44 Kan. 489 | Kan. | 1890
Opinion by
On the 18th day of July, 1889, 3). Wesner filed a complaint before H. D. Grant, a justice of the peace of Montgomery county, Kansas, charging Francis Craddock with having on the 22d of June, 1889, at the county of Montgomery and state of Kansas, “unlawfully and willfully disturbed the peace'Cof him the said I). Wesner, contrary to the statute, and against the peace and dignity of the state of JCansas. A warrant issued, describing the offense in the language of the statute, upon which Craddock was arrested and brought before said justice, where after several continuances he was tried by a jury of four and convicted, and was thereupon sentenced to pay a fine of one dollar and costs. Craddock appealed to the district court, where he filed a plea in abatement, which was overruled. He then applied for a continuance, which was also overruled, and the case brought to trial before the court and a jury of twelve, which trial resulted in a conviction of the defendant. Motion for a new trial was presented and overruled, and defendant sentenced to pay a fine of ten dollars and costs; from which judgment the defendant appeals to this court, and alleges that the judgment of the trial court should be reversed, for the following reason: That the complaint and warrant are void, for the reason that no public offense is charged in either. The section of the statute under which the prosecution is brought, reads as follows:
“Every person who shall willfully disturb the peace and quiet of any person, family or neighborhood, shall upon con*490 viction thereof be fined in a sum not exceeding one hundred dollars, or by imprisonment in the county jail not exceeding three months.”
It will be seen that the complaint follows the language of the statute in charging the offense, except that the complaint alleges that the appellant unlawfully as well as willfully disturbed the peace of the complainant. The charge against the appellant is a petty misdemeanor. We think the complaint and warrant in this case must be held to be sufficient. (Gen. Stat. of 1889, ¶5173; The State v. McGaffin, 36 Kas. 315.)
The appellant complains that in the trial in the justice’s court the jury were not legally impaneled, and that the verdiet of the jury thereon was void for uncertainty. The judgment of the court, including the verdict of the jury, was vacated by the defendant’s appeal to the district court, where he had a trial de novo; hence these errors, if they existed as alleged, are not the subject of review here. The appellant filed a plea in abatement in the district court, which was overruled, and of which ruling he complains. We think the plea in abatement was properly overruled. It raised no question except possibly the question of the sufficiency of the complaint and warrant, and that question should have been raised by motion to quash. The other matters alleged in the plea do not constitute grounds for a plea in abatement,
The appellant alleges that the court erred in refusing his application for a continuance. We think the court very properly refused the application for continuance. The alleged evidence set up in the affidavit in support of the application was immaterial, if not incompetent. It is alleged that the court erred in the admission of testimony; that the court misdirected the jury in matters of law; and that the verdict is not sustained by evidence. But as the instructions of the court are not in the record, and as none of the evidence is preserved, these complaints may not be considered.
We recommend that the judgment of the court below be affirmed.
By the Court: It is so ordered.
