State v. Nulf

15 Kan. 404 | Kan. | 1875

The opinion of the court was delivered by

Valentine, J.:

This was a criminal prosecution for grand larceny. It is insisted on the part of the defendant (who is appellant,) that the court below erred in refusing to quash the information filed in this case, and also in refusing to arrest the judgment. The grounds upon which this claim is based are as follows: 1st, The information is not signed by the proper officer. 2d, The information is not properly verified.

The information was signed by “R. F. Thompson, Prosecuting Attorney,” and he is described in the body of the information as the prosecuting attorney of Ottawa county, state of Kansas. Under the laws of Kansas, all criminal informations must be signed and filed “by the prosecuting attorney of the proper county, as informant;” (Gen. Stat. 831,832, §§ 67, 68, 71.) And also, under the laws of Kansas, the “prosecuting attorney” is always the “county attorney.” (Gen. Stat. 283, 284, §§ 135,136,137.) That is, every criminal action., prosecuted in the name of the state, must be prosecuted by the county attorney, who is the public prosecutor. Therefore, for the purpose of prosecuting criminal actions, the prosecuting attorney and the county attorney is one and the same person. Besides, the first statute above cited, which recognizes the public prosecutor as “prosecuting attorney,” was passed nearly six years after the other, which gives to'him the title of “county attorney.” Therefore, in our opinion a criminal information signed by the public prosecutor, as “prosecuting attorney,” is equally as valid as though it should be signed by him as “county attorney.” He is both. But would the information be void if he should merely sign his name to the information, and give no description of his official character? The statute does not in terms require that he should give any description of his official character. The description does not seem to be very material, for even where he described himself as county attorney for the wrong county the information was nevertheless held sufficient; (The State v. Tannahill, 4 Kas. 117, 118;) and the district court must always take judicial notice of the official character and identity of the public prosecutor. (See authorities cited in appellant’s brief, and 5 U. S. Dig., First Series, 490, paragraphs 151 to 163.) There is no pretense in this case that the information was not signed by the proper public prosecutor. But even if there were, it would not be tenable, for the district court recognized him as such. He prosecuted the defendant until the defendant was finally convicted and sentenced, and he is described in other portions of the record as “R. F. Thompson, county attorney of Ottawa county.” And there is nothing in the record that tends to show that he was not the county attorney. We therefore think that the information in this respect was sufficient.

“The verification of an information by a prosecuting attorney upon information and belief is sufficient.” (The State v. Montgomery, 8 Kas. 351; Laws of 1871, page 279, §3.)

The judgment of the court below is affirmed.

All the Justices concurring.