State v. Finch

Decision Date05 October 1929
Docket Number28,526
Citation128 Kan. 665,280 P. 910
PartiesTHE STATE OF KANSAS, Appellee, v. GALEN FINCH, Appellant
CourtKansas Supreme Court

Decided July, 1929.

Appeal from Shawnee district court, division No. 1; GEORGE A. KLINE judge.

Judgment reversed and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

1. ATTORNEY-GENERAL--Powers and Duties. The attorney-general is the state's chief law officer, subject only to direction of the governor or either branch of the legislature.

2. SAME -- Disposition of State's Litigation. Ordinarily the attorney-general, both under the common law and by statute, is empowered to make any disposition of the state's litigation which he deems for its best interest.

3. SAME--Powers and Duties Under Intoxicating Liquor Law. The framework and plan of the Kansas intoxicating liquor law contemplates a central law-enforcement head. That head is the attorney-general, who has authority to enforce its provisions in any county in the state.

4. SAME--Authority to Dismiss. Where the attorney-general appears in a legal prosecution he is entitled to have full charge thereof, and ordinarily the case should be dismissed if he so directs.

5. SAME--Power to Grant Immunity from Prosecution. F. informed the attorney-general of the illegal operation of an alcoholic still and was promised immunity from prosecution. Information of the still's operation was conveyed to the sheriff and county attorney, as a result of which B. was arrested and pleaded guilty, but in so doing implicated F., claiming F. was a partner in operation of the still. F. was prosecuted by the county attorney over objection of the attorney-general, who moved to dismiss the action. Held, it was within the sound discretion of the attorney-general whether he would grant immunity to F., upon whose information B. was convicted, and that under the circumstances related in the opinion the prosecution against F. should have been dismissed upon motion of the attorney-general.

William A. Smith, attorney-general, Lester Goodell and Paul Harvey, both of Topeka, for the appellant.

J. G. Logan, county attorney, and Paul H. Heinz, of Topeka, for the appellee.

Hopkins J. Harvey, J., not sitting.

OPINION

HOPKINS, J.:

This controversy involves a consideration of the respective duties and powers of the attorney-general and county attorney--the question whether the attorney-general may control a liquor prosecution without the concurrence of, or in opposition to, the county attorney. The defendant imparted information to the attorney-general concerning a violation of the prohibitory liquor law. The information was conveyed to the county attorney, who caused the arrest of one Jerry Brown, who pleaded guilty, and in so doing implicated the defendant, against whom the county attorney began this prosecution. The attorney-general appeared and filed a motion to dismiss. The motion was overruled, and in spite of the efforts of the attorney-general to stop the prosecution the case proceeded to trial at the instance of the county attorney. The defendant was convicted, and appeals.

The facts were substantially these: About ten days before his arrest in this action Galen Finch visited and conversed with the attorney-general. The substance of Finch's conversation was that he knew of a still in operation or about to be operated in Topeka, by Brown. Finch stated that he would advise the attorney-general when liquor was to be run from the still. About 5 o'clock p. m. on January 23, 1928, Finch came again to the office of the attorney-general and informed him that the still was in operation. The attorney-general tried to reach first the sheriff and then the county attorney, but was unsuccessful. He then called the federal prohibition director, gave him the name and address and asked him to get in touch with local officers and endeavor to make a raid. The prohibition director got in touch with the sheriff. A deputy sheriff conducted a raid that evening at the place suggested by Finch, arresting Brown and seizing the still. Members of the sheriff's force informed Brown that Finch "had turned him in." When that information was given Brown he told the officers that Finch was in partnership with him. Finch was arrested later the same evening.

It would serve no useful purpose to detail the evidence. (See State v. Rose, 124 Kan. 37, 257 P. 731.) It is sufficient to say that the information which led to the successful prosecution of Brown was furnished by Finch. It was transmitted by an unbroken chain to the prosecuting officers of Shawnee county. There is no claim of any independent source of information, and it is admitted that the attorney-general told Finch he would be immune from prosecution for the exact offense for which he is now being prosecuted. No formal inquisition was held by the attorney-general, but he agreed that Finch would be immune from prosecution. Such understandings are common with prosecuting officers in cases where conviction of one defendant can be accomplished only through information obtained from an accomplice. It is not necessary to consider whether such an agreement would be binding if the prosecutor later chose to violate it. The attorney-general did not repudiate his understanding with Finch, but used every effort to carry it out.

The legal effect of these circumstances involves a consideration of the respective powers and duties of the attorney-general and county attorney. It is not contemplated by our constitution and statutes that the attorney-general shall appear in every prosecution for crime, though he does frequently appear in the district court. The statute provides that the attorney-general shall consult with and advise county attorneys, when requested by them, in all matters pertaining to their official duties. (R. S. 75-704.) Adequate enforcement of the law involves coordinated action upon the part of these officials as well as all state and local executive officials. In our scheme of government the attorney-general is the chief law officer, subject only to direction of the governor and the legislature.

In State, ex rel., v. Dawson, 86 Kan. 180, 119 P. 360, the authority of the governor to direct the attorney-general was considered. It was held that--

"The provisions of article 1 of the constitution which vests the supreme executive power in the governor implies that the governor is the highest in authority in the executive department, with such power as will secure a faithful execution of the laws in the manner and by the methods prescribed by the constitution and statutes in harmony with that instrument. . . . The statute making it the duty of the attorney-general, when required by the governor, to appear for the state and prosecute in any court or before any officer, in any cause or matter, civil or criminal, in which the state may be a party or interested, is mandatory." (Syl.)

In the opinion it was said:

"We do not find that the meaning of the phrase, 'The supreme executive power,' as contained in our constitution and the constitutions of many other states of this union, has ever been precisely defined, although the matter is referred to in some decisions. Perhaps the term itself taken in connection with the context is sufficiently explicit. An executive department is created consisting of a governor and the other officers named, and he is designated as the one having the supreme executive power, that is, the highest in authority in that department." (p. 187.)

In an early Illinois decision it was held:

"When a constitution gives a general power, or enjoins a duty, it also gives, by implication, every particular power necessary for the exercise of the one, or the performance of the other. The implication under this rule, however, must be a necessary, not a conjectural or argumentative one. And it is further modified by another rule, that where the means for the exercise of a granted power are given, no other or different means can be implied as being more effectual or convenient." (Field v. The People, 3 Ill. 79, 83.)

Our own statute declares:

"The attorney-general shall appear for the state, and prosecute and defend all actions and proceedings, civil or criminal, in the supreme court, in which the state shall be interested or a party, and shall also, when required by the governor or either branch of the legislature, appear for the state and prosecute or defend, in any other court, or before any officer, in any cause or matter, civil or criminal, in which this state may be a party or interested." (R. S. 75-702.)

And so, while primarily the governor is charged with the execution of the law, next to him the attorney-general is the chief law officer of the state. Some observations concerning the development of the attorney-general's duties and powers are not amiss. In Massachusetts Law Quarterly (May, 1921, p. 100) it is said:

"The office of the attorney-general is of considerable antiquity. Its early history and growth in England are traced in an article by Mr. Holdsworth, the learned historian of English law, in 13 Ill. Law Rev. 602, wherein its development is shown to have been essentially completed before the main migration of our ancestors to this country."

In 2 Thornton on Attorneys at Law, 1131, it is said:

"The office of attorney-general is of very early origin in England, though the first patent of appointment which can be found seems to be one dated 1472. At common law the attorney-general was the chief representative of the sovereign in the courts, and it was his duty to appear for and prosecute in behalf of the crown any matters--criminal as well as civil. It was said by Mr. Blackstone: 'He represents the sovereign, in whose name all criminal processes issue, and his power to prosecute...

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