Home/Supreme Court of Kansas/City of Dodge City v. Day

City of Dodge City v. Day

403 P.2d 1004, 195 Kan. 303, 1965 Kan. LEXIS 397
CourtSupreme Court of Kansas
DecidedJuly 10, 1965
Docket44,166
StatusPublished
Cited by1 cases

This text of 403 P.2d 1004 (City of Dodge City v. Day) is published on Counsel Stack Legal Research, covering Supreme Court of Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
City of Dodge City v. Day, 403 P.2d 1004, 195 Kan. 303, 1965 Kan. LEXIS 397 (kan 1965).

Opinion

The opinion of the court was delivered by

Harman, C.:

This case is here on an appeal by the city of Dodge City from an order of the district court dismissing an action which originated in the police court of that city, a city of the second class, wherein it is stated the appellee was convicted of the offense of driving a motor vehicle while intoxicated in violation of city ordinance.

The following proceedings occurred in the district court:

“The Court: This is Case No. 19,131, is that correct, City of Dodge City v. Charles T. Day?
“Mr. Myers: Correct, Your Honor. The City of Dodge City appears by the City Attorney, Douglas B. Myers.
*304 “Mr. Shultz: The defendant Charles T. Day appears in person and by Donald E. Schultz, his attorney.
“The Court: The Court on examining the file in this case finds that there is no sufficient complaint shown in the file. Does the City propose to amend its complaint at this time.”
“Mr. Myers: The City does not, Your Honor. The City takes the position that under Section 20-25 of the Code of the City of Dodge City, Kansas, 1956, that the complaint as abstracted is sufficient.
“Mr.'Shultz: If it please the Court, unless the City intends to file'a complaint under which the accused can be charged and properly instructed before the jury, we would move to dismiss.
“Mr. Myers: Now Your Honor, prior to consideration of counsel’s motion, and for the record, I would like to state to the Court that in the opinion of the City this case is a trial as before a police court; that the ordinances and rules governing trials in police court control here. As a matter of fact, the record contains no demand for trial by jury. Therefore, we urge the Court that the defendant is not at this time entitled to a trial by jury; secondly, the complaint was properly brought initially under the Ordinances of the Municipality of Dodge City, which we contend are sufficient here, and we ask .the Court to proceed to trial to the Court.
“The Court: Well, the matter as to whether he is entitled to a jury or not is a matter that would not come up in case the Court quashed the proceeding on the basis of there being no proper complaint before the Court. The record here shows that the complaint was on the oath of the ‘PD’, which I suppose is police department, and not any particular individual, and it doesn’t recite the individual’s name except in the heading of the transcript from Police Court, and it merely refers to the ordinance as ‘VCO 1451’ and the initials or letters ‘DWT, which is not in the language of the ordinance or any thing but just colloquialism or jargon, and therefore the Court will have to quash this action unless the City wishes to file an amended complaint setting forth the complaint in specific terms.
“Mr. Myers: Will the Court set a time for the filing of an amended complaint, if it is the decision of the City to so file?
“The Court: It will have to be done immediately.
“Mr. Myers: The City will not file an amended complaint, Your Honor.
“The Court: Case dismissed.
“Mr. Shultz: Thank you, Your Honor.”

In its formal order dismissing the action the court found that “no sufficient complaint is on file with the court.”

The record before the district court, purportedly a transcript of the proceedings before the police court, can best be understood by reproducing it as an appendix hereto.

Appellant first urges that the trial court erred in its finding that the complaint was not sufficient in that an oral complaint is proper under the applicable city ordinances and also under our statutes.

Trial in a police court of a city of the second class is upon the *305 complaint alleged against the defendant (K. S. A. 14-808) and it is the making of the complaint alleging a violation of a municipal ordinance which gives that court jurisdiction.

K. S. A. 14-804 provides:

“All prosecutions for violating any city ordinance shall be entitled ‘The city of _ against _’ (naming the city and the person or persons charged), and the police judge shall state in his docket the name of the complainant, the nature or character of the offense, the date of the trial, the names of all witnesses sworn and examined, the finding of the court, the judgment or fine and costs, the date of payment, the date of issuing commitment, if any, and every other fact necessary to show the full proceedings in such case.
“The complaint, when made by the marshal, assistant marshal or regular policeman against any person arrested without process and in custody, need not be in writing; but when the accused is not in custody, the complaint shall be in writing and sworn to, before a warrant be issued for his arrest. In no case shall a judgment of conviction be rendered except upon sufficient legal testimony given on a public trial or upon a plea of guilty made in open court.” (Our italics.)

Thus we see that by express statutory authority a written complaint is not required in those cases in which a person has been arrested by a police officer without process and remains in custody of such officer, and the result is that in such situations an accused may be tried in police court upon verbal complaint.

On an appeal to district court from a conviction in a police court the district judge for the time being is substituted for the police judge and in effect sits as the police judge. (City of Fort Scott v. Arbuckle, 165 Kan. 374, 196 P. 2d 217.)

From all this does it necessarily follow that the district court in the instant case erred in finding that “no sufficient complaint is on file with the court”? We think not. We should keep in mind we are not here concerned with the nature or the validity of the arrest in this case, nor the manner of prosecution in the police court; we are concerned only with the propriety of the action of the district court. All the district judge had before him was the document appended hereto. He commented on its nature and little can be added to those comments. The document speaks for itself. The most that can be said for it is that it is a transcript of the purported record of the proceedings required to be kept in the police court. Insofar as stating what the alleged offense in the district court was, whether orally complained of or otherwise, it is totally deficient. It simply did not state what the complaint was or what the ap *306 pellee did that constituted the alleged offense. In other words, the transcript contained no complaint, there was no complaint before the trial court, and the trial court in effect so ruled. It should be noted that on an appeal of a criminal prosecution for violation of a municipal ordinance there is trial by jury unless expressly waived by appellant therein (K. S. A.

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Cite This Page — Counsel Stack

Bluebook (online)
403 P.2d 1004, 195 Kan. 303, 1965 Kan. LEXIS 397, Counsel Stack Legal Research, https://law.counselstack.com/opinion/city-of-dodge-city-v-day-kan-1965.