State v. Cook

• Decision Date: 01 January 1883
• Citation: 30 Kan. 82,1 P. 32
• Parties: THE STATE OF KANSAS v. LAWSON COOK
• Court: Kansas Supreme Court

1 P. 32

30 Kan. 82

THE STATE OF KANSAS v. LAWSON COOK

Supreme Court of Kansas

January 1, 1883

Appeal from Wyandotte District Court.

AT the July Term, 1882, of the district court, Cook was sentenced to pay a fine of $ 100 and costs, for violating chapter 128 Laws of 1881. From this judgment he appeals. The opinion contains a sufficient statement of the facts.

Judgment reversed and cause remanded.

Buchan & Gray, and Hale & Miller, for appellant.

W. A Johnston, attorney general, for The State.

HORTON C. J. All the Justices concurring.

OPINION

HORTON, C. J.:

The defendant, Lawson Cook, was charged with having sold intoxicating liquors without taking out and having a permit as provided in the prohibitory act of 1881. He was convicted of the offense alleged against him, and adjudged to pay a fine of $ 100 and the costs. He brings the case here by appeal.

The first assignment of error is in allowing the name of the county attorney, one Gibson, to be indorsed upon the information after the commencement of the trial, and to the admission of said Gibson as a witness on the part of the state. When the defendant objected to the request for the name of this witness to be indorsed upon the information, the witness stated to the court that he had not expected to be used as a witness at the time of filing the information; that up to a short time before the commencement of the trial he had supposed he could prove the facts within his knowledge by R. E. Cable, whose name was indorsed as a witness upon the information, but he had discovered that R. E. Cable had not been subpoenaed, and was then outside of the jurisdiction of the court. The court thereupon allowed the name of Gibson to be indorsed upon the information, and allowed him to testify on the part of the state. It was within the discretion of the court to permit the name of the witness to be indorsed on the information, and to allow him to testify over the defendant's objection. Sec. 67 of the criminal code reads:

"Informations may be filed during term-time, or within twenty days preceding the term, in any court having jurisdiction of the offense specified therein (except in cases of fugitives from justice, which may be filed with the clerk in vacation), by the prosecuting attorney of the proper county as informant. He shall subscribe his name thereto, and indorse thereon the names of the witnesses known to him at the time of filing the same. He shall also indorse thereon the names of such other witnesses as may afterward become known to him, at such times before the trial as the court may by rule or otherwise prescribe. All informations shall be verified by the oath of the prosecuting attorney, complainant, or some other person."

In construing the provisions of this statute, it was said in The State v. Dickson, 6 Kan. 209:

"But as we understand it, there is nothing in them or any other statute which would have the effect of prohibiting a witness from testifying whose name had become known to the prosecution after the commencement of the trial, and without his name being indorsed upon the information at all. Nor do we think that such a prohibition, if it did exist, would as a rule be calculated to promote justice. Cases, as is well known to every practitioner at the bar, often occur where, during the progress of a trial, a necessity arises for the introduction of certain kinds of testimony which could not have been known or anticipated on the part of the prosecution before the commencement of the trial; as, for example, if it should be within the power of the prosecution, and justice should require the impeachment of a witness sworn on the defense, and such witness had been hitherto entirely unknown to the prosecuting attorney. In such a case the universal practice has been to call and examine witnesses without regard to their having been previously named and summoned, or even thought of.

In The State v. Medlicott, 9 Kan. 257, this decision was approved, and it was held not error in a criminal prosecution to permit a witness on the part of the state whose name has become known to the prosecutor after the commencement of the trial, to testify, even though the name of the witness has not been indorsed upon the information. While the names of the witnesses upon the information will inform a defendant by whom it is expected the charge therein set forth is to be sustained, and thus enable him to some extent to prepare for his defense, and while it is the duty of the prosecuting attorney to indorse upon such information the names of the witnesses known to him at the time of the filing of the same and expected to be used upon the trial, yet the court in the furtherance of justice, within its discretion, ought to have the power, and in our opinion does have the power, to permit the name of any witness to be indorsed upon the information at any time, even after the trial has actually commenced. Said $ 67 is not a condition to the qualification of a witness. As a general rule the court should allow the names of the witnesses of the state to be indorsed upon the information after the commencement of the trial, if it be important so to do;...