State v. Carey
| Decision Date | 09 November 1895 |
| Docket Number | 10383 |
| Citation | 42 P. 371,56 Kan. 84 |
| Parties | THE STATE OF KANSAS v. CHARLES CAREY |
| Court | Kansas Supreme Court |
Appeal from Wyandotte District Court.
ON May 1, 1895, a complaint under oath, in positive form, was filed before George M. Hughes, a justice of the peace of Wyandotte county, charging the defendant with murder in the first degree by shooting with a pistol and killing James Clune, on April 30, 1895, at and within said county. A warrant was issued upon said complaint, and the defendant was arrested and brought before said justice of the peace. Upon such arrest the defendant made objection to the validity of the warrant, on the ground that Thomas Cahill, who made oath to the complaint, had no knowledge of the facts stated therein save such as were based upon rumor, hearsay, information received from others, and belief; that he did not produce any witnesses before the justice who knew the facts stated in the complaint; that he was not a witness who could give any competent testimony upon the trial; that, notwithstanding he verified said complaint as true, yet having no knowledge except as before stated, the complaint did not constitute sufficient probable cause to justify the issue of said warrant, nor the arrest of the defendant, nor for any other purpose, and that all the proceedings based thereon were and are without jurisdiction. Presumably, these objections were overruled, although the record does not so state, but an information against the defendant was filed in the district court on May 11, 1895. On June 3, 1895, the defendant filed a plea in abatement on the foregoing grounds, and he demanded a trial by jury of the truth of the facts contained in the plea. The state answered the plea by a general denial, and the defendant again demanded a trial of the issue by jury which was overruled. The defendant then offered evidence in support of his plea, but the state objecting, the testimony was excluded and the plea overruled. On the next day the defendant was arraigned but refused to plead, on the ground that no copy of the information duly certified by the clerk under his hand and the seal of the court had been served upon him, and he presented in evidence the copy served, which appeared to be full, true, and correct, and the same was so certified by the clerk on May 28, the day of its service, but no seal was attached to the certificate of the clerk. The objection was overruled, and the defendant required to plead but he stood mute, and the court directed the entry for him of a plea of not guilty. On the trial the defendant was found guilty of murder in the second degree, and was, on July 5, 1895, sentenced to imprisonment at hard labor in the penitentiary for a term of 15 years. Other facts appear in the opinion.
Judgment affirmed.
F. E. and J. A. Smith, for appellant.
F. B. Dawes, attorney general, Samuel C. Miller, county attorney, and I. F. Bradley, for The State.
OPINION
I. The plea in abatement is urged on the authority of The State v. Gleason, 32 Kan. 245, 4 P. 363; but in that case the prosecution was commenced in the district court, and the information was verified by the county attorney only upon information and belief. Section 15 of the bill of rights provides that "no warrant shall issue but on probable cause supported by oath or affirmation," and this court held that the verification of the information was neither an oath nor an affirmation; and this position is supported by City of Atchison v. Bartholow, 4 Kan. 124, 139, 140; and Thompson v. Higginbotham, 18 id. 42, 44. In the Gleason case, therefore, no legal foundation had been laid for issuing the warrant, and, its validity having been challenged at the first opportunity, this court held that the defendant ought to have been discharged until the information should be verified, and a new warrant issued thereon. In the case at bar the complaint was regular in form, and was supported by the oath of Thomas Cahill, and this conferred jurisdiction, and authorized the justice to issue the warrant without the calling in of other witnesses, as authorized by section 36 of the code of criminal procedure. (P 5099, Gen. Stat. 1889.) Counsel for defendant cite no authority in support of their contention, that on a plea in abatement the question can be tried either with or without a jury as to the extent of the knowledge of the person who makes oath to the complaint, and we know of none. It is therefore quite immaterial in this case whether, upon a plea in abatement raising an issue of fact, the trial of such issue should be by the court or by a jury. The complaint was in due and legal form, as was the warrant issued upon it, and we must hold that the arrest of the defendant was fully authorized by law, and that the court committed no error in refusing to hear evidence in support of the plea.
II. It was the duty of the clerk of the...
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...But a mere technical error with no ill effect on the substantial rights of the defendant could be disregarded. See State v. Carey , 56 Kan. 84, 87–88, 42 P. 371 (1895) (failure to affix seal immaterial, not prejudicial).State v. Hinkle , 27 Kan. 308 (1882), is illustrative of 19th-century a......
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