Jackson v. State

4 Kan. 150 | Kan. | 1867

By the Court,

Kingman, C. J.

The appellant was tried and convicted of horse stealing, at the June term, 1866, of the district court of Miami county.

It appears by the record that the only charge against the appellant, at the time the trial commenced, was an affidavit of one Baptiste Peoria, who had no official character.

The' defendant’s counsel objected to any evidence' being received under that affidavit. The court allowed the county attorney to then sign the affidavit and introduce his evidence; to which, appellant excepted. And the question raised by this exception, is the only one we shall consider in the cause.

The criminal code (§95) designates as one of the necessary requisites of an indictment, that it must appear “that the indictment was found by the grand jury of the county where the court is held.” The law of 1864 applies the provisions of the code of criminal procedure to prosecutions on- information, as far as may be.

The same law declares that the information shall be presented by the prosecuting attorney of the county, as informant, who shall subscribe his name thereto. Jjntil such an information is filed, there can be no trial, and to receive evidence without such information, or an indictment, is so clearly erroneous — so manifestly against all just ideas of the administration of justice, that it needs no elucidation.

The court below undoubtedly must have held that the paper filed, was such an information. Is it % It purports to be done by Baptiste Peoria, and commences as an affidavit; declares that he is the prosecuting witness in the case, and gives the information to the court that Jackson, with others, is guilty of the crime of larceny. The affidavit is signed by him, and he also again signs the certificate to.the oath. It nowhere appears that the county attorney had anything to do with the case, or knew of its existence till the trial began. It purports on its face, and by its attestation, to be the accusation of Baptiste Peoria; and the subsequent signing of the same by the county attorney, in no way changes the character of the paper. No doubt that by the act, the county attorney intended to give it an official character, but he fails to do it, for it only makes it officially known to the court that the charge is brought, the accusation made, and the prosecution conducted by a private person.

A trial under such a paper could not be plead in bar of another charge for the same offense, and even if he could be said to have sufficient notice of the particular offense charged, still he had a right to have it so made that he could not be twice tried on the same charge.

It is urged that the objection to the paper should have been by motion. There was nothing to move against. As an affidavit, it was good ; as an information, it was nothing, and the defendant took the first legal occasion to present his objection.

With every desire to construe the code so as to avoid the technicalities that had grown into the common law, and make it serve the purposes of substantial justice in the spirit of its makers, we are unable, by any construction, to hold that the trial upon such a paper is right or just. A person accused has not only a right to know “the nature and cause of the accusation against him,” but to have it made by the proper authorities, before he shall be held to answer. We have purposely omitted to consider the propriety of permitting the signing of the paper after the trial had commenced, because, in our view, it did not change the nature of the indictment, and therefore it is not necessary to inquire whether it was rightly done, or not.

The judgment of the court below must be set aside, and the case sent back for further proceedings.

All the justices concurring.