State v. The Court of Coffeyville

• Decision Date: 11 June 1927
• Docket Number: 27,744
• Citation: 256 P. 804,123 Kan. 774
• Parties: THE STATE OF KANSAS, ex rel. C. W. MITCHELL, County Attorney of Montgomery County, Appellee, v. THE COURT OF COFFEYVILLE, and A. A. BAKER, Judge of the Court of Coffeyville, Appellants
• Court: Kansas Supreme Court

256 P. 804

123 Kan. 774

THE STATE OF KANSAS, ex rel. C. W. MITCHELL, County Attorney of Montgomery County, Appellee, v. THE COURT OF COFFEYVILLE, and A. A. BAKER, Judge of the Court of Coffeyville, Appellants

No. 27,744

Supreme Court of Kansas

June 11, 1927

Decided January, 1927.

Appeal from Montgomery district court; JOSEPH H W. HOLDREN, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. CRIMINAL LAW--Authority of County Attorney Over Misdemeanor Prosecutions--Right to Dismiss. While the county attorney is not required to appear and conduct the prosecution of a misdemeanor case in a justice of the peace court unless requested to do so by the magistrate or the complainant, if he does appear he is entitled to have full charge of the prosecution, and the case should be dismissed if he so directs.

2. SAME--Discretion of County Attorney as to Prosecuting in Justice or District Court. A county attorney has a wide discretion as to whether he shall prosecute a misdemeanor case before a justice of the peace (or in a city court having the jurisdiction of a justice of the peace in such cases) or in the district court having concurrent jurisdiction. This discretion should not be interfered with by the justice of the peace.

3. SAME--Dismissal Before Justice to Enable Prosecution in District Court. The dismissal of a misdemeanor case pending before a justice of the peace and the bringing of case on the same facts in the district court is not tantamount to a change of venue.

Walter S. Keith, Harold McGugin, both of Coffeyville, Thurman Hill and S. H. Piper, both of Independence, for the appellants.

C. W Mitchell, county attorney, and John M. Cook, assistant county attorney, for the appellee.

OPINION

HARVEY, J.:

This is an appeal from an order of prohibition made by the district court of Montgomery county directed to the court of Coffeyville and A. A. Baker, its judge, restraining and prohibiting defendant from trying a misdemeanor case pending in that court.

The jurisdiction of the court of Coffeyville in criminal cases is the same as that of justices of the peace (R. S. 20-1603), that is, it has concurrent original jurisdiction with the district court in misdemeanor cases (R. S. 63-101).

On March 19, 1927, the county attorney prepared and filed in the court of Coffeyville a complaint charging H. G. Beatty with unlawful assembly, a misdemeanor (R. S. 21-1001). A warrant was duly issued, Beatty was arrested and brought into court. He gave bond for his appearance the date set for trial. On March 26, 1927, the county attorney of Montgomery county appeared in the court of Coffeyville and orally moved and directed the court to dismiss the case, and on the same day, or the next, the county attorney filed an information in the district court of Montgomery county charging Beatty with the same offense previously charged in the court of Coffeyville. The judge of the court of Coffeyville declined to make an order dismissing the case in that court. On April 2, 1927, the county attorney filed in the court of Coffeyville a written motion in the case there pending wherein he moved and directed the court of Coffeyville to dismiss the case at the cost of the state. On April 5, 1927, Beatty filed, in his case in the court of Coffeyville, a motion asking the court to set the case for hearing before a jury. The motion was by the court considered and sustained and the case was set for hearing in that court before a jury for the 12th day of April. On April 7, 1927, this action was brought to restrain and prohibit the court of Coffeyville and the judge thereof from proceeding with the trial of the case in that court. This case was heard by the district court, and on April 9 an order made prohibiting further proceedings in the case in the court of Coffeyville and adjudging to be null and void all proceedings in that court subsequent to April 2, 1927.

In support of the order appealed from it is contended that the county attorney had authority, for any reason which appeared to him to be sufficient, to appear in the court of Coffeyville and to dismiss the case there pending at any time before trial, and to file an information in the district court against the same defendant for the same offense. This contention must be sustained. It is made the duty of the county attorney to appear in the several courts of his county and prosecute or defend on behalf of the state all suits, applications, or motions, civil or criminal, arising under the laws of the state in which the state is a party. (R. S. 19-702.) When requested by the justice of the peace or the complainant he shall appear and prosecute all misdemeanors tried before a justice of the peace in his county (R. S. 63-505), and when requested by any magistrate he shall appear on behalf of the state before such magistrate and prosecute all complaints made on behalf of the state in which such magistrate shall have jurisdiction and conduct any criminal examination which may be had before such magistrate. (R. S. 19-703.)

"A criminal prosecution is a state affair, and the control of it is in the public prosecutor." (State v. Wilson, 24 Kan. 189, 192.)

"The law makes it the duty of the county attorney to conduct criminal prosecutions on behalf of the state, and all steps in the trial are alike under his supervision and control." (State v. Wells, 54 Kan. 161, 165, 37 P. 1005.)

"No one but the county attorney, or the attorney-general on proper occasion, or persons deputized by them, may control prosecutions within a county." (State v. Snelling, 71 Kan. 499, 506, 80 P. 966.)

In the case of In re Broadhead, 74 Kan. 401, 405, 86 P. 458, it was stated:

"The county attorney is the representative of the state in...