# State v. Brown > Supreme Court of Kansas · November 4, 1937 · 146 Kan. 525 URL: https://www.frixlaw.com/law-library/cases/7913889 ## Case - **Full name:** The State of Kansas v. Richard E. Brown - **Court:** Supreme Court of Kansas - **Decided:** November 4, 1937 - **Citations:** 146 Kan. 525; 73 P.2d 19; 1937 Kan. LEXIS 18 - **Precedential status:** Published - **Opinion:** Opinion of the court by Allen - **Judges:** Allen, Reached, Smith, Wedell - **Cited by:** 11 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/7913889 ## Opinion text The opinion of the court was delivered by Allen, J.: The defendant was convicted of the crime of statutory rape, and appeals. In November, 1933, the defendant was tried in the district court of Gove county, Kansas, on an information wherein he was charged in one count with the crime of rape, alleged to have been committed within two years preceding the filing of the information, but specify *526 ing no particular date. Upon proper motion of the defendant the state elected to stand on the proof of the crime committed on March 18, 1932. The jury returned a verdict of not guilty. Thereafter a new information was filed charging the defendant with the crime of rape on five specific dates, all within the two-year period mentioned in the former information. Upon an original proceeding in habeas corpus it was held that upon a trial under the second information the accused would not be twice put in jeopardy for the same offense. (In re Brown, 139 Kan. 614 , 32 P. 2d 507 .) The second information was filed February 1, 1934. Sections 1 and 2 of chapter 163 of the Laws of 1935 read as follows: “When one is properly charged in one or more counts of a complaint, indictment, or information with an offense, or offenses, against any of the laws of the state, and upon the trial of the action evidence is admitted of other offenses which might have been included as other counts in the complaint, indictment, or information, or on which the state might have elected to rely in the action then being tried, a conviction or acquittal on the charge, or charges, as made in the complaint, indictment, or information, shall operate as a bar to any subsequent prosecution of the same person in another action for any act or acts for which the state could have asked for a conviction under the complaint, indictment or information in the former trial.” (G. S. 1935, 62-1449.) “This act shall take effect and be in force from and after its publication in the official state paper.” This act became effective February 20, 1935. The enactment of the statute was therefore subsequent to the date of the second information, but prior to the trial thereunder. On March 18, 1935, defendant filed a plea in abatement, on the ground that the statute above quoted operated as a bar to further prosecution. The state’s demurrer to this plea in abatement was sustained, and the defendant appealed. The appeal was dismissed by this court. (State v. Brown, 144 Kan. 573 , 61 P. 2d 901 .) Thereafter a trial was had and a verdict was returned finding the defendant guilty on three counts,i and this appeal is from the judgment of conviction. The defendant contends that the enactment of chapter 163 of the Laws of 1935 • granted him immunity from prosecution. He claims the act was valid and retroactive in operation. It is not denied that at the time the prosecution of the defendant was commenced the laws of the state denounced the crime charged against him, provided rules of procedure for his trial, and were ample to enforce the judgment pronounced. Did this act abolish the *527 rules of procedure then in force? It does not in terms purport to repeal any existing statute. At the time the act was passed there was in force G. S. 1935, 77-201, which provides: “In the construction of the statutes of this state the following rules shall be observed, unless such construction would be inconsistent with the manifest intent of the legislature or repugnant to the context of the statute: “First. The repeal of a statute does not revive a statute previously repealed, nor does such repeal affect any right which accrued, any duty imposed, any penalty incurred, nor any proceeding commenced, under or by virtue of the statute repealed. The provisions of any statute, so far as they are the same as those of any prior statute, shall be construed as a continuation of such provisions, and not as a new enactment.” This statute was construed in the case of In re Schneck, 78 Kan. 207, 96 Pac. 43 . In that case this court held the death penalty could be imposed, notwithstanding the fact the death-penalty statute had been repealed subsequent to the commission of the offense and prior to the trial. The court said: “It is urged on behalf of the petitioner that, as the criminal action against him was not commenced until after the repeal of the statute imposing the death penalty, the penalty of death cannot be imposed upon him, if he be convicted, and therefore the crime charged is not a capital offense and is bailable. Had the legislature in the enactment of the amendment which changes the penalty provided to what cases the amendment should be applicable with reference to the time of its passage, the special provision would control. In the absence, however, of any such provision the general provision in section 7342 applies. The disputed question, then, hinges upon the meaning of the words ‘penalty incurred,’ as used in the general provision. Primarily they mean a punishment brought upon one’s self, but they are used with reference to civil forfeitures also. Any civil claim to which the latter meaning might attach is fully comprehended and protected in a former clause of the section: 'any right which accrued.’ It is not to be presumed that the clause in question adds nothing to the provision; hence we conclude the words were used in their primary and more usual signification, and the clause is especially, if not solely, applicable to criminal cases. “The penalty is imposed by the court after the fact of guilt is legally determined. It is incurred when the act for which the law prescribes the penalty is committed. It follows, then, since the crime is charged to have been committed before the repeal of the statute prescribing the penalty of death, that the repeal and amendment do not affect the penalty of the crime charged, and, assuming that the proof is evident and the presumption great, the petitioner is not entitled to bail.” In the early case of State v. Boyle, 10 Kan. 113 , the power of the legislature in repealing a statute to save the rights and remedies that had accrued under it was considered. It was there said: *528 “This action was prosecuted under section 3 of the ‘Act relating to settlers upon land without any legal right thereto.’ (Chapter 96, G. S. 953.) This act was in force at the time the prosecution was commenced, but it was repealed before the defendant was sentenced, or before any judgment was rendered against him. The repealing statute is entirely silent as to whether rights or remedies already accrued, or prosecutions already commenced under it should be saved and preserved, or should be abrogated and destroyed. (Laws 1871, p. 28.) And if no saving clause or saving statute can anywhere be found, it must be of course admitted that the state has no right to proceed any further in the case after said repealing statute was passed. It must be admitted that no sentence can be pronounced and no judgment can be rendered under a statute that has been absolutely repealed. Was this statute absolutely repealed? Under the rules of the common law for determining the extent and the effect of repeals this statute would be absolutely repealed; but we shall presently see that these rules have been changed by statute in some very essential particulars. We suppose no one will question the power of the legislature, when repealing a statute, to save all rights and remedies which have accrued under it, to either the state or to individuals, and in criminal cases as well as in civil cases, and to provide that all suits then pending shall proceed to their final determination as though no repeal had ever been had. And we also suppose it will be conceded that if this court can determine from all the statutes that it was the will and intention of' the legislature, when they repealed any given statute, that all rights and remedies which had previously accrued thereunder should be saved, it would be our duty to so declare, whether the legislature had made their will and intention known by any express provision in the repealing statute or not. In other words, we suppose we are nbt bound to look to the repealing statute alone to ascertain the will and intention of the legislature in the premises, but may look for that purpose to all the statutes in force at the time of the passage of the repealing statute. At the time this repealing statute was passed, the following statute was in force: ‘The repeal of a statute does not revive a statute previously repealed, nor does such repeal affect any right which accrued, any duty imposed, any penalty incurred, nor any proceeding commenced under or by virtue of the statute repealed.’ This is a portion of section 1 of the ‘Act concerning the construction of statutes.’ (Chapter 104, G. S. 998.) And this statute changed the construction that would otherwise and at common law be given to said repealing statute.” It is clear that our statute G. S. 1935, 77-201, has always been construed as a saving statute as well as a guiding rule of construction. It becomes a part of every repealing statute that does not specifically state that it is to have a retrospective effect. Defendant admits the general rule to be that statutes are construed to operate prospectively rather than retrospectively, unless the contrary appears. (Douglas County v. Woodward, 73 Kan. 238 , 84 Pac. 1028 ; State v. Trust Co., 99 Kan. 841 , 165 Pac. 156 ; City of Wichita v. Railroad & Light Co., 96 Kan. 606 , 152 Pac. 768 ; Light *529 ner v. Insurance Co., 97 Kan. 97 , 154 Pac. 227 ; Bailey v. Baldwin City, 119 Kan. 605 , 240 Pac. 852 .) Defendant insists, however, there is a distinction where the statute applies to the procedure or remedy and does not affect any substantial rights. In support of this contention, counsel relies upon 59 C. J. 1173-1175 and many cases from other jurisdictions. The rule is not one of universal application. Thus, in United States v. St. Louis, Etc., Ry. Co., 270 U. S. 1 , 46 S. Ct. 182 , 70 L. Ed. 435 , it was said: “That a statute shall not be given retroactive effect unless such construction is required by explicit language or by necessary implication is a rule of general application. It has been applied by this court to statutes governing procedure, United, States Fidelity & Guaranty Co. v. United States, 209 U. S. 306 [ 52 L. Ed. 804 , 28 Sup. Ct. Rep. 537].” (p. 3.) In Serrault v. Price, 125 Kan. 548 , 265 Pac. 63 , it was held that an act reducing the time within which an action to contest might be brought, from two years to one year was prospective and not retrospective in effect. In Douglas County v. Woodward, supra, this court quoted with approval the following passage from Potter’s Dwarris, Stat. & Const. 162, note: “ ‘The general rule is that no statute, however positive in its terms, is to be construed as designed to interfere with existing contracts, rights of action or suits, and especially vested rights, unless the intention that it shall so operate is expressly declared, and courts will apply new statutes only to future cases, unless there is something in the very nature of the case, or in the language of the new provision, which shows that they were intended to have a retroactive operation. And although the words of the statute are broad enough in their literal extent to comprehend existing cases, they must yet be construed as applicable only to cases that may thereafter arise, unless a contrary intention is unequivocally expressed therein.’ ” (p. 241.) Section 2 of chapter 163 of the Laws of 1935 provided that “This act shall take effect and be in force from and after its publication in the official state paper.” It does not in terms apply to cases then pending, and we cannot translate “from and after” to mean “from and before.” Finally, we are urged to reconsider and overrule the law as stated by this court in syllabus paragraph four of In re Brown, 139 Kan. 614 , 32 P. 2d 507 . Even if that question were properly before us at this time, the majority of this court adheres to the rule there announced. *530 Finding no error in the record, the judgment must be affirmed. It is so ordered. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/7913889. Public record. Not legal advice.