State v. Gleason
Decision Date | 03 July 1884 |
Citation | 4 P. 363,32 Kan. 245 |
Parties | THE STATE OF KANSAS v. STEPHEN E. GLEASON |
Court | Kansas Supreme Court |
Appeal from Allen District Court.
PROSECUTION for a violation of § 7 of the prohibitory liquor law. At the March Term, 1884, the defendant Gleason was found guilty and sentenced to pay a fine of $ 100 and costs, and to be committed to the county jail until the same were paid. From this judgment he appeals. The material facts appear in the opinion.
Judgment reversed.
G. P Smith, for appellant:
No warrant can lawfully issue upon such a complaint or information as the one in the present case, as the first step in a criminal prosecution. The only pretense of justification is found in the 12th section of chapter 128, Laws of 1881 which attempts to authorize such a proceeding, by saying it shall be sufficient if the county attorney swears that he believes the matters and things stated in the complaint to be true. We insist that this provision of said § 12 is unconstitutional and void--
First, because it conflicts with § 16 of art. 2 of the constitution of Kansas; and, second, because it is in violation of § 15 of the bill of rights.
In support of our argument touching these questions, see -- Hurd on Habeas Corpus, pp. 426, 367, 370, 371, 379, 382, 383, 391, 384; 1 Bishop on Cr. Pro., §§ 893, 894, 901; Ex parte Burford, 3 Cranch, 448; Ex parte. Haynes, 18 Wend. 612; Loder v. Phelps, 13 id. 46; Sanford v. Nichols, 13 Mass. 236; Connor v. Commonwealth, 3 Binney, 38; 2 Virg. Cases, 504; 5 Ired. 72; 1 Tyler, 444; 4 Denio, 120; 6 Hill, 429; 14 Ohio St. 213; 17 id. 640; 18 id. 481, 521; 12 id. 222; 16 id. 345; 6 Ohio, 490; 17 id. 225; 13 Gray, 575; 16 Ill. 347; 3 McLean, 326; 16 Pick. 211; Potter's Dwarris, 526; 7 Kan. 427; 31 id. 71.
G. A. Amos, county attorney, for The State.
This was a prosecution for the violation of § 7, chapter 128, Laws of 1881, commonly known as the prohibitory liquor law. The county attorney commenced proceedings by information or complaint in the district court. This was verified by the county attorney upon information and belief. The defendant moved the court to set aside and quash the warrant issued upon the information, and for his discharge, for the reason that no probable cause was shown, supported by oath or affirmation. This motion was overruled. The defendant objected to being tried upon the information, declined to plead thereto, or to make any defense. The court ordered a plea of "not guilty" to be entered in his behalf, and, after the prosecution had introduced all its evidence, instructed the jury. A verdict of guilty was rendered, and defendant was sentenced to pay a fine of $ 100 and costs, and to be committed until the same were paid.
The question is, may a person be arrested on a warrant issued upon a complaint or information charging a criminal offense, verified on nothing but the county attorney's hearsay and belief prior to a preliminary examination, or a waiver of the right to such an examination? Sec. 67a, ch. 82, Comp. Laws of 1879, reads:
" When the information in any case is verified by the county attorney, it shall be sufficient if the verification be upon information and belief." (Laws of 1871, ch. 117, § 3.)
Sec. 12, ch. 128, Laws of 1881, provides, among other things:
Therefore, in all cases where a person has a preliminary examination, or waives his right to such examination, the defendant is brought before the magistrate on a warrant issued on probable cause and supported by the oath or affirmation of some person. After such preliminary examination, if it shall appear to the magistrate that an offense has been committed, and that there is probable cause to believe the defendant guilty, he shall either accept bail from the defendant for his appearance to the court where he is to be tried, or, if the offense be not bailable, he shall be committed for trial. The cases of The State v. Montgomery, supra, and The State v. Nulf, supra, were prosecutions for grand larceny -- felonies--and in both cases preliminary examinations were had before the filing of the informations in the district court. In the case of The State v. Montgomery, it was said:
And, citing from Washburn v. The People, 10 Mich. 372, it was further said:
The case of The State v. Nulf was decided upon the authority of The State v. Montgomery, supra, and therefore these decisions are not only conclusive against the claim of the defendant, but, if they have any bearing, rather tend to support the argument upon which the claim is presented.
Sec. 15 of the bill of rights declares:
"The right of the people to be secure in their persons and property against unreasonable searches and seizures, shall be inviolate; and no warrant shall issue but on probable cause, supported by oath or affirmation particularly describing the place to be searched, and the person or property to be seized."
Sec. 2 of procedure before justices, in misdemeanors, reads:
"Whenever a complaint shall be made to a justice of the peace, on the oath or affirmation of a person competent to testify, charging any person with the commission of any misdemeanor, he shall forthwith issue a warrant for the arrest of such person, and cause him to be brought forthwith before him for trial."
We held in In re Donnelly, 30 Kan. 191, 1 P. 648, that where a person is arrested and brought before a justice of the peace, charged with the commission of a misdemeanor, of which the justice of the peace and the district court have concurrent original jurisdiction, the state has no right to elect to treat the proceedings before the justice of the peace as a mere preliminary examination. Therefore, in cases of misdemeanor, of which a justice of the peace and the district court have concurrent jurisdiction, the trial must proceed upon the complaint or information filed, without any preliminary examination; and § 12 of said chap. 128 is the only authority for the verification of a complaint upon belief merely, where the defendant is not permitted to have a preliminary examination before his final trial, excepting in the cases provided for by the statute for filing informations against fugitives from justice. In this condition of matters the question recurs upon the interpretation to be given to that clause of § 15 of the bill of rights, "that no warrant shall issue but on probable cause, supported by oath or affirmation." Of course it must be conceded that the constitution is the superior and paramount law, and that said § 15 is declaratory of the fundamental rights of the citizen, and is intended to protect him in his liberty and property against the arbitrary action of those in authority. So long as this section is in force, the principles therein declared are to remain absolute and unchangeable rules of action and decision. The legislature cannot...
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