In re Sim Brown

• Decision Date: 09 March 1901
• Docket Number: 12,125
• Citation: 64 P. 76,62 Kan. 648
• Parties: In re SIM BROWN
• Court: Kansas Supreme Court

64 P. 76

62 Kan. 648

In re SIM BROWN

No. 12,125

Supreme Court of Kansas

March 9, 1901

Decided January, 1901.

Original proceeding in habeas corpus.

Remanded.

L. C Waters, and Waters & Waters, for petitioner.

A. A Godard, attorney-general, and J. S. West, for respondent.

OPINION

CUNNINGHAM, J.:

This is an application for a writ of habeas corpus. The petition for the writ shows the following facts: On July 5, 1900, the petitioner was arrested on a warrant issued from "the court of Coffeyville." The warrant issued on a complaint charging the petitioner with having committed the offense of burglary and grand larceny. Being brought before the court on July 6, he requested that the case be continued until July 10, which was done. On that date he appeared in court with his attorney, and, after "being fully advised, he demanded a preliminary examination." On such examination the state introduced its evidence and the petitioner offered no evidence, but filed his motion in writing, requesting the court to dismiss the case and discharge him, alleging as grounds therefor that the court had no jurisdiction of the case, for the reason that the act creating it was unconstitutional, being in contravention of section 1, article 12, of the constitution of the state of Kansas. This motion was bye the court overruled. Upon examination, probable cause to believe the petitioner guilty was found, and, in default of bond, he was remanded to the jail of Montgomery county. At the November term of the Montgomery county district court the trial of the complainant came on and he pleaded not guilty. Upon trial by jury he was found guilty as charged, and afterward filed his motion for a new trial, but at no stage of the proceedings in the district court did he raise the question of the constitutionality of the act creating the court of Coffeyville or the legality of his preliminary examination. The motion for a new trial was overruled, and the petitioner was sentenced to imprisonment in the state penitentiary for the term of two years. This constitutes the illegal detention of which he complains.

In this court he seeks to raise the question whether the court of Coffeyville was constitutionally created, citing several authorities in support of his contention that it was not and, as subsidiary thereto, whether he had had a preliminary examination. We think, however, that complainant is too late with his contention. ...