State v. Gleason

• Citation: 4 P. 363,32 Kan. 245
• Parties: THE STATE OF KANSAS v. STEPHEN E. GLEASON
• Decision Date: 03 July 1884
• Court: United States State Supreme Court of Kansas

4 P. 363

32 Kan. 245

THE STATE OF KANSAS v. STEPHEN E. GLEASON

Supreme Court of Kansas

July 3, 1884

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.

HORTON, C. J. All the Justices concurring.

OPINION

HORTON, C. J.:

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:

"If the county attorney of any county shall be notified by any officer or other person of any violation of any of the provisions of this act, it shall be his duty forthwith to diligently inquire into the facts of such violation, and if there is reasonable ground for his instituting a prosecution, it shall be the duty of such county attorney to file a complaint in writing before some court of competent jurisdiction, charging the suspected person of such offense, and shall verify such complaint by affidavit; but it shall be sufficient to state in such affidavit that he believes the facts stated in such complaint to be true."

If the statutes were controlling, and there was no limitation or qualification thereof and no constitutional inhibition, it is manifest that a verification upon hearsay or belief would be sufficient. The counsel for the state claims this to be so, and refers to The State v. Montgomery, 8 Kan. 351, and The State v. Nulf, 15 id. 404, as conclusive. Now § 67a of chapter 82 must be interpreted in connection with § 69 of the same chapter, which provides that--

"No information shall be filed against any person for any felony, until such person shall have had a preliminary examination therefor, as provided by law, before a justice of the peace, or other examining magistrate or officer, unless such person shall waive his right to such examination: Provided, however, That informations may be filed without such examination against fugitives from justice."

For the purpose of instituting a preliminary examination, the statute requires that--

"Upon complaint made to any magistrate that a criminal offense has been committed, he shall examine on oath the complainant and any witness produced by him, and shall reduce the complaint to writing and shall cause the same to be subscribed by the complainant; and if it shall appear that any such offense has been committed, the court or justice shall issue a warrant naming or describing the offense charged to have been committed, and the county in which it was committed, and require the officer to whom it shall be directed, forthwith to take the person accused and bring him before some court or magistrate to be dealt with according to law."

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:

"A party accused has the right to a preliminary examination and the finding of probable cause, before he can be placed upon final trial. At such examination he can be heard by his counsel and witnesses."

And, citing from Washburn v. The People, 10 Mich. 372, it was further said:

"The object of this verification is not, as in the examinations alluded to, to satisfy the court that the defendant is guilty. It is not for the purpose of evidence, which is to be weighed and passed upon, but only, as we think, to secure. good faith in the institution of the proceedings, and to guard against groundless and vindictive prosecutions; and this object is fully met by the previous examination and a verification upon belief."

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...