In re Petition of Donnelly

• Citation: 30 Kan. 191,1 P. 648
• Parties: In the matter of the Petition of NEIL DONNELLY AND MORRIS COTTER, for a Writ of Habeas Corpus
• Decision Date: 01 July 1883
• Court: United States State Supreme Court of Kansas

1 P. 648

30 Kan. 191

In the matter of the Petition of NEIL DONNELLY AND MORRIS COTTER, for a Writ of Habeas Corpus

Supreme Court of Kansas

July 1, 1883

Original Proceedings in Habeas Corpus.

PETITION for a writ of habeas corpus, filed in this court, March 22 1883, by Neil Donnelly and Morris Cotter. The petitioners alleged that--

"They are unlawfully imprisoned, detained, confined and restrained of their liberty by Henry B. Asher, at the city of Lawrence in the county of Douglas and state of Kansas; that said imprisonment, detention, confinement and restraint are illegal; and that the illegality thereof consists in this, to wit: that the said Asher pretends and claims to hold your petitioners and restrain them of their liberty under and by virtue of a written order of commitment, signed, and directed to said Asher as sheriff of said county, by one S.D. Anderson as a justice of the peace of Palmyra township, in said county of Douglas, commanding said Asher to commit your said petitioners to the jail of said county of Douglas, to answer charges against them at the next term of the district court thereof for selling intoxicating liquor without license; that said justice, as your petitioners believe and charge, had no jurisdiction or power to order or require your petitioners to give bail for their appearance at the next term of the district court of said county for trial, in default of which it is alleged that said commitment was issued; and that said commitment was illegal and void.

"Wherefore your petitioners pray that a writ of habeas corpus may be granted, directed to said Henry B. Asher, commanding him to have the bodies of the said Morris Cotter and Neil Donnelly before your honor, at a time and place to be specified, to do and receive what shall then and there be considered by your honor concerning them, together with the time and cause of said detention, and said writ, and that they may be restored to their liberty."

The writ prayed for was issued, and made returnable before the supreme court, at Topeka, April 5, 1883.

Judgment rendered.

John Hutchings, for plaintiffs.

George J. Barker, for respondent.

VALENTINE, J. HORTON, C. J., concur. BREWER, J., dissent.

OPINION

VALENTINE, J.:

This is a proceeding in habeas corpus, brought originally in this court. The petitioners were charged with the offense of selling intoxicating liquors in violation of the prohibitory law. This offense is a misdemeanor, in which the fine cannot exceed $ 500, and the imprisonment cannot exceed one year. It is conceded that of such offenses justices of the peace and the district courts have concurrent original jurisdiction. (Laws of 1869, ch. 61, §§ 1, 2; Gen. Stat. 1868, ch. 28, § 1; Comp. Laws of 1879, ch. 83, § 1; id., ch. 28, § 1; The State v. Granville, 26 Kan. 158.)

The petitioners were taken before a justice of the peace on such charge, and when brought before the justice they demanded a trial, but the county attorney asked for a preliminary examination, which was granted by the justice. As a result of such examination, the defendants were committed, in default of bail, to the county jail for trial at the next term of the district court. They now file a petition in habeas corpus in this court, asking to be released from such imprisonment, claiming that it is illegal and void. It will therefore be seen that the only question involved in this case is, whether, when a party is arrested and brought before a justice of the peace, charged with the commission of a misdemeanor of which the justice of the peace and the district court have concurrent original jurisdiction, the defendant has a right to demand a trial before the justice of the peace; or may the state elect to treat the proceeding before the justice as a mere preliminary examination, and have the party committed for final trial at the next term of the district court?

Prior to 1869, justices of the peace had exclusive original jurisdiction, coextensive with their respective counties, in all cases of misdemeanor in which the fine could not exceed five hundred dollars and the imprisonment could not exceed one year, and no preliminary examination was allowable in such cases. The principal provisions of the statute relating to this subject read as follows:

"SECTION 1. Justices of the peace shall have exclusive original jurisdiction, coextensive with their respective counties, in all cases of misdemeanor in which the fine cannot exceed five hundred dollars and the imprisonment cannot exceed one year, except as otherwise provided by law.

"SEC. 2. Whenever a complaint shall be made to a justice of the peace, on the oath or affirmation of a person competent to testify, charging any person with the commission of any misdemeanor, he shall forthwith issue a warrant for the arrest of such person, and cause him to be brought forthwith before him for trial. Such warrant shall be executed by the sheriff, or any constable of the county, or any person specially appointed, in writing, by the justice. . . ."

"SEC. 24. If, in the progress of any trial before a justice of the peace under the provisions of this act, it shall appear that the defendant ought to be put upon his trial for an offense not cognizable before a justice of the peace, the justice shall immediately stop all further proceedings before him, and proceed as in other criminal cases exclusively cognizable before the district or criminal court." (Gen. Stat. of 1868, ch. 83, §§ 1, 2, and 24.)

The above-quoted statutes are still in force, except that § 1, above-quoted, was amended in 1869, so as to read as follows:

"SECTION 1. Justices of the peace shall have concurrent original jurisdiction with the district court, coextensive with their respective counties, in all cases of misdemeanor in which the fine cannot exceed five hundred dollars, and the imprisonment cannot exceed one year, except as otherwise provided by law." (Laws of 1869, ch. 61, § 1; Comp. Laws of 1879, ch. 83, § 1; also §§ 2 and 24.)

The only effect of the amendment of the Laws of 1869 is to give district courts equal and concurrent original jurisdiction with justices of the peace in all cases of misdemeanor in which the fine cannot exceed five hundred dollars and the imprisonment cannot exceed one year; and it did not and could not have the effect to authorize preliminary examinations.

There is no statute in existence that requires that preliminary examinations shall be had in cases of misdemeanor in which the fine cannot exceed five hundred dollars and the imprisonment cannot exceed one year; and there is no statute in existence authorizing justices of the peace, either with or without the consent of the county attorney, to divest themselves of jurisdiction in such cases of misdemeanor to finally hear and determine the cases when jurisdiction has once attached. On the contrary, § 2, above quoted requires that whenever a party has been arrested on the charge of committing a misdemeanor as above specified, he shall be brought forthwith before the justice, not for preliminary examination, but for trial. And while there is no statute which requires that a preliminary examination shall be had in any such cases of misdemeanor, yet there is a statute which requires that a preliminary examination shall be had in all cases of felony. (Laws of 1871, ch. 117, § 2, amending § 69 of the Criminal Code.) The word "felony" in the section just cited is erroneously printed "offense" in the Compiled Laws of 1879. This misprint misled this court in the case of The State v. Granville, 26...