State v. Goetz

• Decision Date: 07 June 1902
• Citation: 65 Kan. 125,69 P. 187
• Parties: STATE v. GOETZ et al.
• Court: Kansas Supreme Court

69 P. 187

65 Kan. 125

STATE v. GOETZ et al.

Supreme Court of Kansas, First Division

June 7, 1902

Syllabus by the Court.

1. A preliminary examination, under the provisions of article 5 of the Criminal Code, which does not result in a finding by the examining magistrate that there is probable cause to believe the prisoner guilty of the offense charged, will not authorize the county attorney to file an information against such accused, or the court in proceeding to trial upon an information so filed, when the same is attacked by a plea in abatement.

2. A justice of the peace has no jurisdiction to try or sentence one for an offense without a complaint in writing has been filed before him charging such offense.

3. The voluntary appearance of one before a justice of the peace and his plea of guilty to an offense, without any written complaint having been filed, confers no jurisdiction upon such justice to render judgment against such a one; and a judgment so rendered does not constitute a bar to a subsequent prosecution for an offense growing out of the same facts.

Appeal from district court, Ellis county; Lee Monroe, Judge.

John Goetz and Andrew Goetz were convicted of assault with intent to kill, and appeal. Reversed.

W. E Saum, for appellants.

A. A. Godard, Atty. Gen. (J. P. Shutts and A.D. Gilkeson, of counsel), for the State.

Argued before DOSTER, C. J., and JOHNSTON, CUNNINGHAM, and ELLIS, JJ.

OPINION

CUNNINGHAM, J.

The defendants were brought before a justice of the peace for preliminary examination, upon a proper complaint charging them with an assault with a dangerous and deadly weapon with intent to kill. Upon that examination the justice announced that he did not find "probable cause for charging the defendants with the offense, "but did find that they were guilty of an assault and battery. Thereupon the attorneys representing the state withdrew from the place of trial, and announced they would take no further part in any of the proceedings. The county attorney at once caused to be drawn, verified, and filed in the district court an information charging the defendants with the same offense as that stated in the complaint filed before the justice of the peace, and a warrant for their arrest was issued. Thereafter he returned to the office of the justice of the peace, and while there the defendants, their attorney being present, offered to plead guilty to an assault and battery. No complaint, written or otherwise, had been made charging them with this offense. This plea was accepted, and thereupon the justice adjudged them guilty of assault and battery, and fined them $20 each, and taxed the costs of the prosecution against them. The county attorney took part in adjusting the amount of costs. This fine and these costs were paid by the defendants, and they were discharged. Subsequently they were arrested under the warrant issued as noted above, and entered into a recognizance in the district court, and were thereafter called for trial upon the information filed, no other or further preliminary examination having been had. A plea in abatement and bar was filed, and the facts were developed as herein before stated. The court overruled the plea, and held the defendants for trial. Upon the trial the same facts were brought out as were shown before the justice of the peace on the preliminary examination, and thereon one of the defendants was convicted of a felony, and the other of assault and battery, and judgment was rendered upon such conviction, from which they appeal to this court.

The first question presented is whether the defendants could be put upon their trial for the felony charged without having been committed for trial by the examining magistrate on a preliminary examination. The state claims that the fact that the defendants had a preliminary examination is sufficient to warrant the filing of an information, notwithstanding upon such examination they were discharged; that "the only thing required is that he have or has an opportunity to have such examination, and after this has been accorded him it rests with the county attorney and the district court as to whether he shall be further prosecuted." We do not think this is a proper construction of the statute. The preliminary examination required is one occurring in the identical proceeding in which the defendants have been bound over to the district court, and growing out of which an information is finally filed by the county attorney. While one object of a preliminary examination is to inform the defendant of the nature and character of the crime charged against him, it is also a step, and a necessary step, in the proceeding that leads up to his trial in the district court. He may not be put upon his trial without the finding of the examining magistrate that there is probable cause for believing that he is guilty of the crime charged, and until a preliminary examination has ripened into such a finding, and a consequent binding over to the district court, the county attorney is not authorized to file an information against him. "The party accused has a right to a preliminary examination and a finding of probable cause before he can be placed upon his final trial." State v. Montgomery, 8 Kan. 355. The defendants’ plea in abatement...