34 Kan. 1 | Kan. | 1885
The opinion of the court was delivered by
On February 14, 1885, Luther 0. Challiss, a private citizen, presented to the Honorable David Martin, judge of the district court of the second judicial district, a complaint in writing, and under oath, charging Robert Forbriger with the commission of a public offense, a misdemeanor, under-§210 of the crimes act, for which offense the punishment may be a fine not exceeding $500 and imprisonment in the county jail not exceeding one year. The complainant demanded of the judge that a warrant should be issued for the arrest of Forbriger, and that the judge should take cognizance of the complaint and hear and determine the case. The judge, however, refused so to do, and from such refusal a supposed appeal, ostensibly by the state, has been taken to this court.
But even if we should consider that the proceeding in such a case is more than a preliminary examination, and that the judge of the district court is invested by these sections, and § 1, article 1, of the justices’ misdemeanor act, with the same jurisdiction that a justice of the peace would have in a like case, and with the power to hear and determine the case finally upon its merits, still, neither the state nor any private citizen prosecuting in the name of the state would have any appeal to the supreme court, or to any other court, but the defendant only would have such appeal, and his appeal would not be to the supreme court, but to the district court. (Justices’ Misdemeanor Act, art. 4, §21.) The defendant, however, in this case is charged with the commission of a misdemeanor in which the punishment cannot exceed a fine of $500 and imprisonment for one year, and there is no necessity for a preliminary examination in such a case, even if a preliminary examination could be had at all. (In re Donnelly, 30 Kas. 191, 424.) And only justices of the peace and the district courts have original jurisdiction to hear and determine such cases upon their merits. (In re Donnelly, supra; Justices’ Misdemeanor Act, art. 1, § 1.) District judges have no such jurisdiction in such cases. Previous to March 1, 1869, justices of the peace had exclusive original jurisdiction of this class of cases, but at that time the law was so changed that the district courts now have equal and concurrent jurisdiction with justices of the peace; but there is no provision anywhere in the statutes authorizing any other court or any judge or magistrate to take original jurisdiction of such cases. Hence the jurisdiction is exclusive in justices’ courts and in the district courts. Besides, in the district courts, all criminal prosecutions must be carried on upon in-formations filed by a public prosecutor, or indictments found by the gz’and juzy, (The State v. Brooks, 33 Kas. 708,) and not upon complaints filed by a merely private citizen.
We think the appeal in this case must be dismissed, for the reason that no appeal in this class of cases lies to the supreme •court. If, however, we should go further, in this case, and investigate the merits, which it has not been our intention to do except incidentally, we would probably reach the same conclusion that the judge of the district court did.
Appeal dismissed.