State v. Kirkpatrick

• Decision Date: 07 October 1893
• Parties: THE STATE OF KANSAS v. A. J. KIRKPATRICK
• Court: Kansas Supreme Court

34 P. 415

52 Kan. 50

THE STATE OF KANSAS v. A. J. KIRKPATRICK

Supreme Court of Kansas

October 7, 1893

Appeal from Jackson District Court.

INFORMATION against Kirkpatrick for selling intoxicating liquors unlawfully. From a judgment quashing the information The State appeals. The material facts appear in the opinion.

Judgment reversed and cause remanded.

John T Little, attorney general, C. F. Hurrel, and Ella W. Brown for The State.

W. S Hoaglin, and C. B. Hamble, for appellee.

JOHNSTON J. All the Justices concurring

OPINION

JOHNSTON, J.:

An information was filed which charged A. J. Kirkpatrick with several violations of the prohibitory liquor law, and which was verified by the county attorney upon information and belief. Prior to the filing of the information, a preliminary inquiry was held by the county attorney as to whether the defendant was unlawfully selling intoxicating liquors, and the testimony of four witnesses was taken and reduced to writing, and that given by two of them was filed with the information. When the defendant was arrested, he entered into a recognizance for his appearance at the next term of the court, without questioning the verification of the information or its sufficiency as a basis for a warrant. Afterward he moved to strike from the files the testimony taken by the county attorney and filed with the information, which motion was denied. Afterward he moved to set aside the warrant as well as the recognizance theretofore entered into by him, but both of these motions were overruled. He then moved to quash the information upon several grounds, one of which was that all of the testimony taken by the county attorney prior to commencing the prosecution had not been filed with the information, which motion was sustained, "upon the ground that the testimony of two persons which had been taken by the county attorney prior to the filing of the information had never been filed with the information and never made a part thereof." From this decision of the district court the state appeals.

The ruling cannot be sustained. The county attorney is not required to file all the testimony that may have been taken in such preliminary inquiry, but only such as discloses the fact that an offense has been committed. (Gen. Stat. of 1889 P 2543.) No good purpose would be served by the filing of testimony which did not show, or tend to show, the commission of an offense. When material testimony has been taken and filed with an information or complaint verified upon...