State v. Brooks
| Decision Date | 09 July 1885 |
| Citation | 7 P. 591,33 Kan. 708 |
| Parties | THE STATE OF KANSAS v. HIRAM BROOKS |
| Court | Kansas Supreme Court |
Appeal from Allen District Court.
PROSECUTION for a violation of the prohibitory liquor law. From a conviction and sentence at the January Term, 1885, the defendant Brooks appeals. The opinion states the material facts.
Judgment reversed and cause remanded for a new trial.
G. P Smith, for appellant.
S. B Bradford, attorney general, for The State; Edwin A. Austin of counsel.
OPINION
This was a criminal prosecution under the prohibitory liquor law of 1881. The information was filed in the district court of Allen county, on October 15, 1884, by the county attorney, charging the defendant, Hiram Brooks, in four separate counts, with four separate violations of said law. Each offense was charged as having been committed on the day of 1884; and while it is charged that the defendant sold intoxicating liquors in violation of law, yet the kind of intoxicating liquors sold is not stated, nor is the name of the person to whom the liquors were sold given. The information was sworn to positively by J. C. Gilbert, a private citizen, and the county attorney did not verify the same by his own oath. The defendant made several motions, among which were motions to quash the information and to have himself discharged from arrest, which motions were overruled by the court, and the defendant excepted. The defendant was duly arraigned, but refused to plead, and the plea of "not guilty" was entered for him. A trial was had before the court and a jury. Evidence was introduced tending to show that the defendant had sold intoxicating liquors to various persons at various times in violation of law. The state then elected to rely for a conviction under the first count of the information, upon a sale of whisky made by the defendant to Oscar Dwindle, a sale with reference to which the prosecuting witness, J. C. Gilbert, had no knowledge or notice, and the prosecution also made elections with reference to the other counts. The court instructed the jury, and the defendant duly excepted to the instructions as given. The jury found the defendant guilty under the first count of the information, and not guilty under the other counts. The defendant moved for a new trial upon various grounds, which motion was overruled by the court, and the defendant excepted. The court then sentenced the defendant to be confined in the county jail for thirty days, and to "pay the costs of this proceeding," and that he stand committed to the county jail until the costs were paid; to which sentence and judgment the defendant excepted, and now appeals to this court.
We think the information is sufficient. It states a cause of action in each count against the defendant, and although it is claimed to be an information, and it is in fact an information, yet in essence and in substance it is also a complaint within the requirements of the prohibitory liquor law. The offenses charged therein are misdemeanors in which the punishment for each offense cannot exceed a fine of $ 500, or imprisonment ninety days; and it has several times been held by this court that the district court has original and concurrent jurisdiction with justices of the peace to hear and determine cases of misdemeanor in which the punishment for each offense cannot exceed a fine of $ 500 and imprisonment one year. (The State v. Watson, 30 Kan. 281, 1 P. 770; Comp. Laws 1879, ch. 83, § 1.) In justices' courts the original pleading may be properly called a complaint, but in the district court it may properly be called an information or indictment; for in the district court criminal prosecutions can be conducted or carried on only upon information filed by the public prosecutor, or upon indictments found by the grand jury. (Crim. Code in general, and articles 6 and 7 especially; see also §§ 21 and 22 of the Prohibitory Act.) The information sets forth facts sufficient to constitute four separate offenses, and all the facts constituting the offenses are set forth in detail and in full, except as heretofore stated; and the information is duly verified by the positive oath of J. C. Gilbert, and is sufficiently verified within the decision made by this court in the case of The State v. Gleason, 32 Kan. 245, 4 P. 363.
Under such circumstances, we do not think that it was necessary for the county attorney to also verify the information; nor do we think that the failure of the county attorney to state the day and the month when the offenses were committed renders the information insufficient; for it is never necessary in criminal prosecutions to prove the allegations merely setting forth the day or the month when the offenses are alleged to have been committed. All that is necessary to be proved in any case like this is, that the particular offense charged was committed within such a time that the prosecution therefor is not barred by the statute of limitations; or, in other words, all that is necessary to be proved is that the offense was committed within two years next preceding the time of the filing of the information.
The information in the present case stated that the offenses were committed in the year 1884, and, as before stated, this information was filed on October 15, 1884. We think the information was sufficient in this particular. Authorities may be found, however, holding that it is necessary in charging criminal offenses to state a particular day and the particular month when the offense was committed; but as all the authorities agree that such allegations need not be proved, and that they answer no material purpose, it would seem that such allegations are wholly unnecessary and immaterial. Neither is it necessary in this state to state the kind of liquor sold, or the name of the person to whom sold; for the statute expressly and specifically provides that these things need not be stated. (Prohib. Liquor Law, §§ 21.) Of course the information in this case might have been made better than it was, and we think it ought to have been made better; but still we think it was and is sufficient. Taking the facts therein stated and the positive oath of Gilbert, it showed probable cause to believe that the defendant was guilty of the offenses charged against him, and authorized the issue of a warrant for his arrest; and it was not necessary for the clerk or any other person to make a finding that there was such probable cause. The information alone, verified as it was by the positive oath of Gilbert, was sufficient to show probable cause, and to authorize the clerk to issue the warrant. (Crim. Code, § 126.) And when the defendant was arrested and arraigned for trial, we think the information was sufficient to authorize the court to put him upon his trial.
We now come to a more serious question: Can the defendant be convicted of an offense of which the complaining witness, at the time when he verified the...
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...to state in information name of purchaser, State v. Schweiter, 27 Kan. 499; State v. Forner, 32 Kan. 281, 4 P. 357; State v. Brooks, 33 Kan. 708, 7 P. 591; unnecessary in information to state kind of liquor, State v. Sterns, 28 Kan. 154; State v. Brooks, 33 Kan. 708, 7 P. 591; information i......
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