State v. Ray

• Decision Date: 06 November 1909
• Docket Number: 16,456
• Citation: 105 P. 46,81 Kan. 159
• Parties: THE STATE OF KANSAS, Appellant, v. GEORGE RAY, Appellee
• Court: Kansas Supreme Court

105 P. 46

81 Kan. 159

THE STATE OF KANSAS, Appellant, v. GEORGE RAY, Appellee

No. 16,456

Supreme Court of Kansas

November 6, 1909

Decided July, 1909.

Appeal from Leavenworth district court; ELI NIRDLINGER, judge pro tem.

Appeal dismissed.

SYLLABUS

SYLLABUS BY THE COURT.

1. HABEAS CORPUS -- Appeal from Examining Magistrate to District Court. The civil code (old Civ. Code, § 672; Civ. Code 1909, § 700) gives a party committed for a crime by an examining magistrate an appeal to the district court by the writ of habeas corpus.

2. HABEAS CORPUS -- Discharge by District Court -- Appeal to the Supreme Court. Where an appeal is so taken to the district court from the order of an examining magistrate committing a person upon a criminal charge, and he is upon such proceedings discharged by the district court for want of probable cause to hold him for trial, there is no authority for an appeal to this court from the order discharging the prisoner.

Fred S Jackson, attorney-general, and Lee Bond, county attorney, for the appellant; W. W. Hooper, of counsel.

John T O'Keefe, for the appellee.

OPINION

BENSON, J.:

The defendant was arrested upon a charge of perjury, and upon the preliminary examination was held for trial in the district court. He was then taken from the custody of the sheriff in proceedings in habeas corpus before the district court, and upon the trial was discharged. From this order the state appeals.

The record contains the testimony given before the committing magistrate, which was repeated on the trial in the district court, together with other evidence, but in view of the conclusions reached it will not be necessary to review this evidence.

The question whether the order discharging the defendant is appealable must be considered. Section 672 of the civil code provides:

"No person shall be discharged from an order of commitment issued by any judicial or peace officer for want of bail, or in cases not bailable, on account of any defect in the charge or process, or for alleged want of probable cause; but in all such cases the court or judge shall summon the prosecuting witnesses, investigate the criminal charge, and discharge, let to bail, or recommit the prisoner, as may be just and legal, and recognize witnesses when proper." (Gen. Stat. 1901, § 5168.)

The same provision is continued as section 700 of the civil code of 1909. (Laws 1909, ch. 182, § 700.)

This court has held that "under this section we hold that when a writ of habeas corpus issues on a complaint of illegal imprisonment, for alleged want of probable cause, the judge or court issuing the writ may, even in cases where there is no defect in the charge or process, summon the prosecuting witness, investigate the criminal charge, and discharge, let to bail, or recommit the prisoner, as may be just and legal. This section gives a party committed for a crime by an examining magistrate an appeal from his commitment by virtue of the writ of habeas corpus." (In re Snyder, Petitioner, &c., 17 Kan. 542, 552.) In this case, as in that, the appeal was taken upon the ground that the facts proved before the magistrate did not show the commission of a crime--in other words, that there was no probable cause to hold the defendant for trial--and under this statute, and in the light of that decision, it must be held that the hearing upon the writ of habeas corpus was a preliminary examination. The order discharging the defendant was not a bar to another preliminary examination for the same offense or further prosecution therefor. (The State v. Jones, 16 Kan. 608.)

In Cook v. Wyatt, 60 Kan. 535, 57 P. 130, it was held that a sheriff had no right to appeal to this court from an order discharging a person committed to his custody by a justice of the peace for contempt. Whether the state might appeal...