6 Kan. 94 | Kan. | 1870
The opinion of the court was delivered by
Nor do we think this ruling is at all in conflict with the case of Carl Horne v. The State, 1 Kas., 42, to which we have been referred. The plea of not guilty in that
These reasons render it unnecessary to consider at length the instructions asked by the defendant and refused, for they are the direct converse of those given,
This is a sufficient outline of the testimony in the case to understand what is deemed necessary to say on the point under consideration. The complaint made by Wiley charges no offense on the part of Keokuk; neither did the warrant or mittimus describe any offense known to the law. The substance of the complaint is stated above, and the warrant and mittimus generally follow it; though in this case the mittimus is more verbose, as though the commissioner felt it necessary to say something more than that Keokuk had left the Reserve and was traveling to Washington, to justify his act in sending him to jail. Still, no offense is charged known to any system of laws of which we have any knowledge. The facts are so barren as not to lay the foundation for jurisdiction. The affidavit, warrant, and mittimus afford ample evidence that no criminal charge was preferred, or passed upon, nor a.sufficient pretense of one to challenge judicial discretion; and this conclusion sweeps away the gi-oiind on which the decisions rested, to which the-plaintiff'in error refers in his brief.
The second reason urged why the verdict should have been set aside is, that “ the plaintiff below was an Indian,
I agree with the court upon all questions of law, and of fact, in this case, except, that I do not think that the answer of the defendant Wiley, in the court below, bears the .construction put upon it by this court.