Foley v. Ham

• Decision Date: 08 December 1917
• Docket Number: 21,110
• Citation: 169 P. 183,102 Kan. 66
• Parties: P. T. FOLEY, Appellee, v. T. B. HAM et al., Appellants
• Court: Kansas Supreme Court

169 P. 183

102 Kan. 66

P. T. FOLEY, Appellee, v. T. B. HAM et al., Appellants

No. 21,110

Supreme Court of Kansas

December 8, 1917

Decided July, 1917.

Appeal from Labette district court; ELMER C. CLARK, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. CRIMINAL PROSECUTIONS--In Control of County Attorney. While the county attorney is not required to take part in a preliminary examination in a felony case unless requested to do so by the magistrate, if he does appear he is entitled to have full charge of the prosecution, and the case should be dismissed if he so directs.

2. SAME--County Attorney May Dismiss Action. Where a justice of the peace sitting as an examining magistrate refuses to dismiss a criminal prosecution on the motion of the county attorney, the district court, by an order in the nature of a writ of prohibition, may compel such action.

3. SAME--Refusal of Justice to Dismiss Action--Writ of Prohibition. Where a county attorney asks the dismissal of a criminal case pending before a justice of the peace, and his request is denied, no further challenge of the right of the justice to proceed therein is necessary to give a basis for asking relief by prohibition.

4. SAME--Transcript--Recitals of Justice's Docket--Jurisdiction of District Court. A transcript of the docket of a justice of the peace, which recites that after a preliminary examination a defendant was required to give bail for his appearance in the district court to answer the charge against him, is sufficient (together with the recognizance given by the defendant) to confer jurisdiction on the district court, although it omits a recital that it was found that an offense had been committed and that there was probable cause to believe the defendant guilty.

5. SAME -- Unwarranted Prosecutions -- Injunction. Injunction against the maintenance of vexatious and unwarranted criminal prosecutions may be allowed against individuals even where no property rights are threatened.

Archie D. Neale, of Chetopa, for the appellants.

E. L Burton, and George F. Burton, both of Parsons, for the appellee.

OPINION

MASON, J.:

P. T. Foley was arrested upon a charge of paying persons to work (and in some instances to vote) for the election of certain candidates for public office, such conduct constituting a felony under the corrupt practices act. (Gen. Stat. 1915, §§ 4342, 4343.) A preliminary examination was held before a justice of the peace, by whom he was required to give bond to answer the charge. In the district court the county attorney asked to be relieved from filing an information, for the reason, among others, that there was not sufficient evidence in his possession to warrant a prosecution. The court made an order granting the request and the case was dismissed. The complaining witness then applied to other justices of the peace to issue a warrant on a complaint charging the same offenses. Two of them refused to do so, but a third issued a warrant and held an examination, resulting in the discharge of the defendant for want of evidence. A similar complaint was then filed with another justice of the peace, Johnson Wade, who issued a warrant upon which Foley was again arrested. The county attorney filed a written motion asking, and undertaking to direct, that the case be dismissed. The justice of the peace overruled the motion. Foley then brought an action in the district court against the justice of the peace (Wade), the complaining witness, T. B. Ham, and his attorney, A. D. Neale, asking that further proceedings before the justice be forbidden. Issues were joined, evidence was taken, and judgment was rendered in accordance with the prayer of the petition. The defendants appeal.

1. So far as concerns the justice of the peace the case amounts to an application for a writ of prohibition (or for a judgment or order in the nature of such a writ) forbidding further proceedings in the criminal case on the ground that the county attorney had full right to control the matter, and his direction for a dismissal should have been given effect. The first inquiry is as to the extent of the power of the county attorney in that respect. It is said that the public prosecutor, except as restrained by statute, has absolute control of criminal prosecutions, and has authority in virtue of his office to enter a nolle prosequi--a virtual dismissal--regardless of the attitude of the court. (32 Cyc. 713; 2 Bishop's New Criminal Procedure, 2d ed., § 1388; People, ex rel., v. District Court, 23 Colo. 466, 48 P. 500.) The practice in that respect, however, is not uniform in the different jurisdictions. ( Notes, 35 L. R. A. 701; 45 L.R.A. N.S. 1123.) Our statute recognizes the county attorney's right under ordinary circumstances to refuse to prosecute, by providing that in extreme cases the court may compel him to file an information. (Gen. Stat. 1915, § 7981.) And his need to exercise discretion in determining whether prosecutions shall be brought is made the ground of exempting him from civil liability for wrongfully instituting them. ( Smith v. Parman, 101 Kan. 115, 165 P. 663.) He is made the representative of the state in litigation "in the several courts" of his county to which it is a party. (Gen. Stat. 1915, § 2620.) He is required to take charge of a preliminary examination in a felony case only when requested to do so by the magistrate. (Gen. Stat. 1915, § 2624.) The statute contemplates that criminal prosecutions may be instituted not only without his participation, but without his knowledge, provision being made for the protection of the public against costs in such cases, except upon his statement that prior consultation with him was impracticable. (Gen. Stat. 1915, § 4753.) Under statutes quite similar to ours it has been held that a court may by mandamus compel a sheriff to serve a warrant in a felony case, notwithstanding the county attorney had instructed him not to do so. (Beecher v. Anderson, 45 Mich. 543, 8 N.W. 539.) This decision has been cited in support of the doctrine that the county attorney does not have absolute control of a criminal case. (32 Cyc. 714; 23 A. &E. Encycl. of L. 275.) It is based, however, upon the conclusion that in the statute making it his duty to "appear for the state or county, and prosecute or defend in all the courts of the county, all prosecutions, suits, applications, and motions, whether civil or criminal, in which the state or county may be a party or interested," the phrase "the courts of the county" is intended to refer only to courts of record. In a situation closely analogous to that presented in the Michigan case this court held that the direction of the county attorney was controlling. A warrant charging a felony was placed in the hands of the sheriff. The county attorney directed him to return it and he did so. More than two years later the defendant was arrested upon the same warrant and claimed the benefit of the statute of limitations. The question presented was whether the prosecution was to be regarded as pending between the return of the warrant already referred to and its reissuance, and this was treated as depending upon the power of the county attorney to control it. This court held that the bar of the statute had fallen, saying:

"The county attorney is the representative of the state in criminal prosecutions, and, subject only to a limited direction by the court, controls such actions. . . . And when the sheriff, by the direction of the county attorney, returns a warrant which has been placed in his hands for service to the court that issued it, this ends the official connection of the sheriff with such warrant, renders the warrant functus officio, and effects an abandonment of the prosecution by the state." (In re Broadhead, 74 Kan. 401, 405, 86 P. 458.)

Notwithstanding that the county attorney is not required to attend a preliminary examination unless asked to do so, we hold that he may appear if he sees fit, and when he does his authority is as complete as though his presence had been requested. The proceeding, while somewhat informal, is an adversary one. It is accusatory or litigious rather than inquisitorial in character. It has something of the aspect of a voluntary investigation conducted by the magistrate, while exercising a function somewhat analogous to that of a grand jury, to determine whether or not there is ground for a prosecution. But under our practice it is quite different from that. It constitutes actual litigation between opposing parties. Testimony taken at such a hearing may be used at the trial in the district court, if the attendance of the witness cannot be had (The State v. Chadwell, 94 Kan. 302, 146 P. 420; 8 R. C. L. 213, 214), a course which could scarcely be justified if the proceedings were not essentially judicial--a trial between opposing parties presided over by a judge. The state is the plaintiff, and the state's attorney, rather than the complaining witness or any other unofficial person, is entitled to speak in its behalf, and decide upon the course to be pursued in its interest.

"Unquestionably, a private individual has no longer any right to prosecute another for crime,--no right to control any criminal prosecution when once instituted. A criminal prosecution is a state affair, and the control of it is in the public prosecutor. . . . The purpose of a public prosecution is to prevent the use of the criminal law to gratify private malice or accomplish personal gain. This purpose is fully subserved when the control of the case is with the county attorney." (State v. Wilson, 24 Kan. 189, 192.)

"The law makes it the duty of the county attorney to conduct criminal prosecutions on behalf of the state, and all steps in the trial are alike under his...