appellant Dale Houston Kinnell was convicted and sentenced for the offenses of kidnaping in the first degree and forcible rape. Upon direct appeal those convictions were affirmed (State v. Kinnell, 197 Kan. 456, 419 P.2d 870).

This appeal is from an order summarily overruling appellant's third motion to vacate those sentences under K.S.A. 60-1507.

Appellant's only ground for relief in this proceeding is the allegation he was initially arrested in Linn county, Kansas, by a state highway patrolman without a warrant and held for a period of five days, first in the Linn county jail and then in the Bourbon county jail, prior to the time an arrest warrant was issued and served upon him. Appellant has not previously raised the contention.

The motion might well be disposed of as an unwarranted successive motion in violation of subsection (c) of K.S.A. 60-1507 as implemented by Rule No. 121 (d) of this court (201 Kan. XXXIII). However, treated upon its merits, the issue raised entitles appellant to no relief because he makes no showing of prejudice in any way to his substantial rights by reason of the alleged illegal arrest and detention.

An illegal arrest and detention do not, standing alone, invalidate a subsequent conviction (Baier v. State, 197 Kan. 602, 419 P.2d 865; State v. Dobney, 199 Kan. 449, 429 P.2d 928; Wheeler v. State, 202 Kan. 134, 446 P.2d 777; Moreland v. United States, 347 F.2d 376 *446 [10 CA, 1965]; Davis v. United States, 416 F.2d 960 [10 CA, 1969]; United States ex rel. Ali v. Deegan, 298 F. Supp. 398 [SD, NY, 1969]).

The trial court ruled correctly and its judgment is affirmed.

APPROVED BY THE COURT.