32 Kan. 615 | Kan. | 1884
Lead Opinion
The opinion of the court was delivered by
This was a criminal prosecution against the defendant for selling intoxicating liquors in violation of the prohibitory liquor law of 1881. There were twelve counts in the information, and the defendant was found guilty and sentenced on seven of such counts. He now appeals to this court. His counsel present three points for consideration.
The first point presented is, that “the evidence in this case was that of informers, and the court should have instructed the jury to receive such evidence with the greatest caution and distrust.” Now it does not appear from the record of the case that any portion of the evidence introduced on the trial was that of an informer; and hence for this reason, if there were no others, the foregoing-point is not well taken. Besides, the court below did give an instruction with regard to the testimony of informers, and presumably gave all that was necessary under the facts of the case; and further, the defendant was acquitted upon some of the counts of the information, and perhaps upon those very counts with reference to which it is claimed that the evidence was that of informers.
As a second point, counsel for defendant state in their brief that “the court below erred in permitting J. M. Stilwell to testify, for his name was not on the back of the information.” The facts with reference to this matter are, that the county attorney, in attempting to place the name of Stilwell on the information, by mistake wrote it J. ~W. Stilwell instead of J. M. Stilwell, merely making a mistake in only the initial letter of Stilwelhs middle name. J. M. Stilwell was the person intended. Under such circumstances there was certainly
The third and last point made by counsel for the defendant is, that the verification of the information is not sufficient. It appears that the information was verified by the county attorney, who, after being duly sworn, stated in his verification, “That the several allegations contained in the forgoing information are, according to the best of his knowledge, information and belief, true in substance and in fact.” This point was not raised in the court below, and hence the defendant is not in any condition to raise it in this court. The record shows that the defendant in the court below waived arraignment, pleaded not guilty to the information, and went to trial upon the merits of the action, without making any objection to the sufficiency of the information or to its verification. The defendant, therefore, waived all irregularities with reference to the sufficiency of the verification. (The State v. Otey, 7 Kas. 69; The State v. Ruth, 21 id. 583; The State v. Adams, 20 id. 311.)
Also, § 12 of the prohibitory liquor law provides that the county attorney may verify the information or complaint by simply stating in the affidavit for that purpose “that he believes the facts stated in such complaint to be true.” (Laws of 1881, p.240, §12.) Is not this section valid? And may not an information or complaint and a verification under it be valid? We are referred to the case of The State v. Gleason, ante, p. 245, as holding otherwise; but that decision does not hold otherwise. The substance of that decision is merely that no warrant for the arrest of any person can properly be issued except upon probable cause supported by the oath or affirmation of some person competent to testify, (§15 of the Bill of Eights of the Constitution of Kansas,) which oath or affirmation must be positive, and not manifestly founded upon mere information, hearsay, or belief. But the question in the present case is not whether a warrant was properly issued, or not, or whether a warrant or an arrest thereunder is valid, or not; but the sole question is simply whether the information as verified by the county attorney is sufficient. Now it is our
The judgment of the court below will be affirmed.
Concurrence Opinion
I concur in the affirmance of the judgment of the trial court, and of all that is stated in the foregoing opinion.
When the case was called, the defendant waived arraignment, pleaded not guilty, and went to trial upon the merits of the action. No objections were taken to the issuance of the warrant upon an insufficient verification, and no complaint was
When this motion was overruled, he objected to being tried, and declined to plead or make any defense.
