State v. Bland
| Decision Date | 06 December 1913 |
| Docket Number | 18,755,18,871,18,820 |
| Parties | THE STATE OF KANSAS, Appellant, v. R. J. BLAND, CHARLES DIXON and HARRY BROWN, Appellees. THE STATE OF KANSAS, Appellee, v. R. J. BLAND, CHARLES DIXON and HARRY BROWN, Appellants. THE STATE OF KANSAS, ex rel. JOHN S. DAWSON, as Attorney-general, etc., Plaintiff, v. O. W. FAIL, as Clerk of the District Court, etc., et al., Defendants |
| Court | Kansas Supreme Court |
Decided July, 1913
Appeals from Cherokee district court; EDWARD E. SAPP, judge.
Original proceeding in mandamus. Opinion filed December 6, 1913. Dismissed.
Mandamus dismissed.
SYLLABUS BY THE COURT.
1. DISTRICT COURT--Sitting in Two Places in Same County--Form of Criminal Information. A statute provides that the district court of Cherokee county shall be held in two places, and prescribes that actions commenced in that court shall be entitled as sitting at one or the other of the places. An information filed at one of the places, and to which the defendants were recognized to appear, was entitled "State of Kansas, County of Cherokee, ss: In the District Court of said County and State," followed by the names of the parties, but did not name the place in which the information was filed and the case was tried. Held, that the omission of the name of the place in the county did not invalidate the information, nor operate to the prejudice of the defendants.
2. MISDEMEANOR--Voluntary Absence of Defendant from Trial--Conviction Valid. A defendant at liberty on a bond can not, by voluntarily leaving the court room during a part of the trial, nullify the proceedings had, nor impair the validity of a verdict rendered against him in his absence.
3. FEES--Attorney-general--Liquor Cases--Denial--Appeal. An appeal may be taken by the state from a decision refusing to allow fees to the attorney-general for convictions obtained by him in prosecutions for violations of the prohibitory liquor law.
4. PROSECUTIONS--Under Prohibitory Law--Attorney-general Entitled to Fees. The statute providing for the allowance of such fees is not repugnant to that part of section 15 of article 1 of the state constitution which provides that certain state officers shall receive compensation for their services at stated times.
5. Same--Joint Defendants--Fees Chargeable to Each Defendant on Each Count. Where several defendants are jointly tried and convicted of offenses charged in a number of counts in a single information the prosecuting attorney is entitled to the allowance of the fee provided in section 4377 of the General Statutes of 1909 for each count upon which each defendant is convicted.
6. MANDAMUS--Adequate Remedy at Law. The extraordinary remedy of mandamus can not be used where prompt and adequate relief may be had by an appeal.
John S. Dawson, attorney-general, for the state; W. P. Montgomery, of Topeka, of counsel.
C. B. Skidmore, A. L. Majors, and S. C. Westcott, all of Galena, for appellees R. J. Bland et al.
John S. Dawson, attorney-general, for the plaintiff; W. P. Montgomery, of Topeka, of counsel.
Andrew S. Wilson, and Edward E. Sapp, both of Galena; for the defendants.
R. J. Bland, Charles Dixon and Harry Brown were prosecuted for violations of the prohibitory liquor law. In the information each was charged in eleven counts with illegal sales of intoxicating liquors, and in the twelfth count each was charged with maintaining a common nuisance. Upon arraignment the defendants refused to plead, and thereupon a plea of not guilty was entered by the court as to each. The refusal to plead was based on the claim that the information was without validity because it was not entitled as the district court of Cherokee county, "sitting at Galena." The same objection was made to the introduction of testimony, but it was overruled. Upon the testimony offered Dixon was convicted on the first, second, third, fourth, fifth, sixth and twelfth counts and not guilty on five of the counts. Brown was found guilty on the same counts as was Dixon and not guilty on the remaining counts. Bland was found guilty on all of the counts except the eleventh and as to that he was found not guilty. Motions for new trials and in arrest of judgment were overruled, and the sentence of the court was that Bland should be imprisoned in the county jail for thirty days and pay a fine of $ 100 on each of the eleven counts on which he was convicted. Dixon and Brown were separately sentenced, each to be imprisoned for thirty days and pay a fine of $ 100 on each of the seven counts upon which they were convicted. In this connection the court adjudged that no attorneys' fees should be taxed as costs on the convictions, and this ruling was based upon the ground that the prosecutions had been conducted by the attorney-general and not by the county attorney, and that, in the opinion of the court, the attorney-general was not, under the law, entitled to an allowance of attorneys' fees. The question as to whether or not attorneys' fees were allowable as costs in the case was reserved by the state for determination on appeal.
It is first contended on behalf of the appellants, Bland, Dixon and Brown, that by reason of the absence of the words "sitting at Galena" from the caption of the information the validity of the information was destroyed. The information was entitled, "State of Kansas, County of Cherokee, ss: In the District Court of said County and State," followed by the names of the parties. In the act providing for the holding of terms of the district court in Cherokee county it is enacted that terms of court shall be held at the city of Columbus on the first Monday of January, May and October, and at Galena on the first Monday of March and September and the second Wednesday of November, in each year. It is further provided that the clerk of the court shall maintain offices in Columbus and Galena, and that all actions commenced in the court shall be entitled, "sitting at Columbus," or "sitting at Galena." (Laws 1901, ch. 156, §§ 1, 2.) In the criminal code it is provided that the information must contain the title of the action, specifying the name of the court to which it is presented. When the information was attacked application was made to the court by the state to amend the information by adding the words "sitting at Galena," and for the mere matter of formality an amendment might have been allowed, but evidently the court concluded, and rightly so, that the omission was not a material one. The information had been filed at Galena and the defendants had been recognized to appear there. They were brought to trial in Galena in the district court of Cherokee county, where the case was legally instituted. While terms of court are to be held at two places in Cherokee county it is the same court which is held in both places. There is but one district court in the county, and cases filed at one place may be assigned and transferred for hearing and trial at the other place. The provision that actions filed in the different places shall be entitled as sitting at that place was directory only and a mere matter of convenience. It was essential to name the county where the offense was committed, and that was given in the caption and explicitly referred to in the body of the information. In a civil case it was contended that the omission of the name of the court and the county in the caption of a petition was fatal to the jurisdiction of the court, and for the reason that is urged here, that is, that the statute required it to be done, but it was ruled that the omission did not affect the jurisdiction and that no prejudice could have resulted from it. (Hastie v. Burrage, 69 Kan. 560, 77 P. 268.) Here the county and court were stated, and it is certain that the omission of the place in the county in which the information was filed did not result to the prejudice of the defendants. Aside from that, the criminal code provides that an information shall not be quashed "For a mistake in the name of the court or county in the title thereof," or "For any other defect or imperfection which does not tend to the prejudice of the substantial rights of the defendant upon the merits."
A second contention is that the absence of the defendants from a part of the trial defeats the judgments. It appears the defendants were present when the trial began, as well as the counsel who were acting for them. An objection to the admission of any evidence was made in their behalf, based on the defect in the caption of the information. It was argued at length, and when it was overruled counsel withdrew from the case and one of the defendants absented himself until the verdict was returned. The other two defendants were present throughout the trial and were given an opportunity to cross-examine the witnesses who testified in behalf of the state and also to offer testimony in their own behalf, but they did not avail themselves of the offers. Two of the defendants were present when the verdict was returned, and bonds in an increased amount for the appearance of all were given by all of them. Counsel appeared and presented motions for a new trial and in arrest of judgment in behalf of all the defendants and all were present in court when these were overruled and the judgments of the court were pronounced. It is the right of the defendant in a criminal case to be present at all stages of the trial, but it has been held that his personal presence is not absolutely required during a trial for a misdemeanor. (The State v. Baxter, 41 Kan. 516, 21, 21 P. 650, P. 650.) His presence is more important in a case of felony, and a trial of one charged with a felony during a compulsory absence of a defendant would be...
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