Opinion
No. 43,191
Opinion filed November 3, 1962.
SYLLABUS BY THE COURT
APPEAL AND ERROR — Rule No. 5 — Requirements — Failure to Comply — Appeal Dismissed. Following the numerous decisions cited in this opinion it is held:
(1) Rule No. 5 of this court (see 186 Kan. XI; G.S. 1949, 60-3826, "Rules of the Supreme Court No. 5") requires that the party seeking appellate review of a trial court's order or judgment shall include in his abstract a specification of the errors of which he complains, separately set forth and numbered.
(2) Where an appellant has made no attempt to conform with the requirements of the rule mentioned in the preceding paragraph of this syllabus and has failed to set forth in his abstract a specification of the errors complained of, in compliance with such rule, appellate review is precluded and his appeal will be dismissed.
Appeal from Leavenworth district court; KENNETH HARMON, judge. Opinion filed November 3, 1962. Dismissed.
Charles H. Hall, Appellant, pro se. Park McGee, Assistant Attorney General, argued the cause, and William M. Ferguson, Attorney General, was with him on the briefs for the appellee.
The opinion of the court was delivered by
This is an appeal from a judgment of the district court of Leavenworth County which, after full and complete hearing, denied petitioner's application for a writ of habeas corpus releasing him from the Kansas State Penitentiary, where he is now serving an unexpired sentence of imprisonment imposed, under the provisions of G.S. 1949, 21-107a, by the district court of Sedgwick County on the verdict of a jury finding him guilty of the crime of robbery in the first degree.
The facts and circumstances leading up to and resulting in appellant's present incarceration are reported and set forth in State v. Hall, 182 Kan. 331, 320 P.2d 860. So are this court's reasons for the affirmance of the judgment of conviction. Therefore, since nothing is to be gained by repeating what is already in our reports we make, by reference, what is said in the decision of that case with regard to the matters to which we have just referred a part of this opinion, as fully and completely as if they were set forth at length herein.
Moreover, it is neither necessary nor required that we labor the confusing claims advanced and relied on by appellant as grounds for reversal of the trial court's judgment in the instant appeal. From the record presented it clearly appears that, in utter disregard of the requirements of Rule No. 5 (see 186 Kan. XI; G.S. 1949, 60-3826, "Rules of the Supreme Court No. 5"), appellant seeks a review of those claims with an abstract of record which contains no specification of errors whatsoever. Under such circumstances the now definitely established rule of this jurisdiction is that where an appellant has made no attempt to comply with the requirements of Rule No. 5 of this court, appellate review is precluded and his appeal must be dismissed.
We are neither inclined nor disposed to again labor the reasons responsible for the court's enunciation and application of the rule just mentioned. It suffices to say the reasons have been considered and discussed, and the rule applied, under divers conditions and circumstances, in many decisions, both criminal and civil, to which we adhere. See, e.g., Messmore v. Hand, 185 Kan. 774, 775, 347 P.2d 402; Blevins v. Daugherty, 187 Kan. 257, 259, 356 P.2d 852; State v. Armstrong, 188 Kan. 567, 569, 570, 363 P.2d 520; Lemon v. Pauls, 189 Kan. 314, 369 P.2d 355, and the numerous decisions therein cited.
In passing it should perhaps be noted that, in the face of the record presented, there are two sound reasons for the affirmance of the instant appeal even if the foregoing established rule did not require its dismissal.
In the first place appellant, at the outset of his brief, states that the questions raised by his appeal deal with alleged trial violations. The record fails to disclose that he filed any motion for a new trial. Under our decisions, absent a motion for new trial, and for that matter absent an appeal from an order overruling a motion for a new trial, or in the event of a failure to specify the overruling of such a motion as error, there can be no re-examination of the issues of fact. See Johnson v. Best, 156 Kan. 668, 135 P.2d 896; State v. Turner, 183 Kan. 496, 328 P.2d 733, 359 U.S. 206, 3 L.Ed.2d 759, 79 S.Ct. 739; Prater v. Hand, 185 Kan. 405, 345 P.2d 634; American State Bank v. Holding, 189 Kan. 641, 643, 371 P.2d 167; Andrews v. Hand, 190 Kan. 109, 110, 372 P.2d 559. In the second our review of the record convinces us that in the habeas corpus case now under consideration appellant was really attempting to have a subsequent review of our decision in State v. Hall, 182 Kan. 331, 320 P.2d 860, affirming his judgment and sentence. Under our repeated decisions (see Germany v. Hudspeth, 174 Kan. 1, 2, 252 P.2d 858, and the numerous decisions of like import listed in West's Kansas Digest, Habeas Corpus, § 4) a habeas corpus proceeding is not a substitute for appellate review and cannot be used as a supplement to an appeal or as a guise for a second appeal.
Under the related facts and circumstances adherence to Rule No. 5 and the decisions heretofore cited requires that the instant appeal be dismissed.
It is so ordered.