59 Kan. 671 | Kan. | 1898
Warren Crandall, j$„, seeks release from imprisonment through the writ of habeas corpus. The history of the prosecution and the imprisonment is briefly as follows : On May 3, 1897, Lizzie Hinds
On September 7, 1897, the petitioner appeared, but the county attorney of Coffey County declined to file an information against him, and filed his reasons in writing with the clerk of the court, why no information would be filed; and upon his motion, the district court dismissed the prosecution and discharged the petitioner. On the same day-of the dismissal, a lawyer who had been employed by the prosecuting witness, moved the court to reinstate the case against the petitioner. This motion was taken under advisement, and on September 30,1897, the motion was sustained, and an attempt was made to reinstate the case. The petitioner was again taken into custody upon a commitment issued by the clerk of the court, and failing
On February 10, 1898, after a trial upon the issues joined, the petitioner was again discharged by the probate court. On February 23, 1898, an amended information was filed, charging the petitioner with the same offense, in substantially the same language as that employed in the complaint. A bench warrant was issued for his arrest and his bond fixed at $2500. Having been placed under arrest, he applied to this court for release on the writ of habeas corpus.
The contention of the petitioner is that no felony was charged against him ; that the preliminary examination had and the binding over to the District Court were invalid; and that the District Court acquired no jurisdiction by reason of the proceedings before the justice of the peace; that if the filing of the information in the District Court is to be treated as the commencement of a prosecution, it was then barred by the Statute of Limitations, and further, that
In the argument before us it is urged that it charges a violation of section 14, of the Crimes Act, which provides that ‘ ‘ the wilful killing of any unborn quick child by any injury to the mother of such child, which would be murder if it resulted in the death of such mother, shall be deemed manslaughter in the first degree.” To constitute an offense under this section it must be alleged that the acts done and the injury inflicted on the mother, were of such a character as would have been murder if the death of the mother had resulted therefrom. Even murder in the lowest degree would require that the injuries inflicted, and the attack on the life of the mother were purposely and maliciously done and made. There is nothing approaching that in the charge, and it is clear that it falls far short of alleging a violation of that section, or of charging a felony under any other section of the Crimes Act.
Petitioner discharged.