State v. Bailey

• Decision Date: 01 January 1884
• Citation: 32 Kan. 83,3 P. 769
• Parties: THE STATE OF KANSAS v. JULIUS I. BAILEY
• Court: Kansas Supreme Court

3 P. 769

32 Kan. 83

THE STATE OF KANSAS v. JULIUS I. BAILEY

Supreme Court of Kansas

January 1, 1884

Appeal front Reno District Court.

PROSECUTION for murder in the first degree. The defendant, Julius I Bailey, was charged with feloniously killing and murdering his father, John P. Bailey, on May 21, 1883, in Reno county. Trial at the special term of the district court, begun July 24, 1883. Conviction and sentence for murder in the first degree. Defendant appeals. The opinion contains a sufficient statement of the case.

Judgment Affirmed.

James McKinstry, for appellant; Scheble & Vandeveer, of counsel.

W. A Johnston, attorney general, and R. A. Campbell, county attorney, for The State; Edwin A. Austin, of counsel.

VALENTINE J. HORTON, C. J., concurring. HURD, J., not sitting.

OPINION

VALENTINE, J.:

This was a criminal prosecution for murder in the first degree. The defendant, Julius I. Bailey, was charged with feloniously killing and murdering his father, John P. Bailey, on May 21, 1883, in Reno county, Kansas. He was tried, convicted and sentenced for that offense, and he now appeals to this court. The principal grounds upon which he relies for a reversal of the judgment of the court below may be stated under the following general heads: (1) error of the court below in finding against the defendant's plea in abatement; (2) error of the court below in the rule it established for the exercise by the parties of their peremptory challenges; (3) error of the court below in the admission of evidence; (4) error of the court below in refusing to give certain special instructions, numbered 2, 4, and 7, asked for by the defendant; (5) error of the court below in refusing to grant a new trial for misconduct of the jury; (6) error of the court below in refusing to grant a new trial because of insufficiency of the evidence to sustain the verdict.

These grounds for reversal we shall consider in their order.

I. The defendant claims that the court below erred in finding against him upon his plea in abatement, for the following reasons: He claims that no preliminary examination was ever had with respect to the offense charged against him; that he had never waived any such preliminary examination; that he had never been a fugitive from justice; and he makes this claim that no preliminary examination was ever had, for the sole reason that the warrant upon which he was arrested and the other papers upon which the supposed preliminary examination was had, did not state or show any offense, nor charge any offense against him. Upon the hearing of the defendant's plea in abatement, the following facts, among others, were shown: The defendant was arrested on May 21, 1883, by the sheriff of Reno county, on the warrant of the coroner of such county, which warrant reads as follows:

"STATE OF KANSAS, RENO COUNTY.--The state of Kansas to J. M. Hedrick, Sheriff of Reno County: Whereas, on the 21st day of May, 1883, notice was given me, the undersigned, A. W. McKinney, a coroner in and for said county, that the dead body of a man had been found at the N. W. 1/4, sec. 9, town 24 S., range 5 west, in said county, supposed to have died by unlawful means; thereupon I issued a summons for six citizens of said county, and directed the same to J. M. Hedrick, sheriff of said county, returnable forthwith. Summons returned at 10 o'clock.

"The following jurors appeared: A. M. Switzer, J. Q. Robertson, J. C. Moore, J. Peter Klein, George I. Wainner, Edward Dennis, who were duly sworn. The jurors having inspected the body, heard the testimony, and made all needful inquiries, returned to me their inquisition in writing under their hands, as follows:

'STATE OF KANSAS, RENO COUNTY.--An inquisition, holden at the residence of J P. Bailey, on section 9, town. 24, range 5, in said county, on the 21st day of May, 1883, before me, A. W. McKinney, coroner of said county, on the body of J. P. Bailey, there lying dead, by the jurors whose names are hereunto subscribed. The said jurors, upon their oaths, do say he came to his death by being hit upon the head with a piece of iron water-pipe in the hands of J. I. Bailey.

Given under our hands, this day of inquisition.

A. M. SWITZER. J. C. MOORE.

J. Q. ROBERTSON. GEO. I. WAINNER.

J. PETER KLEIN. EDWARD DENNIS.'

"You are therefore required to arrest the said J. I. Bailey, and bring him forthwith before George D. Barclay, at his office in Hutchinson, in said county, to answer said charge, and then and there return this writ.

"Witness my hand, in Reno county, this 21st day of May, 1883.

A. W. McKINNEY,

Coroner Reno County.

Upon this warrant a preliminary examination was had before a justice of the peace, commencing on May 22, 1883. Prior to the preliminary examination, however, the defendant moved the justice of the peace to quash the warrant, and dismiss him from custody, for the reason that said warrant did not charge any offense. The justice overruled the motion, and then proceeded with the preliminary examination, and upon such preliminary examination found and ordered as follows:

"The court finds that there are reasonable grounds for believing that the defendant, J. I. Bailey, committed the offense charged; it is therefore ordered by the court that the said defendant, J. I. Bailey, be committed to the jail of Reno county until the next regular term of the district court, to answer said charge."

Afterward the justice issued the following warrant of commitment, to wit:

"STATE OF KANSAS, RENO COUNTY.--Before Geo. D. Barclay, J. P. of Reno Township.--To the sheriff or any constable of Reno county: Whereas, one J. I. Bailey was, on the twenty-first day of May, 1883, arrested on a warrant issued by A. W. McKinney, coroner of Reno count, charging the said J. I. Bailey with the killing, feloniously, of one J. P. Bailey, in said Reno county, state of Kansas; and whereas, said J. I. Bailey, after a preliminary examination, held before the undersigned justice of the peace, it is found that said J. P. Bailey has been feloniously killed, and that said J. I. Bailey is probably the guilty party, you are therefore commanded forthwith to take & said J. I. Bailey, and commit him to the jail of Reno county, there to remain until the next term of district court, to be dealt with according to law.

"Witness my hand, at my office in said township, this 24th day of May, 1883.

GEO. D. BARCLAY, J. P."

The evidence introduced on the preliminary examination was preserved, and is contained in the record of this case; and we think it is amply sufficient to authorize the justice of the peace to find that the offense of murder in the first degree had been committed by some person, by the killing of said J. P. Bailey by means of an iron water-pipe, as charged in the information, and that there was probable cause to believe that the defendant was guilty of such offense; and therefore we think there was sufficient evidence introduced to authorize the justice of the peace to commit the defendant, as he did, to the county jail of Reno county, to abide the event of a final trial in the district court. Undoubtedly the foregoing proceedings were irregular. The facts were not set forth in exhaustive detail, nor as fully as they should have been, nor with perfect accuracy; and yet we do not think that the proceedings were so irregular for these reasons as to be utterly void. We do not think that they were so irregular that the defendant can say that he never had any preliminary examination with regard to the offense for which he was finally prosecuted. He did in fact have a preliminary examination, and therefore the claim that he did not have any preliminary examination is not true. The proceedings were simply irregular, and not void. The coroner's warrant, however, states, and the coroner's jury find, that the deceased, J. P. Bailey, "came to his death by being hit upon the head with a piece of iron water-pipe in the hands of J. I. Bailey;" and the warrant also states that the deceased was "supposed to have died by unlawful means," and orders the arrest of said J. I. Bailey. This clearly charges J. I. Bailey, the defendant, with the commission of the homicide, and also states, inferentially, that the killing was done feloniously. The justice of the peace found that the defendant committed the offense charged, and found, as his warrant shows, "that said J. P. Bailey has been feloniously killed, and that said J. I. Bailey is probably the guilty party;" and the justice of the peace also committed the defendant to the jail of Reno county for such offense.

Now the main object of a preliminary examination is, in all probability, for the purpose of having the question determined judicially whether a person who is suspected of being guilty of the commission of a criminal offense shall be held for his appearance and trial in the district court. It is to prevent the escape of guilty persons, on the one hand and to avoid the detention and imprisonment of innocent persons, on the other; and this main object of a preliminary examination is satisfied whenever a party appears before the district court for trial and subjects himself to the orders and judgment of the district court. But a preliminary examination is probably also for the purpose of giving to the defendant a reasonable notice of the nature and character of the offense charged against him; and the state should in all cases give the defendant such notice by a proffered preliminary examination, unless the defendant waives the same or is a fugitive from justice. (Crim. Code, § 69.) The question as to whether a preliminary examination has ever been had in any particular case, may be raised in various ways: (1) By a writ of habeas corpus, if the defendant has been...