The City of Topeka v. Kersch
| Decision Date | 11 February 1905 |
| Docket Number | 14,059 |
| Citation | 79 P. 681,70 Kan. 840 |
| Parties | THE CITY OF TOPEKA v. TONY KERSCH |
| Court | Kansas Supreme Court |
Decided January, 1905.
Rehearing March 11, 1905, Filed
Appeal from Shawnee district court; Z. T. HAZEN, judge.
Judgment affirmed.
SYLLABUS BY THE COURT.
1. CRIMINAL PROCEDURE--Jurisdiction upon Appeal from Police Court. A prosecution for violating a city ordinance was had in the police court of a city of the first class before an acting police judge on a verbal charge preferred by a policeman for an offense committed in his presence. The charge was entered in the docket of the police judge, with the names of the witnesses for the city, together with the judgment of the court. Held, that a transcript of the docket, certified to by the regular police judge, was sufficient to give the district court jurisdiction of the case on appeal.
2. CRIMINAL PROCEDURE--Intoxicating Liquors--No Accessories in Misdemeanors. A verbal complaint in the police court of a city of the first class charged defendant with assisting in keeping a common nuisance under the prohibitory liquor law. There being no accessories in misdemeanors, proof that the accused committed the offense unaided by any other person justified a conviction.
3. CRIMINAL PROCEDURE--Reference to Place Justifiable--Verdict Held Responsive. A complaint of the kind referred to above charged that defendant assisted in committing a common nuisance in a back room on the first floor of a two-story building at No. 708 Kansas avenue. The verdict found defendant guilty of maintaining a nuisance at 708 Kansas avenue, "as claimed in this prosecution." The particular room was described by witnesses for the city, and the court referred to it in the instructions as "the place described in the evidence." Held, that in the absence of a written complaint the court was justified in the reference it made to the place where the offense was committed, and that the verdict was responsive to the charge.
4. CRIMINAL PROCEDURE--Objection Waived--Cases Followed. A defendant arrested on view, without warrant, for a misdemeanor committed in the presence of a police officer attacked the constitutionality of section 813 of the General Statutes of 1901, authorizing such arrest, after conviction in the police court and after appeal to the district court and trial there on the merits. Held, that any objection to the legality of the arrest was waived. The cases of The State v. Blackman, 32 Kan. 615, 5 P. 173, and The State v. Bjorkland, 34 id. 377, 8 P. 391, followed.
Charles F. Spencer, city attorney, and W. C. Ralston, for appellee.
G. C. Clemens, and C. A. Magaw, for appellant.
OPINION
Appellant was taken into custody on view of the commission of an offense by a policeman of the city of Topeka and brought before the police court without process. An oral complaint was made against him by the officer charging that on or about July 3, 1903, in a back room on the first floor of a two-story building at No. 708 Kansas avenue, defendant did unlawfully assist in keeping and maintaining a place where spirituous, malt, vinous, fermented and other intoxicating liquors were sold, bartered, and given away, and where persons were permitted to resort for the purpose of drinking such intoxicating liquors as a beverage, and where intoxicating liquors were kept for sale, barter, and delivery, without a permit, etc., in violation of the ordinances of the city.
Appellant was found guilty, a fine imposed, together with a sentence of imprisonment. He appealed, giving bond in the sum of $ 500. The transcript sent up showed that appellant was convicted before M. L. Field, acting police judge. It was certified, however, thus:
In the district court Kersch moved to dismiss the action for the reason that the transcript did not show that he was charged tried, or convicted in the police court of any offense against the ordinances of the city. The motion was overruled. He renewed the motion after the jury were sworn to try the case. The same ruling was made. Before the jury were sworn defendant objected to being placed on trial for the reason that there was no complaint or warrant on which he could be tried. This objection was overruled. We suppose this motion was intended to attack the transcript because it was not legally certified. If so, it was far from specific, and we might well say did not raise the question. The transcript, however, was not defective. It was certified to by the regular police judge, the only officer authorized to do so. Appellant's counsel argue that, their client having been tried before a special or acting police judge, the proceedings must be certified by him, and liken the case to a settlement of a bill of exceptions by a judge pro tem. The cases are not analogous. Proceedings on appeal from convictions in the police court are regulated by section 807 of the General Statutes of 1901, which applies the law respecting procedure before justices of the peace to appeals from the police court. All that is necessary on such appeal is to get the proceedings before the district court which appear in the docket of the police judge The word "proceedings" has a broad meaning. (Drumm v. Cessnum, 61 Kan. 467, 59 P. 1078.)
Under the theory of counsel for appellant, if the acting police judge should die or remove from the state there could be no appeal. The complaint against defendant appeared on the docket; there was no warrant. A certified copy of the docket entries, together with a certificate of the recognizance, was all that the law required to give the district court jurisdiction of the case. Appellant, when arraigned in the police court, did not demand to have a complaint filed against him under oath, to which he was entitled under the statute. (Gen. Stat. 1901, § 813.) The filing of a written complaint being waived, the waiver concluded his rights thereto in the district court after appeal. The complaint could not be changed or amended except in the police court. (City of Burlington v. James, 17 Kan. 221.)
Because appellant was charged with assisting in keeping and maintaining a common nuisance it is urged that the court misdirected the jury in stating that he was on trial for keeping and maintaining such nuisance. In misdemeanors all who aid or assist are principals; the law recognizes no accessories. The testimony showed that Kersch, at the time of his arrest, was serving liquor over the bar to about ten men. He had no hat or coat on and was actively engaged in the work. The supply of liquor was ample. It is insisted that no intoxicating liquors were found in the possession of appellant, and hence no prima facie case arose under section 2500 of the General Statutes of 1901. We think there was ample proof of possession. A barkeeper serving customers with intoxicating drinks has possession of the liquor dispensed, at least while placing it on the bar. The court by proper instructions left the question to the jury whether defendant was committing the offense of which he was convicted in the presence of the officer at the time of his arrest.
The verdict returned by the jury found appellant guilty of keeping and maintaining a common nuisance. at No. 708 Kansas avenue, in the city of Topeka, on July 3, 1903, "as claimed in this prosecution." Because the verbal charge specified a back room on the first floor of a two-story building at No. 708 Kansas avenue as the place of the commission of the offense it is urged that the verdict was not responsive to the charge, and did not sustain a sentence under it.
It must be remembered that the charge against the accused was not in writing. He was tried on the verbal statement of a police officer, who first made the accusation in the presence of the offender in the police court and afterward testified under oath to the charges preferred. It was not error for the court to refer in the instructions to "the place described in the evidence" when commenting on the location of the offense. By failing to demand a written complaint appellant waived technical averments against him, and cannot now be heard to complain that information respecting the nature of his offense was conveyed to him verbally. Of the general scope of the charge he was amply informed by the preliminary statement of the officer; the details were given in the testimony.
That part of section 813 of the General Statutes of 1901 which authorizes an arrest upon view of a crime committed in the presence of a police officer, without warrant, is attacked as unconstitutional because in violation of section 15 of ...
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