State v. Taylor

• Decision Date: 09 March 1907
• Docket Number: 15,135
• Citation: 75 Kan. 417,89 P. 672
• Parties: THE STATE OF KANSAS v. JOHN D. TAYLOR
• Court: Kansas Supreme Court

89 P. 672

75 Kan. 417

THE STATE OF KANSAS v. JOHN D. TAYLOR

No. 15,135

Supreme Court of Kansas

March 9, 1907

Decided January, 1907.

Appeal from Miami district court; WINFIELD H. SHELDON, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

INFORMATION--Verification--Personal Knowledge of Prosecutor. In prosecutions under the prohibitory liquor law, when the complaint is verified positively by the prosecuting attorney, no inquiry can be made touching the source or extent of his knowledge or the information upon which such verification is based; nor can he be required to file in court or exhibit to the defendant affidavits or other testimony taken by him previous to filing the complaint.

Fred S Jackson, attorney-general, and John S. Dawson, assistant attorney-general, for The State.

Frank M. Sheridan, and Mulvane & Gault, for appellant.

OPINION

PORTER, J.:

This is an appeal from a conviction under the prohibitory liquor law. The information contained thirteen counts charging sales, and one for maintaining a nuisance. Appellant was convicted under one count charging a sale, and also under the nuisance count.

It has been difficult to ascertain clearly the errors complained of. Appellant's brief disregards the provisions of rule 10 and contains no specification of errors, but refers us to the specifications set forth in the petition in error. The latter contains twenty-nine separate specifications of error. The purpose of the requirement that the errors claimed shall be specified is that the contentions of the parties may be narrowed, and the labors of the court and opposing counsel to some extent lessened. In this case the specifications cover three pages of the record. They embrace every ruling made during the progress of the trial, and include a number which have reference solely to counts upon which the appellant was acquitted. They are so drawn out and amplified that they serve to bewilder and confuse instead of to aid either the court or counsel.

Many of the contentions of the appellant are not deemed of sufficient importance to require comment. We will discuss those upon which he appears most strongly to rely for a reversal.

The information was verified positively by B. L. Sperling, assistant attorney-general for Miami county. It is claimed by appellant that at the time the information was filed the assistant attorney-general had no personal knowledge of the offenses charged but depended wholly upon the information contained in sworn statements taken by him. This was brought to the attention of the court by affidavits of the appellant in support of a motion to quash, a motion that the information be made more definite and certain, and a motion to require the affidavits to be filed in court, as well as by a motion asking the right to inspect the written testimony. The assistant attorney-general was placed upon the stand, and upon examination admitted that he had no personal knowledge of the acts charged, and that the only information he possessed was that procured in the form of affidavits taken by him prior to the filing of the complaint.

All these motions were denied and error is alleged in each ruling. It is contended that an information can only be verified positively where the prosecutor has personal knowledge of the charges; that where it is made to appear to the court that the prosecutor has no personal knowledge of the truth of the charges the positive character of the verification disappears, and it then stands as though made upon information and belief; that at once it becomes the right of the accused to have the written evidence upon which the prosecutor based his information filed in court; and that the state is then confined in its proof to the offenses specified therein.

Most of the cases cited in support of this contention are those wherein the information was verified on information and belief. These, of course, are not in point. We can conceive of no reason why the prosecutor in this class of cases may not verify a complaint positively if he chooses so to do, and base his verification upon information obtained from others. He does this in an information charging murder or other felony, where he rarely has personal knowledge of the facts.

The provisions of section 2473 of the General Statutes of 1901 are that where a county attorney has examined witnesses on oath with reference to violations of the prohibitory liquor law he may file the statements with the information, and when so filed they, together with the information verified by him on information and belief, shall have the same effect as if the information had been verified positively. Appellant argues that this provision was inserted in the prohibitory act solely for the benefit of the accused. We think its primary purpose was to provide for the filing of informations in cases where the county attorney might hesitate to verify positively, to the end that the law might more readily be enforced. True, it has been held that when the prosecution is begun in that way the state is confined in its proof to the offenses specified, and in such cases defendant has been said to be...