Little v. Evans

41 Kan. 578 | Kan. | 1889

The opinion of the court was delivered by

Valentine, J.:

The only question involved in this case is one with reference to the validity or invalidity of a certain judgment rendered in a case of misdemeanor by a justice of the peace of Johnson county against William M. Evans, the defendant in error, who was the prosecuting witness in that case. Evans claims that such judgment is void for the reason among others that justices of the peace in eases like the present have no power under the laws of Kansas to render a judgment against the prosecuting witness. There is no pretense that the judgment in this case was rendered under § 326 of the criminal code, or under § 18 of the act relating to the jurisdiction and procedure before justices of the peace in cases of misdemeanor, or that any such judgment could-have been rendered in this case under such sections; and this for the reason, as we suppose, that there was no finding made in the case, and could not have been under the real facts of the ease; that the aforesaid prosecution was instituted without probable cause or from malicious motives — an essential thing to be brought about in order to authorize a judgment to be rendered against the prosecuting witness under the aforesaid sections. The only finding' that was made in this case was that contained in the general verdict of the jury that the defendant in the misdemeanor case, Henry Avery, was “not guilty and the judgment that was rendered in the case was one rendered by the justice of the peace discharging the defendant, Avery, and the one rendered by the justice of the peace against Evans, the prosecuting witness, which reads as follows:

“It is therefore considered and adjudged that the prosecuting witness, Wm. M. Evans, pay the costs of this case herein, taxed at $137.25, and that an execution be issued on said Vm. M. Evans to satisfy said costs in said case.”

This judgment was undoubtedly rendered under §13 of chapter 39 of the General Statutes of 1868 as amended by §1 of chapter 127 of the Laws of 1885. (Comp. Laws of 1885, p.442.) The original title to the act of 1868, published as chapter 39 of the General Statutes of 1868, reads as follows: “An act fixing the fees of certain officers and persons therein named.” The title to the act of 1885, published as chapter 127 of the Laws of 1885, reads as follows: “An act relating to fees in justices’ courts, and amendatory of §13 of chapter thirty-nine of the General Statutes of eighteen hundred and sixty-eight.” Section 13 of said chapter 39, as amended by chapter 127 of the Laws of 1885, reads as follows:

“Section 13. Justices of the peace shall receive the following fees: [here follows a list of justices’ fees, and of justices’ fees only.] Provided, That in all cases where any person shall be arrested, charged with felony, and the court shall decide that there were not reasonable grounds for such arrest, and when any person charged with an offense less than a felony shall be discharged for want of sufficient evidence to convict or bind over, the prosecuting witness shall be liable for costs.”

It will be seen from an inspection of the above §13, that no authority is given by it to any court to render a judgment against the prosecuting witness. In this respect this section is unlike §§326 and 18 above referred to, for these two sections expressly give such authority. -And surely unless the authority is given either expressly or by the clearest of implications, it should not be held as having any existence. Avery was tried twice in the present misdemeanor case. On the first trial the jury disagreed, and on the second trial the verdict was only that the defendant was not guilty, and there was not only no finding or decision on either trial by either the court or the jury that the prosecution, was instituted by the prosecuting witness without probable cause, or without reasonable grounds, or from' malicious motives, but the failure on the part of the jury on the first trial to agree upon a verdict would indicate that there might have been at least some reasonable grounds for believing that the defendant was guilty; and even the second jury did not readily agree. Section 13, above referred to, merely enacts that where the evidence in a misdemeanor case is not sufficient to convict, the prosecuting witness “shall be liable for costs,” and it does not give any power or authority to any court to render a judgment in the same case or indeed in any case against the prosecuting witness. The power, if any exists, must be sought for elsewhere. Section 13 merely renders the prosecuting witness “liable for costs” where the evidence is not sufficient to convict. It might possibly be proper, in a proper case coming under that section, for the justice of the peace trying the case to state that the prosecuting witness is liable for costs, but the justice should not go further and render such a judgment for costs against the prosecuting witness as could be enforced against him by an ordinary execution. There are many statutes making officers and others “liable” under particular circumstances, but where the statute only makes the officer or other person “liable” and does not specifically and expressly authorize a judgment to be rendered against him upon the happening of such liability, we do not think that any judgment could properly be rendered against him because of such liability except in an action regularly brought against him to enforce the liability by the persons in favor of whom the 'liability should exist. No statute authorizes a judgment to be rendered against the prosecuting witness under the aforesaid §13.

The cases of Shields v. Shawnee County, 5 Kas. 589, and The State v. McGillvray, 21 id. 680, are referred to as asserting a contrary doctrine. Now all that was decided or could have been decided in the first case was that the county of Shawnee was not liable for costs, and the second case purports merely to follow that case. Whatever is said in those two cases contrary to the views herein expressed, if any such thing is in fact said, is hereby overruled.

The court below held that the judgment of the justice of the peace against the prosecuting witness for costs was void, and the judgment of the court below will be affirmed.

All the Justices concurring.