No. 18,820; No. 18,871; No. 18,755 | Kan. | Dec 6, 1913
The opinion of the court was delivered by
R. J. Bland, Charles Dixon and Harry Brown were prosecuted for violations of the prohibitory liquor law. In the information ■ each was charged in eleven counts with illegal sales of intoxicating liquors, and in the twelfth count each was charged with maintaining a common nuisance. Upon arraignment the defendants refused to plead, and thereupon a plea of not guilty was entered by the court as to each. The refusal to plead was based on the claim that the information was without validity because it was not entitled as the district court of Cherokee county, “sitting at Galena.” The.same objection, was made to the introduction of testimony, but it was overruled. Upon the testimony offered Dixon was convicted on the first, second, third, fourth, fifth, sixth and twelfth counts and not guilty on five of the counts. Brown was found guilty on the same counts as was Dixon and not guilty on the remaining counts. Bland was found guilty on all of the counts except the eleventh and as to that he 'was found not guilty. Motions for new trials and in arrest of judgment were overruled, and the sentence of the court was that Bland should be-imprisoned in the county jail for thirty days and pay a fine of $100 on each of the eleven counts on which he was convicted. Dixon and Brown were separately sentenced, each to be imprisoned for thirty days and pay a fine of $100 on each of the seven counts upon which they were convicted. In this connection the court adjudged that no attorneys’ fees should be taxed as costs on the convictions, and this ruling was based upon the ground that the prosecutions had been.conducted by the attorney-general and not by the county attorney, and
It is first contended on behalf of the appellants, Bland, Dixon and Brown, that by reason of the absence of the words “sitting at Galena” from the caption of the information the validity of the information! was destroyed. The information was entitled, “State-of Kansas, County of Cherokee, ss: In the District. Court of said County and State,” followed by the names; of the parties. In the act providing for the holding; of terms of the district court in Cherokee county it is enacted that terms of court shall be held at the city of Columbus on the first Monday of January, May and October, and at Galena on the first Monday of March and September and the second Wednesday of November, in each year. It is further provided that the clerk of the court shall maintain offices in Columbus and Galena, and that all actions commenced in the court shall be entitled, “sitting at Columbus,” or “sitting at Galena.” (Laws 1901, ch. 156, §§ 1, 2.) In the criminal code it is provided that the information must contain the title of the action, specifying the name of the court to which it is presented. When the information was attacked application was made to the court by the state to amend the information by adding the words “sitting at Galena,” and for the mere matter of formality an amendment might have been allowed, but evidently the court concluded, and rightly so, that the .omission was not a material one. The information had been filed at Galena and the defendants had been recognized to appear there. They were brought to trial' in Galena in the district court of Cherokee county, where the case was legally instituted. While terms of court are to be held at two places in Cherokee county it is the same court which is held in both places. There
■ A second contention is that the absence of the defendants from a part of the trial defeats the judgments. It appears the defendants were present when the trial began, as well as the counsel who were acting for them. An objection to the admission of any evidence was made in their behalf, based on the defect in the caption of the information. It was argued at length, •,and when it was'overruled counsel withdrew from the case and one of the defendants absented himself until the verdict was returned. -The other two defendants were ■ present throughout the trial and were giveh an -opportunity to cross-examine the witnesses who testi
It follows that neither of the objections of the defendants can be sustained.
The remaining questions arise on the question reserved by the state. The decision of the trial court refusing to award judgment for the costs claimed by the state, or rather for attorneys’ fees to be taxed as costs, is one from which ah appeal may be taken by the state. It falls within the third class provided for, namely, “upon a question reserved by the state.” (Crim. Code, § 283, subdiv. 3; The State v. Zimmerman, 31 Kan. 85" court="Kan." date_filed="1883-07-15" href="https://app.midpage.ai/document/state-v-zimmerman-7886117?utm_source=webapp" opinion_id="7886117">31 Kan. 85,
The state sought to raise the same question in a mandamus proceeding brought against the district judge and the clerk of the district court, but as the state is entitled to have the question determined upon an.ordinary appeal, there is no occasion nor ground for invoking the. extraordinary remedy of mandamus.
Two questions arise on the appeal taken by the state: First, may any fees be allowed to the attorney-general as costs under, statutes, provi ding for the enforcement of the prohibitory liquor law; and second, may fees be allowed upon each count upon which each defendant is convicted? The validity of the statute authorizing the taxation of fees in cases of this character has been attacked and upheld. (In re Ellis, 76 Kan. 368" court="Kan." date_filed="1907-07-05" href="https://app.midpage.ai/document/in-re-ellis-7897401?utm_source=webapp" opinion_id="7897401">76 Kan. 368, 91 Pac. 81; The State, ex rel, v. Dawson, 90 Kan. 829" court="Kan." date_filed="1913-11-08" href="https://app.midpage.ai/document/state-v-waller-7901699?utm_source=webapp" opinion_id="7901699">90 Kan. 829, 136 P. 320" court="Kan." date_filed="1913-11-08" href="https://app.midpage.ai/document/state-ex-rel-atchison-v-dawson-7901701?utm_source=webapp" opinion_id="7901701">136 Pac. 320.)
The statute is now assailed upon a ground not previously considered, namely, that the allowance to the attorney-general of any fees would conflict with section 15 of article 1 of the state constitution, which provides that:
“The officers mentioned in this article shall, at stated times, receive for their services a compensation to be established by law, which shall neither be increased nor diminished during the period for which they shall have been elected.”
The attorney-general is one of the officers mentioned in the article and is subject to its provisions. No question arises as to the last clause of the section, as the compensation of the attorney-general, by the payment ©f the fees challenged, has not been increasd or diminished during the period for which he has been elected. It is contended, however, that the first part of the section, which provides that the officers shall, at stated times', receive for their services the compensation provided by law, prohibits the payment of any compensa
A statute giving compensation in the form of fees payable when judgment is entered and when they have been legally earned comes fairly within the clause providing for paying compensation at stated times. It is compensation that is established by law, and the provision that the fees are earned and to be taxed as costs
Another question has been presented for determination, and that is the amount of fees that are allowable under the statute. The three defendants herein were prosecuted jointly under charges embraced in a single information. On the part of the state it is claimed that a fee should be allowed for each count upon which each defendant was convicted, and on the other side it is contended- that no more should be allowed than if the convictions had been obtained- upon each count against a single defendant. It is provided that the attorney-general’s fees in this class of cases shall be measured, by those allowed to county attorneys. (Gen. S-tat. 1909, § 4378.) In the statute fixing the fees it is provided that:.
“The county attorney shall be allowed a fee of twenty-five dollars upon each count upon which the defendant shall be convicted, and the same' shall be taxed as costs in the case.” (Gen. Stat. 1909, § 4377.)
As will be observed, there can be no compensation unless the prosecution results in a conviction, but the prosecuting attorney is to be allowed a fee upon each count upon which a defendant is convicted. If the defendants had been tried upon separate informations there would be no question .of the right of the prosecuting attorney to a fee for each conviction of each defendant; and will the fact that all the defendants were jointly tried in
Under a statute of Indiana giving the prosecuting attorney a fee for every conviction upon an indictment or presentment on a plea of not guilty several persons were jointly charged for a riot, and it was held that there were as many convictions as there were de
■ “The statute, allows -to that officer ‘for each conviction on plea of guilty $5,’ which ‘shall be taxed against the, defendant’ and collected by the clerk, etc.
“The judgments being.required to be several on the several pleas of the defendants this fee is properly taxable in each judgment. The judgments are the'several convictions on the pleas of guilty entered, and the fee should be taxed as a part of each judgment.” (p. 364.)
In Colorado, where the statute allows the district attorney a fee of $20 for every conviction for felony, it was held that where several charges were made against two jointly and separate trials had and a conviction on each that the district attorney was entitled to a-fee for the conviction of each. (Board of County Com., etc., v. Graham, 4 Colo. 201" court="Colo." date_filed="1878-10-15" href="https://app.midpage.ai/document/board-of-county-commissioners-of-arapahoe-co-v-graham-6560847?utm_source=webapp" opinion_id="6560847">4 Colo. 201.) In Texas a law gave the attorney-general a fee in cases where a judgment against convicted defendants is affirmed. A joint appeal was taken by several defendants with the result that the judgment was affirmed. A judgment- taxing a fee against each defendant was sustained. (Hogg v. The State, 40, Tex. Crim. Rep. 109, 48 S.W. 580" court="Tex. Crim. App." date_filed="1898-12-21" href="https://app.midpage.ai/document/hogg-v-state-3947483?utm_source=webapp" opinion_id="3947483">48 S. W. 580; see, also, The State v. Kinneman et al., 39 Ind. 36" court="Ind." date_filed="1872-05-15" href="https://app.midpage.ai/document/state-v-kinneman-7039027?utm_source=webapp" opinion_id="7039027">39 Ind. 36.)