In re Broadhead, 86 P. 458

In re Broadhead

86 P. 458 | Kan. | 1906

The opinion of the court was delivered by

Smith, J.:

The warrant issued in this case was very irregular and informal. Assuming, without deciding, that when issued it contained a sufficient charge to justify the .arrest of the petitioner, two questions remain to be decided: (1) Did the instrument at the time of the arrest of the petitioner, in March, 1906, retain the attributes of a warrant in full force, or was it functus officio ? (2) .Was the action barred by the statute of limitation at the time of the arrest of the petitioner?

It is contended on the part of the state, and authori- ■ ties are cited to sustain the proposition, that a warrant is not returnable at any particular time and continues in force until it is fully executed. We are not satisfied with this view of the law under our statute. It is true that a warrant is not made returnable at any particular time, but section 1755 of the General Statutes of 1901 seems to impose upon the sheriff the duty of making •due return of every writ or process delivered to him to be executed. It is not contemplated that a warrant shall never be returned unless the person thereby •ordered to be arrested should be apprehended and the warrant served. Nor is it the policy of the law that crimes, murder and treason excepted, should become the subject of judicial investigation and punishment many years after they are committed, unless the guilty person absents himself from the state or so conceals himself that process cannot be served upon him, or unless he conceals the fact of the crime.

*405The county attorney is the representative of' the state in criminal prosecutions, and, subject only to a limited direction by the court, controls such actions. No crime can be prosecuted by indictment or information in his county without his signature to the indictment or information. (The State v. Brown, 63 Kan. 262, 65 Pac. 213; Gen. Stat. 1901, §§ 5540, 1777.) The county attorney is also the legal adviser of the sheriff and other county officers. (Gen. Stat: 1901, § 1779.) These things being true, it must be that the county officers, including the sheriff, are justified in acting upon the advice of the county attorney; and when the sheriff, by the direction of the county attorney, returns a warrant which has been placed in his hands for service to the court that issued it, this ends the official connection of the sheriff with such warrant, renders the warrant functus officio, and effects an abandonment of the prosecution by the state.

After the sheriff in this case had returned the warrant to the justice of the peace who issued it there remained nothing to evidence the pendency of an action against the petitioner except the complaint which had been filed before the issuance of the warrant. The legislature of this state has not provided what shall be deemed a commencement of a criminal prosecution, but the mere filing of a complaint and the issuing of a warrant thereon are not sufficient to toll the statute of limitations. Referring to the tolling of the statute, it was said in In re Clyne, Petitioner, 52 Kan. 441, 35 Pac. 23:

“We think the better rule is that the complaint must be filed and the warrant issued within the period limited by the statute; that it must be issued in good faith, and with the intention that it be presently served, and that the officer must proceed to execute it according to its command; that he must make the arrest within a reasonable time and at the first reasonable opportunity offered him.” (Page 448.)

It follows that as the warrant under which the *406sheriff was acting was without vitality when he arrested the petitioner, in March, 1906, and as no fact existed to toll the running of the statute since June 25, 1901, no criminal action could be maintained against the petitioner for the offense alleged to have been committed in 1899. It also follows that the arrest and confinement of the petitioner were illegal.

It is the judgment of the court that the petitioner be discharged.

All the Justices concurring.