In re Stoneberger

Supreme Court of Kansas

In re Stoneberger

31 Kan. 638

DecidedJanuary 15, 1884

StatusPublished

This text of 31 Kan. 638 (In re Stoneberger) 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

In re Stoneberger, 31 Kan. 638 (kan 1884).

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Opinion

The opinion of the court was delivered by

Horton, C. J.:

It appears in this case that on February 13, 1884, John Stoneberger filed with A. Stevens, a justice of the peace of Hodgeman county, a complaint against D.‘ M. Jessup, alleging that the latter .had -committed an assault and battery upon him. Jessup was arrested, and brought before the justice to answer the complaint. He demanded an immediate trial, which the justice refused, and granted a continuance until February 19 following. On February 19, 1884, the defendant obtained a change of venue, and the cause was sent to J. D. Mackay, another justice of the peace of the county, for trial. When the case was called before Mackay, a motion was made by the defendant, Jessup, to discharge him upon the ground that the complaint did not [639]*639charge any offense. This'motion was sustained, and thereupon the defendant was discharged. The defendant’s attorney then asked that the costs be taxed against the complainant, whereupon the latter made a verbal statement, and the defendant, Jessup, also made a verbal statement. Neither of the statements of the parties was under oath. Thereupon the justice made a finding that the complaint was without probable cause, and rendered judgment against the complainant for all the costs, and ordered him committed to the jail of Ford county until the costs were paid.

The complaint was sufficient for the trial of the defendant for an assault and battery. The statement of the defendant in court showed that he was guilty of the charge made against him. The judgment of the justice against the complainant for costs and committing him to jail was without authority of law, and void. There is no statute authorizing a justice to adjudge costs against a complainant in a criminal proceeding before him where the complaint is disposed of by a motion to discharge the defendant on the ground that no offense is charged therein. (Comp. Laws of 1879, ch. 83, § 19; The State v. Meinhart, 9 Kas. 98; The State v. Campbell, 19 id. 481; The State v. Dean, 24 id. 53; Bonney v. Van Buren Co., 2 G. Greene, 230.)

The petitioner will be discharged.

All the Justices concurring.

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The opinion of the court was delivered by

Horton, C. J.:

It appears in this case that on February 13, 1884, John Stoneberger filed with A. Stevens, a justice of the peace of Hodgeman county, a complaint against D.‘ M. Jessup, alleging that the latter .had -committed an assault and battery upon him. Jessup was arrested, and brought before the justice to answer the complaint. He demanded an immediate trial, which the justice refused, and granted a continuance until February 19 following. On February 19, 1884, the defendant obtained a change of venue, and the cause was sent to J. D. Mackay, another justice of the peace of the county, for trial. When the case was called before Mackay, a motion was made by the defendant, Jessup, to discharge him upon the ground that the complaint did not [639]*639charge any offense. This'motion was sustained, and thereupon the defendant was discharged. The defendant’s attorney then asked that the costs be taxed against the complainant, whereupon the latter made a verbal statement, and the defendant, Jessup, also made a verbal statement. Neither of the statements of the parties was under oath. Thereupon the justice made a finding that the complaint was without probable cause, and rendered judgment against the complainant for all the costs, and ordered him committed to the jail of Ford county until the costs were paid.

The complaint was sufficient for the trial of the defendant for an assault and battery. The statement of the defendant in court showed that he was guilty of the charge made against him. The judgment of the justice against the complainant for costs and committing him to jail was without authority of law, and void. There is no statute authorizing a justice to adjudge costs against a complainant in a criminal proceeding before him where the complaint is disposed of by a motion to discharge the defendant on the ground that no offense is charged therein. (Comp. Laws of 1879, ch. 83, § 19; The State v. Meinhart, 9 Kas. 98; The State v. Campbell, 19 id. 481; The State v. Dean, 24 id. 53; Bonney v. Van Buren Co., 2 G. Greene, 230.)

The petitioner will be discharged.

All the Justices concurring.

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31 Kan. 638, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-stoneberger-kan-1884.

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