State v. Whisner

Jan 15, 1886
Reporters:
Before:
Horton

The opinion of the court was delivered by

Horton, C. J.:

The defendant was Convicted upon two separate counts of an information, charging him with violations of the provisions of the prohibitory liquor law. He was sentenced to pay fines accounting in all to $500, and to terms of imprisonment aggregating four months in the county jail of Linn county. From the judgment he appeals. It is urged that the information is insufficient, and that the proceedings against the defendant were not by due course of law. In support thereof, it is said that the information did not give to the defendant the nature and cause of the accusation against him, and that the proceeding against him was not by the ordinary course established at the common law. Neither of these points is well taken.

In prosecutions of this character, it is not necessary to state the kind of liquor sold, or the name of the person to whom *276sold, for the statute expressly and specifically provides that these things need not be stated. (Laws of 1885, ch. 149, § 14; The State v. Schweiter, 27 Kas. 499; The State v. Sterns, 28 id. 154; The State v. Olferman, 29 id. 502; The State v. Shackle, 29 id. 341; The State v. Brooks, 33 id. 708.) In this case, however, the defendant had no reason to complain of being ignorant as to the offenses he was called upon to defend. The testimony of the principal witnesses as to sales of intoxicating liquors made by him was reduced to writing and filed with the information. Therefore, before the trial began, he was notified that John Beckman, whose name was indorsed upon the information as a witnéss, had testified that he had frequently drank whisky and beer in his saloon at different times since March 10, 1885; and that about the first of May, 1885, John Gaines treated him in the saloon to a glass of whisky. He was also notified by the written testimony that John Gaines, whose name was upon the information, had testified that during the spring and summer of 1885 the defendant was keeping a billiard saloon in La Cygne, and that about May 1, 1885, he bought of him, in his saloon, two glasses of whisky, which he poured out; and that about June 15, 1885, he bought of him, in the same saloon, a drink of whisky and cider mixed together, and at the same time saw other parties get and drink the same kind of mixture. Other witnesses, whose names were upon the information, had also testified to specific sales of intoxicating’ liquoi’S made by the defendant in his saloon in 1885, and before the filing of the information, and also the kind of intoxicating liquors sold by him at said times. Of course the defendant had the right to suppose that these witnesses would testify upon the trial to the same facts set forth in the testimony filed with the information. Therefore he was given fair notice of the offenses charged against him; of the kind of intoxicating liquors sold by him; and when he sold the same and to whom he sold the same. In this case, the letter and spirit of § 10 of the bill of rights were complied with, as the defendant was informed of *277the nature and the cause of the accusation against him with great particularity.

4. Statements of witnesses; complaint without cause. 1. Prohibitory liquor law; statements of iimuof oin- ‘ 2. Due process °f law. An attempt is made to question the constitutionality of § 8 of said chapter 149, giving county attorneys power to subpena and examine witnesses concerning violations of that act. From the record, however, this question’ is not before us for decision. None of the witnesses who were subpenaed and examined before the county attorney of Linn county on July 13, 1885, concerning the violations of the provisions of the prohibitory liquor law by the defendant, are here complaining, and the defendant has no right to complain for them. He stands before the court in reference to such matter as if all the parties to the statements filed with the information had voluntarily appeared before the county attorney, and had made before him, at their own instance, the statements. The county attorney clearly had the right, for the benefit of the defendant, to file with his in-’ formation a bill of particulars, or any sworn statements, showing what specific offenses he intended to charge, when he verified the information. All of this enabled the defendant to prepare his defense, and after such statements or evidence had been filed with the information, the defendant .could not be convicted of any offense not therein referred to or set forth. (The State v. Brooks, supra; The State v. Clark, 34 Kas. 289.) It has already been decided by the supreme court of the United States, in Foster v. Kansas, 112 U. S. 201, that the prohibitory liquor law is not repugnant to the constitution of the United States; neither is it in conflict with any of the provisions of the constitution of this state. (Prohibitory Amendment, 24 Kas. 700; Intoxicating-Liquor Cases, 25 id. 751; The State, v. Schweiter, supra; The State, ex rel., v. Foster, 32 Kas. 14.) And we oan perceive no fundamental rights in that system of jurisprudence, of which ours is derivative, which have in any way been disregarded. The words “ due process of law” do not mean and have not the effect of limiting the powers of the state to prosecutions for crime by indict*278ment, “but these words do mean law in its regular; course of administration, according to prescribed forms, and in accordance with the general rules for the protection of individual rights.” (Hurtado v. The People, 110 U. S. 516; Walker v. Sauvinet, 92 id. 90-93.) The law authorizing the filing of in-formations in such a case as this, is not in conflict with our constitution, or the constitution of the United States. (The State v. Barnett, 3 Kas. 250; Cooley on Constitutional Limitations, 5th ed., 376 ; Kalloch v. Superior Court, 56 Cal. 229; Ex parte Wilson, 114 U. S. 417.)

3‘ £y°auedprocess of law. A sufficient information was filed against the defendant; with the information was filed the sworn statements of the important witnesses whose names were indorsed thereon. Thereby the defendant was fully ap- ‡ J , ^ , prised of the nature of the charges against him, so that he might know what he was to answer. The proceeding against him was upon inquiry; he was heard before he was condemned, and no judgment was rendered until after trial. Therefore, there is no force whatever in the assertion “that the proceeding was not by due process of law.”

Section 9 of said chapter 149 provides that when a county attorney files a complaint or information with a statement of any witness that intoxicating liquors are being unlawfully sold, the information may be verified by the county attorney upon information and belief. Sec. 67a of the criminal code, Comp. Laws of ,1879, reads:

“When an information in any case is verified by the county attorney, it shall be sufficient if the verification be upon information and belief.”

6’ sufficient‘verification. It is insisted that as the verification by the county attorney to the information says the same “ is true according to the best of his information and belief,” it does not comply with the requirement of the statute, and therefore the information is not verified. We think the verification a sufficieut compliance with the statute. A person who 1 nil* makes such a verification imports that he has m-formation and is entitled to entertain the belief he expresses, *279and when he swears “to the-best of his information and belief,” he swears‘that he has information- and belief. (Roe v. Bradshaw, Ct. of Exchequer, vol. 1, p. 106.)

s. Jury • chailenge to array-Upon the trial, the defendant interposed a challenge to the array of the regular panel of the jurors, on the ground that the jury had not been selected from the list of tax-payers for each township for the previous year, 1884, according to law. The challenge was overruled, and we think rightly. Qf ^he twenty-six persons summoned to appear, two, Eaber and Coffin, seemed to have been clearly ineligible. These were discharged by the court. Another juror, GL W. Platt, was a resident of Paris township w7hen the list of jurors was returned, and was not on the assessment roll of that township. At the time of the trial he had lived in Paris township only one year, but had lived in Lincoln township, in Linn county, over sixteen years, and was on the assessment roll of Lincoln township in 1884. The neglect or refusal of officers to comply with the. statute in the listing and selection of jurors, must be affirmatively shown; and as in this case only three persons were upon the panel drawn as jurors who were not eligible to be returned on the jury list-, we do not think there was such a palpable disregard of the statute as to require the challenge to the array to have been sustained. (A. T. & S. F. Rld. Co. v. Davis, 34 Kas. 199.) In the case of The State v. Jenkins, 32 Kas. 477, the-jury list for 1883 was drawn directly from the assessment rolls of 1883, not from the preceding year, 1882, at all.

Finally, it is claimed that said chapter 149 is not a law of the state: this upon the alleged ground that it has never received the approval of the governor, that his objections thereto were never considered, and that the bill was never passed by a vote of two-thirds of each house, notwithstanding such objections. The facts are these: The act in question, known as house bill No. 367, entitled “An act to ,prohibit the manufacture and sale of intoxicating liquors,” etc., having in the regular and constitutional mode passed both houses of the legislature, and having been properly signed by the officers *280of both houses, was, on March 7/1885, regularly presented to the governor for his approval; on that day he approved and signed the same, and deposited it at ten o’clock of said March 7th, with the secretary of state. Subsequently, the governor sent a message to the legislature stating that he had approved house bill No. 367, but in his message he made objections to several sections of the bill, and attempted to give his own construction of some of the provisions thereof. It is very doubtful whether his interpretation of the act can be sustained.. (House Journal of 1885, pp. 1221-1222.)

Upon this state of facts, we are clearly of the opinion that the act was properly approved and signed by the governor, and is a law. The constitutional provision bearing on the subject is § 14 of article 2, and is in these words:

“Every bill and joint resolution passed by the house of representatives and senate, shall, within two days thereafter, be signed by the presiding officers, and presented to the governor; if he¡ approve, he shall sign it; but if not, he shall return it to the house of representatives, which shall enter the objections at large upon its journal, and proceed to reconsider the same. If, after such reconsideration, two-thirds of the members elected shall agree to pass the bill or resolution, it shall be sent, with the objections, to the senate, by which it shall likewise be reconsidered, and if approved by two-thirds of all the members elected, it shall become a law. ■ But in all such cases the vote shall be taken by yeas and nays, and entered upon the journals of each house. If any bill shall not be returned within three days (Sundays excepted) after it shall have been presented to the governor, it shall become a law in like manner as if he had signed it, unless the legislature, by its adjournment, prevent its return, in which case it shall not become a law.”

*2817. Approved laws, deposit of. 8. Message approvmg mi. ’ by subsequent message. *280■ This requires the governor, if he does not approve a bill, to return it to the house of representatives, which shall enter the objections at large upon its journal, and proceed to reconsider the same. By the provisions of article 4, ch. 102, statutes of 1879, the secretary of state is charged with the safe-keeping of all enrolled bills and resolutions, and also of the laws of the state; and §5 of article 1 of said chapter 102 spe*281cifically directs that the governor “shall cause all acts and joint resolutions which have become laws or taken effect by his approval or otherwise, to be deposited in the office of the secretary of state without delay.” There is no constitutional or statutory law which requires the governor to return to either house of the legislature any bill after it has received his approval and signature, nQr -g pract;oe> As a matter of courtesy, the governor reports, through his private secretary, to the house of representatives his approval of the bill. This, and nothing more. The bill in this case was never returned by the governor to the house of representatives, and the message which he transmitted to the house, subsequently to his approval, was never attached thereto or made a part thereof. It is not claimed that the governor signed the bill through mistake, inadvertence, or fraud. On the other hand, the facts clearly show that he approved and signed the bill voluntarily, and that he deposited it with the secretary of state as a law of the state. Therefore after the bill had been approved and signed by him, and he had deposited the same with the secretary, it’ passed beyond his control. J 3 r J Its status then had become fixed and unalterable, so far as he is concerned. His subsequent message was no part of his approval or signature, and whether his objections to the bill and his construction thereof after he had approved and deposited the same with the secretary of state were good or bad, is wholly immaterial. The act in controversy was regularly passed by the legislature, was approved and signed by the governor, was deposited with the secretary of state, and therefore has received all the constitutional sanctions required to giveit effect. (Comp. Laws of 1879, ch. 102, articles 1 and 4; Cooley’s Const. Limitations, 5th ed., 184-188; People v. Hatch, 19 Ill. 283; State Constitution, árticle 2.)

The judgment of the district court must be affirmed.

All the Justices concurring.