State v. Smith

• Decision Date: 10 December 1892
• Citation: 50 Kan. 69,31 P. 784
• Parties: THE STATE OF KANSAS v. VOLLIE L. SMITH
• Court: Kansas Supreme Court

31 P. 784

50 Kan. 69

THE STATE OF KANSAS v. VOLLIE L. SMITH

Supreme Court of Kansas

December 10, 1892

Appeal from Ottawa District Court.

PROSECUTION for murder in the first degree. From a conviction for murder in the second degree, defendant, Smith, appeals. The facts are stated in the opinion.

Judgment affirmed.

J. G Mohler, for appellant:

The court erred in overruling the defendant's plea in abatement. There was no waiver of a preliminary examination. It, therefore, became necessary for the state to prove its case.

The murder is not charged as having been "willfully" done--the word "willful" is not used, nor any equivalent word; wherefore we claim the charge in the warrant is not murder in the first degree.

In Pennsylvania, the word "maliciously" has been held an equivalent for the word "willfully," in an indictment for arson. Chapman v. Commonwealth, 5 Whart. 427. If our contention is correct, the committing court could not "bind over" the defendant to answer for the crime of murder in the first degree, unless this court shall hold that the charge in the warrant has no relevancy to the investigation being had. See §§ 55, 68, 69, of the criminal code. The case of Redmond v. The State, 12 Kan. 172 was a civil action on a forfeited recognizance, and is not an authority on the proposition involved in this case. The prosecution in the district court was not instituted, carried on or conducted by any proper prosecuting officer, because E A. Haldeman, who was elected to the office of county attorney of Ottawa county in 1890, never was and is not now a duly-admitted attorney at law. The office of county attorney is one created by statute, and the duties to be performed are specifically designated. Gen. Stat. of 1889, PP 1795-1798. The duties designated can be performed only by an attorney at law, who must be examined and found to be duly qualified, must take an oath and be duly enrolled as such attorney, and who thereby becomes and is an officer of the court, subject to its orders. Gen. Stat. of 1889, PP 388-405; 1 Bacon's Abr., title Attorney; 1 Comyn's Dig., title Attorney; 1 Bouvier's Law Dict., Attorney at Law. See, also, 2 Chitty, Gen. Pr., ch. 1, pp. 1-45; 3 Bl. Com. 26, et seq.; 1 Bish. Cr. Proc., § 278; Const. of Ind. 1851, art. 7, § 21; Gen. Stat. of 1889, PP 1801, 1803, 1805, 1807, 4190, 5130, 5153, 5174, 5166, 5167, 7281. The information in this case is signed "E. A. Haldeman, county attorney." We challenged his claim to being county attorney, and by his own evidence proved such a state of facts as made it impossible for him to be county attorney, and challenged his right to act as such, and challenged the sufficiency of the information, and the jurisdiction of the court by reason of said facts, and we claim the court erred in holding it had jurisdiction, in refusing to quash the information, and in ordering plea for defendant to be entered, and compelling the trial to proceed. The State v. Tannahill, 4 Kan. 117; The State v. Nulf, 15 id. 404; Ex parte Garland, 4 Wall. 378; Ex parte Robinson, 19 id. 505, 512.

The defendant made his objection to private counsel making the closing argument to the jury, demanding that such argument be made by the public prosecutor. The court overruled this objection, on the authority of The State v. Wilson, 24 Kan. 189. The precise question here presented was not ruled in The State v. Wilson. The objection was not to assistance by private counsel, but to the making of the closing argument--which, in effect, we claim, gave private counsel control of the case. We think that the view taken by the supreme court of Michigan in Meister v. The People, 31 Mich. 101, should prevail in this case. All of the claimed newly-discovered evidence was material testimony in the case, and testimony which the defendant should have had an opportunity to present to the jury. The court below erred in giving certain instructions to the jury, and in refusing certain instructions asked for by the defendant; and in overruling his motions for a new trial, and in arrest of judgment.

John N. Ives, attorney general, and E. A. Haldeman, county attorney, for The State:

The overruling of the plea in abatement is in harmony with the repeated decisions of this court. The State v. Tennison, 39 Kan. 726, and cases therein cited. See Rapalje & L., Law Dict., p. 784.

E. A. Haldeman was the duly-elected county attorney of Ottawa county, and derived his authority as such officer from the same source as that of the district court. See Clough v. Hart, 8 Kan. 3487. "The district court must always take judicial notice of the official character and identity of the public prosecutor." 5 U.S. Digest, First Series, 490, PP 151-163. The county attorney is an officer of the district court, of which fact the court is bound to take judicial notice, and, under the doctrine laid down in Clough v. Hart, supra, the court has no right to ignore or question his authority. Norvall v. McHenry, 1 Mich. 227; Anderson v. Bell, 9 Cal. 315; The State v. Postlewait, 14 Iowa 446; Mastenson v. La Clair, 4 Minn. 163; Thompson v. Haskell, 21 Ill. 215.

It clearly appears in this case that the information was signed by the proper prosecuting officer. This was sufficient in this case. The State v. Tannahill, 4 Kan. 118. Section 110, criminal procedure, provides that no indictment or information may be quashed or set aside for any defect or imperfection which does not tend to prejudice the substantial rights of the defendant upon the merits.

We invite a careful review of the newly-discovered evidence, contending that no grounds were laid therein for a new trial.

After a careful examination of all the special instructions asked for by the defendant and refused by the court, and comparing them with the instructions given in this case, we think the court's instructions to the jury are free from error, at least reversible error, and the objections raised by counsel, except those relating to the instructions, are all technical, and if counsel were right in his contentions, these do not affect the substantial rights of the defendant; those asked being incorporated in the ones given, and containing fully and clearly the general propositions of law applicable to the case, it is not necessary to repeat them after once given. The State v. Kearley, 26 Kan. 77; The State v. Peterson, 38 id. 204; The State v. Miller, 35 id. 328; Rauck v. The State, 11 N.E. 450.

VALENTINE, J. All the Justices concurring.

OPINION

VALENTINE, J.:

This was a criminal prosecution upon information, in which the defendant, Vollie L. Smith, was charged with committing murder in the first degree in the killing of George Allen Wilson, on January 24, 1892. The defendant was tried, and convicted of murder in the second degree, and was sentenced to imprisonment and hard labor in the penitentiary for the term of 13 years; and from this sentence he now appeals to this court.

The first complaint on the part of the defendant is that the court below erred in overruling the defendant's plea in abatement. By this plea, the defendant urges that he has never had any preliminary examination with regard to the offense charged in the information or the offense of which he was convicted; and this upon the ground that the original warrant, upon which he was arrested and upon which he had his preliminary examination, was not sufficient; and this upon the ground, as stated in his brief, that the killing "is not charged as having been 'willfully' done. The word 'willfully' is not used or any equivalent word," and "the word 'malicious' is not used in the warrant." The warrant in fact, however, charges among other things as follows:

"One Vollie L. Smith did then and there unlawfully, feloniously, premeditatedly, and deliberately, with malice aforethought, with a pistol loaded with powder and leaden bullets, assault, shoot and wound one George Allen Wilson, then and there being, with the intent him, the said George Allen Wilson, then and there to feloniously kill, then and there giving to the said George Allen Wilson one mortal wound, from which mortal wound the said George Allen Wilson did then and there die."

Upon this warrant, the justice of the peace who issued it heard the evidence, and required the defendant to answer in the district court to the charge of murder in the first degree. The defendant then obtained a writ of habeas corpus from the judge of the district court, and such judge, upon the hearing, as the record shows, made the following finding and order:

"And the said judge, after having heard the evidence and the arguments of counsel, and being fully advised in the premises, finds, that the crime of murder in the first degree has been committed, and that there is probable cause for believing that the defendant, Vollie L. Smith, committed said crime. It is further ordered, that the said Vollie L. Smith be committed to the county jail of Ottawa county without bail, to answer at the district court of said county for said crime."

None of the evidence introduced on the preliminary examination or on the hearing of the habeas corpus proceeding has been brought to this court. It is hardly necessary to state anything further or any other facts with regard to this matter, or to make any comment. (See the cases of The State v. Bailey, 32 Kan. 83; The State v. Tennison, 39 id. 726.)

It is next claimed by the defendant that the whole proceeding in the district court was irregular and erroneous, for the reason that the prosecution was not instituted, carried on or conducted by any proper prosecuting officer. The information was filed and the prosecution carried on and conducted by E A. Haldeman, as the county attorney of Ottawa county; and he was assisted at the trial by R. A....