State v. Durein

Decision Date08 November 1902
Docket Number13,105
Citation65 Kan. 700,70 P. 601
CourtKansas Supreme Court

Decided July, 1902.

Appeal from Shawnee district court; Z. T. HAZEN, judge.

Judgment reversed.



1. CRIMINAL PROCEDURE -- Appeal in Misdemeanor Case. The defendant, in a misdemeanor case appealed from a justice of the peace, cannot be arraigned and required to plead, nor can the jury be impaneled and sworn and the trial commenced until the complaint sent up by the justice has been certified by him; and a certification made after the trial has begun and over the defendant's objection will not have relation back as of the time it should have been made.

2. CRIMINAL PROCEDURE -- Certificate to Complaint by Justice. A justice of the peace, whose duty is to certify and send to the district court, upon appeal, the complaint on which a defendant has been tried and convicted before him, cannot make such certification outside the township within and for which he holds his office.

3. CRIMINAL PROCEDURE -- Case Followed. The case of The State v. Medley, 54 Kan. 627, 39 P. 227, followed.

A. A. Godard, attorney-general, J. S. West, and A. L. Redden, for The State.

G. C. Clemens, and Otis E. Hungate, for appellant.

DOSTER, C. J. All the Justices concurring.



This is an appeal from a conviction of the offense of violating the prohibitory liquor law. The appellant was first found guilty before a justice of the peace, from whose judgment he appealed to the district court. The justice failed to certify the complaint before sending up the appeal papers. The appellant objected to being put on his trial for that reason. The state asked for permission to the justice to certify the complaint. Permission was granted, but before the certification was made, and probably in contemplation of its being made, the appellant's objection to going to trial was overruled. He was thereupon arraigned and required to plead, but he stood mute, and a plea of not guilty was entered for him. The jury were then impaneled and sworn and a witness for the state called and sworn and his examination commenced. To all these proceedings the appellant objected, because there did not appear to be any complaint on which trial could be had. The court thereupon, at the state's request, again gave permission to the justice, who was present, to certify the complaint. The certification was then made and the trial proceeded with, over the appellant's renewed objection. This was error. In The State v. Anderson, 34 Kan. 116, 8 P. 275, it was ruled:

"Where a defendant convicted of a misdemeanor before a justice of the peace appeals to the district court, the statute requires the justice to certify up the original complaint to the district court; and if the complaint is transmitted without such certification, the district court in its discretion may permit the defect to be remedied by amendment; but it is error to compel the defendant to go to trial against his objection upon a complaint found among the papers of the case in the district court which has not been certified to nor authenticated in any manner."

The trial of a criminal case begins at least as early as the swearing of the jury. That, with all the proceedings held after that, is trial, and we may not say, in view of the statute and the above decision construing it, that the requirement to certify the complaint before trial is complied with by giving permission before trial to certify it, but not requiring its actual certification until after the trial has been commenced. Until a certified complaint exists, there is not, in legal contemplation, any complaint at all, and certain it is that no part of the trial of a criminal case can be had until there is a written charge against the defendant to which he can be called on to respond. In criminal practice there is no rule, statutory or otherwise which will give the filing or certification during the trial of a complaint, which contains the whole charge against the defendant, relation back as of the time it should have...

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8 cases
  • State v. Lamb
    • United States
    • Kansas Supreme Court
    • May 6, 1972
    ...may, within his own township, issue criminal process to be served in any part of the state . . ..' (p. 598, 14 P. p. 232.) State v. Durein, 65 Kan. 700, 703, 70 P. 601, is to the same Under K.S.A. 62-1830, a search warrant issued by a magistrate within the confines of his jurisdiction, can ......
  • Markham v. Cornell
    • United States
    • Kansas Supreme Court
    • January 28, 1933
    ... ... official acts when beyond limits of subdivision ... Temporary ... absence of Governor from state does not constitute ... "disability" permitting Lieutenant Governor to ... assume powers and duties of Governor (Const. art. 1, § 11) ... the peace outside his township. See, also, A., T. & S. F ... R. Co. v. Rice, 36 Kan. 593, 14 P. 229; State v ... Durein, 65 Kan. 700, 70 P. 601. The same rule has been ... followed in other jurisdictions. See Eichoff v ... Caldwell, 51 Okl. 217, 151 P. 860, ... ...
  • State v. Belisle
    • United States
    • Kansas Supreme Court
    • January 24, 1948
    ...State v. Anderson, 34 Kan. 116, 8 P. 275; State v. English, 34 Kan. 629, 9 P. 761; State v. Allison, 44 Kan. 423, 24 P. 964; State v. Durein, 65 Kan. 700, 70 P. 601; v. Plomondon, 75 Kan. 853, 90 P. 254; City of Salina v. Laughlin, 106 Kan. 275, 187 P. 676; State v. Madden, 119 Kan. 263, 23......
  • State v. Brown, 45546
    • United States
    • Kansas Supreme Court
    • June 13, 1970 certified on or before the commencement of a new term of the district court. Defendant relies heavily on the case of State v. Durein, 65 Kan. 700, 70 P. 601, to support her position. In Durein a district court conviction, after an appeal from a justice of the peace, was reversed for two ......
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