State v. Dreiling

Decision Date09 July 1932
Docket Number30665.
Citation136 Kan. 78,12 P.2d 735
PartiesSTATE ex rel. MALONE, Co. Atty., v. DREILING, Justice of the Peace.
CourtKansas Supreme Court

Syllabus by the Court.

Constable of township to whom warrant of arrest is delivered held not authorized to make arrest outside county, except in fresh pursuit (Rev. St. 1923, 62--603, 62-605, 80-- 701-, 80-702).

A constable to whom a warrant of arrest has been delivered for service may not go beyond the confines of his county to make the arrest, except in what amounts to fresh pursuit.

Appeal from District Court, Ellis County; Herman Long, judge.

Mandamus proceeding by the State, on the relation of Ernest J. Malone as County Attorney, etc., against B. M. Dreiling, as Justice of the Peace, etc. From a Judgment denying the writ of mandamus, the relator appeals.

Reversed and cause remanded in accordance with opinion.

Roland Boynton, Atty. Gen., R. O. Mason, Asst. Atty. Gen., and Ernest J. Malone, Co. Atty., of Hays, for appellant.

B. W Brooke and Delmas Lee Haney, both of Hays, for appellee.


The action was one of mandamus, to compel a justice of the peace to deliver a warrant for the arrest of a person charged with felony to the sheriff of the county instead of to a constable of the township. The writ was denied, and the state appeals.

Complaint was made to the defendant, a justice of the peace of Hays township, in Ellis county, that one Roy Jawks had committed a described felony. The justice issued a warrant for the arrest of Jawks, and delivered it to a constable of the township. Jawks was a resident of Graham county. The constable was about to go over to Graham county and arrest Jawks, when the action was brought by the county attorney in the name of the state to obtain a declaratory judgment determining the question whether a constable is authorized to serve a warrant of arrest outside of his county.

The statute relating to constables contains the following provisions:

"All constables shall be ministerial officers in justices' courts in their respective counties, and civil and criminal process may be executed by them throughout the county, under the restrictions and provisions of the law." R. S. 80--701.

"In serving all process, either civil or criminal, and in doing his duties generally, when not otherwise restricted by law, the authority of a constable shall extend throughout the county in which he may be appointed; and in executing and serving process issued by a justice of the peace he shall have and exercise the same authority and powers over goods and chattels and the persons of parties as is granted by law to the sheriff or coroner, under like process issued from the courts of record." R. S. 80--702.

The Code of Criminal Procedure prescribes the form of a warrant:

"Such warrant may be substantially in the following form, varying the terms to suit the case:
"The State of Kansas, -- County. The state of Kansas to any sheriff or constable of the state of Kansas: It appearing that there are reasonable grounds for believing that A. B. has committed the offense of --, in the county of --, you are

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3 cases
  • Van Horn v. State
    • United States
    • Wyoming Supreme Court
    • December 14, 1990
    ...86 (1961); State v. Carson, 374 So.2d 621 (Fla.App.1979); Drake v. Keeling, 230 Iowa 1038, 299 N.W. 919 (1941); State ex rel. Malone v. Dreiling, 136 Kan. 78, 12 P.2d 735 (1932); State v. Harnum, 143 Me. 133, 56 A.2d 449 (1947); and Irwin v. State, Department of Motor Vehicles, 10 Wash.App.......
  • Arnold v. Charnes
    • United States
    • Colorado Court of Appeals
    • September 21, 1978
    ...there must be a pursuit. The word "pursuit" is ordinarily used in the sense of "chasing or following to overtake." State v. Dreiling, 136 Kan. 78, 12 P.2d 735; Webster's Third New International Dictionary. Usually, where the extraterritorial arrest was held to be valid under the fresh pursu......
  • State ex rel. MALONE, Co. v. Dreiling
    • United States
    • Kansas Supreme Court
    • September 8, 1932
    ...Appeal from District Court, Ellis County; Herman Long, Judge. On petition for rehearing. Petition denied. For former opinion, see 136 Kan. 78, 12 P.2d 735. Boynton, Atty. Gen., R. O. Mason, Asst. Atty. Gen., and Ernest J. Malone, Co. Atty., of Hays, for appellant. B. W. Brooke and Edward E.......

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