*1 LOWE KANSAS. 81 Statement of the Case. in that connection is not a frivo plaintiff position destitute of lous foundation. one, Chicago Ins. wholly Life U. S. Needles, Co. it us to That construction put requires pleadings does not foreclosure suit militate against position, as we held in have where a cases, con- repeatedly analogous tract is have claimed to been state impaired legislation, our own we would construction put contract, and then had been whether impaired. inquire Jefferson Black, Bank v. New Orleans 436, 443; Water Co. v. Skelly, 125 U. S. Co., 18, 38; Louisiana & Sugar Wilmington Weldon Alsbrook, 146 U. S. Railroad v. Mobile 279, 293; & Ohio Rail U. road S. 486, v. Tennessee, case It should seems me determined upon I therefor dissent from of its merits, court.
LOWE v. KANSAS. COURT THE ERROR TO THE SUPREME OF STATE OF KANSAS. Submitted No. 174. March [1896] . Decided May 18, 1896. person upon filed, a criminal A oath information for a whose libel is jury, of acquitting who found their verdict the de- fendant, witness, have instituted the probable cause and without with malicious and is thereupon and to be committed thereof, payment until iu accordance the General with Statutes of Kan- 1889, 82, appear sas does of c. and who to have § been denied opportunity offering arguments at the trial the and evidence prosecution, deprived motives cause of is not liberty and the process law, equal property protection due or denied laws, contrary the Fourteenth Amendment Constitution the United States. in the name and behalf of
An information, State of Beekman, the J. Y. county attorney Kansas, by Chatauqua Keifer, E. a criminal libel one County, Sandy von.cLxm—6 TERM, 1895.
Statement of Case. *2 court of was filed the district Lowe, 28,1889, September defend- that the afterwards, and and was State, county the district venue, ant’s motion for transferred to change of Elk trial. county the the sub- Lowe, Annexed to information was affidavit of “ court, scribed and sworn to before the clerk of the that the infor- and averments contained foregoing allegations mation are true.”
The General Statutes of Kansas 1889 contain the follow- ing provisions: section 309 of and By 31, crimes chapter regulating punish-
ments, In all indictments or the libel, prosecutions jury, after received the court, direction the shall have having the at their and determine, discretion, the law the right fact.” section 326 of of criminal
By code chapter establishing “Whenever it shall to the court procedure, appear jury the that case, has been instituted trying with- prosecution out cause and malicious from the name probable motives, shall be and stated in the prosecutor ascertained finding; and such shall be and adjudged pay be committed to the until are may jail the same county paid, be or secured to paid.”
At information, the trial this court, charging after and statutes, these directions as to jury, reading giving the law of further libel, instructed as follows: jury
“You observe will that section 326 aforesaid that provides case find that has been jury may prosecution instituted without and from motives, cause malicious probable and do when the find it is their to state the name jury duty witness in in such their and case prosecuting finding, witness be may in case, the costs be court com- may mitted to until are jail same secured paid and in this are of case, paid; you section to be provision enforced, said are at you ought to and liberty enforce same.” ought “You will observe section above quoted, you
LOWE KANSAS.
Statement of the Case. of both the and the are, discretion, your judges fact of this case; we and, so, can direct being only you we as best law of the case.” returned the verdict: jury “We, following and sworn in the above entitled do our impanelled find oaths the defendant not we do further find guilty; was instituted without and from malicious the name of the prose- witness is S. Lowe.” cuting satisfied ordered that therewith, “being ”
same stand as and for the verdict of there- jury; ordered “that the defendant F. Keifer discharged hence without go day.” Lowe then moved that so much the verdict as found *3 “that this instituted without and from he malicious motives” be and that set aside, a new in that trial for “that the reasons the said S. respect, the trial and Lowe, has not been heard had, already could not be in own either in his heard, counsel, person by the matter mentioned as defence, above touching things stated and contained in said neither verdict, plaintiff being ” defendant this was con- the verdict prosecution; law to the and the and that the instructions trary evidence; were erroneous; aforesaid in arrest of and also moved judg- ment, reasons, the same “he has the because by right, the law land, of the defence, heard his own to a wit- trial as separate liability prosecuting concerning ness in which action, trial he demands hereby separate this court.” further court overruled both and, motions; wit- on the verdict, “the
hearing prosecuting costs of ness, S. all the above Lowe, action, entitled pay the said at taxed and be action, $1053.40,” committed until the a sufficient or executed county jail costs paid bond to them within six months. pay
To all these instructions and and to the judgment rulings, aforesaid, Lowe and tendered bill of exceptions, excepted, which was the allowed by court.
84 Appellant. Counsel for Court which Lowe of the Supreme State, appealed the affirmed the Court judgment, upon Supreme the Commissioners, of section holding constitutionality been settled re 326 of decision of In chapter which the Ebenhaek, 618, Court Kansas, (in Supreme up- of the similar of section constitutionality held provision 18 of before concerning proceedings chapter justices and that, the deci- peace misdemeanors,) according of the Court in sion State v. Kansas, Supreme Zimmerman, were authorized jury expressly both the determine neither fact, the trial court nor State had to interfere appellate power with the verdict. Kansas, for a
A motion was overruled rehearing in an deci- Court State after which, opinion, citing sion in s ease, Ebenhaek? and concluded as follows: proceeded “After a to a defendant the State is not entitled acquitted, new trial before a as to must costs. party witness is so connected with State that, after he cannot de- defendant, acquittal mand a re-trial If evidence before another jury. are taxed after improperly acquittal course a motion the re-tax- defendant, can be made for case, and a ation, be had In this thereon. proper inquiry may of ac- the district court verdict appeal’s approved and also the prosecut- quittal, finding jury against witness; therefore, ing court below pronounced *4 of of the and for the commitment prose- acquittal, — not in witness, accordance with its own cuting opinion Kansas, 769, merely of opinion jury.” Lowe this writ of error, contending out sued thereupon or without of his liberty been property deprived due of been denied the and had law, process equal protection of the of Amendment to the Fourteenth laws, contrary Constitution States. of the United for
Mr. Chandler appellant. George for No appearance appellee. v.
LOWE KANSAS. Opinion of Court. after Gray, case, Me. delivered stating Justice court. of the code criminal State of of Kansas procedure pro- to it shall whenever court or appear vides jury try- has instituted without case, ing malicious the name and from and stated shall ascertained finding; prosecutor to shall be costs, prosecutor until the same are or be committed jail paid, county Gen. Stat. of 1889, Kansas c. secured paid.” § the record deter- presented only question is whether this this enactment, mination of applied this case, Court of Kansas contravenes the Constitution Amendment United Fourteenth Lowe of or liberty property States, by depriving him the law, due by denying equal protection process the laws. the mode of
Whether proceeding, prescribed due law, in was and followed process depends upon was in substantial accord with whether question before the Declaration in Independence, England usage nation, it became a similar cases. in this since country Dent Co., West 272, 277; How. v. Hoboken Murray U. S. 114, 124. Virginia, eo no nomine, first, costs, at while law, the common
By who failed yet were awarded either party, plaintiff amerced clamore. Bac. pro falso recover a civil action 13 How. Woodworth, 372. And Ab. Costs, A; Hay and the courts, from times the legislature England early on a check unjust litigation, order America, put costs to awarded rule, party prevail- not as a only, general have, but infrequently, in a civil action, required ing for their payment, security actual payment from the in a or even in a action, civil plaintiff (cid:127) criminal proceeding. stat- instance, have been required, general For plaintiffs costs of order, ute security or by give special *5 1895. 86 Opinion of the Court. or of a former suit action, to the costs before pay suing again for the Shaw 2 Wallace, same cause. v. Dall. 179; Hurst v. 4 Dall. v. 5 Henderson Jones, 353; Griffin, Pet. 151, intervene, to on Third allowed condition of persons giving be do bond to to costs, may attachment, pay compelled suit bond. payee v. remitting Craig 127 U. S. And in an 761, 771. Leitensdorfer, information to a charitable trust a enforce relator who be required, is not if the information maintained, compelled, pay 1 Smart, General v. Attorney 72, costs. Ves. Sen. and note ; v. 123 Mass. Butler, 301, General Attorney statutes, before the American long Revolu- English costs authorized informers against tion, statute, penal or of an indictment private prosecutors or information, awarded either court, be or absolutely, unless the whom the trial had, before certified that there was judge, for the Stats. 18 cause Eliz. c. 5; Eliz. prosecution. 27 M. 1; III, c. 4 W. & c. Geo. c. 10; 18, 78, 61; Bac. Ab. § § The 1 W. E; King Heydon, v. Bl. Costs, 356; S. C. 3 Burrow, &M. S. 1301; King Commerell, 203; Queen Q. In Steel, 1 B. D. 482. like manner, by act of Congress 5, c. if informer or on May 8, any plaintiff § to whose benefit the or thereof, penal penalty if is directed recovered, accrue, shall discontinue suit or be shall nonsuit same, prosecution, trial a verdict for the shall shall defendant, pass his costs, award the defendant unless such informer or be an officer of the United States authorized plaintiff specially to commence and the court before whom prosecution, or information tried, action shall be shall at record, there was reasonable open certify upon same, case no shall commencing defendant.” Stat. 277. And that pro- vision has reenacted in substantially section 975 Revised Statutes.
If now Kansas, that, the statute question, provided the failure should prosecution, liable and should be committed absolutely v. KANSAS.
LOWE *6 Opinion of the Court. there could have them, or secured been no he until doubt paid if of Or the statute had the statute. made of the him validity court before which unless the the trial liable for costs took that there certified was cause probable place instituting would its have been clear. validity equally prosecution, him the statute is The less than in by imposed liability He is either of the cases not made liable absolutely supposed. nor a of for the is certificate cause costs; probable required from him But burden is thrown liability. protect of want of the defendant as cause, well as probable proving on the of the before malicious part prosecutor, latter the costs. can be with charged at can be no bar,
In the case there doubt of the prosecutor’s for he and made oath to the information, and identity, signed was named in verdict. actor in the Being litigation, of he had no if complain right being obliged, unsuccessful, the conditions the costs upon prescribed previously Whether cause for question legislature. probable as should affecting question prosecution, tried and determined the court or the with jury, after the main of the the defendant, is matter question guilt not of constitutional A convenient practice, right. prosecu- least, tion for at can be tried without libel, hardly exhibiting court and motives of action of the jury grounds It not to witness. be doubted virtue that, he had the statute, to be claimed, right, seasonably evidence, at the trial heard, and introduce case, upon whether he instituted question prosecution malicious motives. record probable transmitted all the oral court omits offered testimony at the and contains to show trial, nothing having any tendency that at denied the the trial was opportunity offering argu- ments or evidence in of his faith and support probable good of the court or instruction cause, any ruling requested It was after the verdict had rendered in subject. with the and after accordance the trial court, “being therewith,” it, satisfied that he for the approved appears, — a first to have asserted aside that time, ground setting
Disputing Opinion: Brown. found in- the verdict ” cause and from motives stituted without malicious could not not and have been heard —that he had at trial. matter Court indeed, Commissioners, Supreme expressed decision in State Zimmerman, based upon
opinion, could not be reviewed finding Kansas, 255. But Kansas, Court of the court. delivered in its motion for State, upon denying the final that the judgment upon grounds put rehearing, *7 the witness connected with State in the was prosecuting that he was not entitled to a trial of the prosecution, separate costs; the of his for another by question liability jury upon that below and pronounced judgment acquittal, the commitment of the in accord witness, and for of the its own ance with merely opinion —not And in 770. there is 47 Kansas, nothing jury.” below, in of the delivered to counte or either opinions not the nance the that to be theory prosecutor right at the trial before the which heard, jury, every upon question their verdict. If evidence, to be determined by any was trial, one of the issues on offered incompetent upon effect must be the other its restricted issue, accordingly in the case of two indicted court, instructions of the persons and tried Sparf separately, together. jointly, pleading States, United 156 U. S. is that conclusion necessary proceeding of the was rendered for the costs against prosecution was due of law. error process present plaintiff like all under cir
As the statute is applicable persons to an individual cumstances, does subject arbitrary him not denied it has exercise equal protection power, S. Missouri, of the laws. Duncan U.
Judgment affirmed. Brown Me. Justice dissenting.
Did the of Kansas require broadly prose- I held liable criminal case should be cutor every u KANSAS. LOWE Brown, Opinion: Dissenting much less hesitation have felt views acceding should the name of the of the since of majority prosecutor from the can either ascertained, original easily complaint, from the record, testimony inspection it is within the and I no doubt that trial, competency make him such costs. responsible legislature But with the statute is that difficulty question him makes only upon contingency responsible was without instituted eause prosecution probable find malicious and authorizes the this fact from the introduced the trial of the testimony principal case, rebut- giving opportunity ting testimony, by proving instituted in and with faith, cause to believe probable good defendant was evidence would be ob- Such guilty. since the testi- very viously incompetent principal him that would tend show cause and mony acquit tend to the malicious motives would also prejudice be inadmissible would him. defendant, Nor make A should B for example, suppose complaint against either reason of the ill- larceny, trial, death, ness or of his witnesses, absence the efforts of B through friends to them be unable to spirit away, might offer B him, course would ac- any testimony against *8 ; and A would be of instituted quitted adjudged guilty having and without not- prosecution maliciously cause, that have been able to show that he might withstanding had made the the statement of these witnesses complaint upon that had seen B take and afterwards they property, seen it in his Such would possession. testimony obviously have been trial of admissible since it would not B, have been it only but would have hearsay, prejudiced seriously him in the it time, At the same would be eyes jury. of A. to the exoneration obviously necessary It is a it fatal to that to the statute undertakes objection in settle one a trial the of two to criminal cause rights parties whose interests are and to two distinct and adverse, dis- try connected and viz., the defendant issues, guilt principal Opinion: Brown,
Dissenting of the innocence the prosecutor upon to testimony applicable of such It seems to me but one issues. clear entirely that, a can be subjected prosecutor and able to being before the lay imprisonment, jury would tend to his he is testimony acquittal, deprived without due of his liberty process law, within property Fourteenth Amendment. meaning that this was a libel, Notwithstanding in that which it expected motives might prosecutor than in would more clearly appear ordinary prosecutions, a worked appears peculiar hardship upon the defendant. As in stated of the court, after opinion the verdict was Lowe rendered, moved to set the same aside far as it bore him, that he had not against ground and could not be heard, his heard, defence, own also moved arrest of the same but judgment upon ground, the court denied motions, both upon appeal Court, held, court in that State following particular Zimmerman, that, under Kansas, section 326 of the Crim Code, inal above the court had no cited, to set aside a power verdict of was acquittal, powerless set equally aside the verdict inasmuch as it against prosecutor, a the verdict In part acquittal. delivering opinion, force of court another universal says: practice courts- to be to, adverted is that when a everywhere ought returns a verdict of not in a criminal jury case the trial guilty no court has set it aside or it in power modify any respect. These a witness were findings in.a a verdict of criminal wherein jury express power by enactment determine both statutory given and the facts. has no court to interfere with power and this court that verdict is as any respect, prejudicial power- less as the below.” In neither the nor principal opinion for a motion inti- was there rehearing mation had been could be heard his whole defence, owm case was rested notwithstanding that ground. *9 that, under the
"t results then construction by given v. KANSAS.
LOWE Opinion: Brown, Dissenting statute, this verdict and Court judgment it is one be, however unjust may prosecutor, to set because it is a aside, no court has power part which the defendant of the verdict acquittal principal one aside and the court cannot set verdict action, further If whole. aside argument without setting one of needed to great injustice satisfy were it. it construction supplied would seem the more is mani- statute hardship unnecessary the Eevised certain sections of with fest when compared a similar States, Thus, object. of the United having Statutes instituted a in certain by section 970, when, prosecutions by is rendered for officer, of customs other collector to the court that there was reason- but claimant, appears shall cause the seizure, for the court able proper cause claimant shall not be and the entered, certificate thereof to In be liable to suit. nor the entitled certificate is or refused case the by granted the trial of the main of both subsequent hearing parties such certifi- States for issue motion the United and upon States Abatoir Wall. United Smith, 82; cate. Averill v. 16 Blatch. Frerichs, U. S. United States Place, 160; 25 Fed. 547; Mexico, City Eep. section 975, A mailing similar contemplated procedure costs, un liable for in a’ the informer or plaintiff penal com States authorized less he be officer of the United an at the court, mence and the open such prosecution, reasonable cause that there was certifies the record it is made same. So section also, by commencing there was duty certify under officer, or other done the collector certain acts the certificate it has decided that granted the verdict whom than the one before another judge before. well as issued, has rendered, after execution cases In all these separate Cox v. Hatch. Barney, the court is evidently contemplated. finding of Kan- Procedure of the Criminal section 327 Indeed, of which authority the section by sas, immediately following *10 189o. Brown, Dissenting Opinion: “ it ease, in this is was entered a provided a shall be with felony officer discharged person charged ifor or examination, recognized committed for taking or no indictment information be offence, preferred be shall the cost him, paid witness, find that there was the court shall probable unless cause for and that same was not insti- instituting prosecution, motives.” This section is for malicious tuted not apparently above made, since the objection obnoxious a contemplates question cause and probable hearing motive for the prosecution. State v. In Neb. Ensign, Court of a similar the one in Nebraska, construing question, exceeded its held “The legislature power. mere said failure,” prove made in a charge evidence of not conclusive the want of complaint or A of malice. convinced of may party the exist- or at a certain ence of shop tippling gambling place, means the morals of the other which are cor- community debased, trial, yet upon rupted peculiar the business, or secret nature of be unable prove Does such a case assume of a the form charge. contest between the accused and the accuser shall ? think We not.” imprisoned
I do think it constitutional to so frame criminal law as to make it incumbent to enter a com- at mulcted in in case the plaint peril being prose- was malicious, cution him giving opportunity inwas faith and showing with complaint good proba- ble cause to believe defendant was guilty.
For I these am reasons unable concur the court.