State v. Crilly

• Decision Date: 07 July 1904
• Docket Number: 13,970
• Citation: 77 P. 701,69 Kan. 802
• Parties: THE STATE OF KANSAS v. JOSEPH CRILLY
• Court: Kansas Supreme Court

77 P. 701

69 Kan. 802

THE STATE OF KANSAS v. JOSEPH CRILLY

No. 13,970

Supreme Court of Kansas

July 7, 1904

Decided July, 1904.

Appeal from Cherokee district court; W. B. GLASSE, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. CRIMINAL PROCEDURE -- Presumption that Indictment was Returned in Open Court. Where an indictment recites that it is presented by the grand jury, and it is properly signed by the prosecuting attorney, indorsed "a true bill" by the foreman, and filed by the clerk, it will be presumed in the absence of a showing to the contrary, that it was duly returned in open court, notwithstanding no entry of the fact was made upon the minutes or journal of the court.

2. CRIMINAL PROCEDURE -- Assistant Attorney-general is Authorized to Sign Indictment. An assistant attorney-general, appointed under the provisions of section 2476 of the General Statutes of 1901, has authority to sign an indictment charging an unlawful sale of intoxicating liquor, and such signature will be as effective as that of the county attorney.

3. CRIMINAL PROCEDURE -- Denial of Change of Venue Upheld. The denial of a motion for a change of venue will not be held erroneous merely because the judge before the trial, in addressing the defendant and others charged with the same offense, warned them that in the event of their conviction he would take measures to prevent the evasion of the effect of a sentence, and in doing so used language indicating a belief in their guilt.

4. CRIMINAL PROCEDURE -- Failure to Have Bailiff Sworn Not a Ground for New Trial. A new trial will not be granted in a criminal action on account of the failure to have the bailiff sworn before his taking charge of the jury, where it appears that the defendant's attorney was cognizant of the omission and made no objection at the time, and that the bailiff properly performed the duties that would have been imposed by the statutory oath.

5. TERMS OF COURT -- Adjournment in Cherokee District Approved. Where the statute provides that the district court of a county shall hold terms at different places within the county and that cases shall be tried at the places where they are respectively begun, an adjournment of the regular term of court at one place may be had to a day later than the commencement of a regular term of court at the other.

C. C. Coleman, attorney-general, and C. D. Ashley, for The State.

C. A. McNeill, and Jes. F. Wolfe, for appellant.

MASON J. All the Justices concurring.

OPINION

MASON, J.:

Joseph Crilly appeals from a conviction in the district court of Cherokee county upon an indictment charging violations of the prohibitory liquor law. The facts, so far as need be stated, appear in connection with the discussion of the several assignments of error.

It is contended by appellant that there is nothing in the record showing that the indictment was returned by the grand jury in open court, and that the judgment should be reversed on this account. Such an omission has often been held fatal to the prosecution (10 Encyc. Pl. & Pr. 410), but it is said that "an indictment properly indorsed 'A true bill' and filed by the clerk sufficiently appears to have been returned into court by the grand jury" (id. 411, note 2). Here the transcript does not show that any entry was made upon the minutes or journal of the court of the fact of the return of the indictment, but does include a copy of the indictment showing that it was indorsed by the foreman "A true bill," and by the clerk, "Presented in presence of grand jury, and filed this 13 day of Oct., 1903." Within the authority and reason of the cases cited in the note referred to, we think the record affords sufficient evidence of the proper return of the indictment.

"The indictment itself being a part of the record proper and always on file, certainly when it is authenticated, as in this case, by the genuine signatures and indorsements of the prosecuting attorney, foreman of the grand jury, and the circuit clerk, there can be no question in our opinion but that the prima facie presumption is that it was lodged in that court in the manner and by the means prescribed by law." (State v. Lord, 118 Mo. 1, 23 S.W. 764.)

"The objection that the recital in the indictment, that 'the jurors, upon their oath, present,' etc., does not sufficiently show that it was presented by the jury in open court, cannot be sustained. The presumption is that it was properly presented, as it is indorsed as a true bill and signed by the foreman." (State v. Weaver, 104 N.C. 758, 10 S.E. 486.)

"As it appears that an indictment against defendant was found November 1, and this indictment appears to have been filed on that day, unless the ordinary presumption in favor of the proceedings of courts is inapplicable here, it would be presumed that it was duly presented; and we see no reason why this is an exception to the ordinary rule. . . . When, therefore, the record of the proceedings of the term at which the indictment was found does not show that it was presented in court, as provided by law, we think it should be presumed that the law in that respect was complied with, if, as in this case, the indictment appears to have been found and properly filed." (State of Minnesota v. Beebe, 17 Minn. 241, 245, Gil. 218.)

"When an indictment has been so returned, it is the duty of the clerk to record the facts upon the journal of the court. Such recitals upon the record are conclusive as to what was done in the premises; but, if an indictment was in fact returned into court, as required by law, the omission of the clerk to record the facts would not invalidate the work of the grand jury, nor defeat the jurisdiction of the court. The facts that the indictment was on file in the clerk's office, and duly recorded in the indictment record, furnish sufficient memorandum upon which the court on proper application, and in the absence of a showing to the contrary, could order a nunc pro tunc entry supplying the omission in the record." (Shivers v. Territory, 13 Okla. 466, 74 P. 899.)

The question was raised in the district court by a motion to quash the indictment for the reason that it "was not presented by the foreman of the grand jury, in their presence, to the court, as required by law." This motion was, in effect, a plea in abatement, and required to be supported by evidence. (Gen. Stat. 1901, § 5604.) None having been offered, the presumption arising from the indorsement and filing was not overcome, and the motion was properly denied.

The indictment was signed, "C. D. Ashley, assistant attorney-general for Cherokee county, Kansas." It is objected by the appellant that the only provision of the law for assistants to the attorney-general is found in section 2476 of the General Statutes of 1901; that an officer appointed under that statute has no authority to sign an indictment; and that, as the indictment was not signed by the county attorney, the court acquired no jurisdiction to try the defendant. The part of that section here involved reads:

"And whenever the county attorney shall be unable or shall neglect or refuse to enforce the provisions of this act in his county, or for any reason whatever the provisions of this act (the prohibitory liquor law) shall not be enforced in any county, it shall be the duty of the attorney-general to enforce the same in such county, and for that purpose he may appoint as many assistants as he shall see fit, and he and his assistants shall be authorized to sign, verify and file all such complaints, informations, petitions and papers as the county attorney is authorized to sign, verify, or file, and to do and perform any act that the county attorney might lawfully do or perform."

It is obvious that if the language quoted is to be construed literally abundant authority is conferred for the signing of an indictment by the assistant attorney-general, since he is, in terms, empowered to "sign . . . all such . . . papers as the county attorney is authorized to sign, . . . and to do . . . any act that the county attorney might lawfully do." But it is argued that these words of general import are limited by the special terms by which they are preceded, and give authority only for the performance of other acts of the same general nature as those already expressly enumerated. Granting that this is true, the appellant's case is not helped. The signing of an indictment is an act of the same general character as the signing of an information. An indictment, like an information, is the first pleading in a criminal action. The signature to each by the prosecuting officer serves the same purpose, and authority to sign other papers of the same general character as an information, and to do other acts of like nature, includes authority to sign an indictment.

It is further urged that, from the context, it is apparent that no authority was intended to be granted by the language quoted to the appointee of the attorney-general to act in the place of the county attorney in any matter other than the prosecution of offenders against the law forbidding the sale of intoxicating liquors (which may also be conceded), and that consequently it has no application to such proceedings as the present one, because a county attorney...