State v. Blackman

32 Kan. 615

• Court: Supreme Court of Kansas
• Decided: July 15, 1884
• Status: Published

Opinions

The opinion of the court was delivered by

Valentine, J.:

This was a criminal prosecution against the defendant for selling intoxicating liquors in violation of the prohibitory liquor law of 1881. There were twelve counts in the information, and the defendant was found guilty and sentenced on seven of such counts. He now appeals to this court. His counsel present three points for consideration.

The first point presented is, that “the evidence in this case was that of informers, and the court should have instructed the jury to receive such evidence with the greatest caution and distrust.” Now it does not appear from the record of the case that any portion of the evidence introduced on the trial was that of an informer; and hence for this reason, if there were no others, the foregoing-point is not well taken. Besides, the court below did give an instruction with regard to the testimony of informers, and presumably gave all that was necessary under the facts of the case; and further, the defendant was acquitted upon some of the counts of the information, and perhaps upon those very counts with reference to which it is claimed that the evidence was that of informers.

As a second point, counsel for defendant state in their brief that “the court below erred in permitting J. M. Stilwell to testify, for his name was not on the back of the information.” The facts with reference to this matter are, that the county attorney, in attempting to place the name of Stilwell on the information, by mistake wrote it J. ~W. Stilwell instead of J. M. Stilwell, merely making a mistake in only the initial letter of Stilwelhs middle name. J. M. Stilwell was the person intended. Under such circumstances there was certainly no error committed by the court in permitting Stilwell to testify. Besides, see The State v. McKinney, 31 Kas. 570, 576.

The third and last point made by counsel for the defendant is, that the verification of the information is not sufficient. It appears that the information was verified by the county attorney, who, after being duly sworn, stated in his verification, “That the several allegations contained in the forgoing information are, according to the best of his knowledge, information and belief, true in substance and in fact.” This point was not raised in the court below, and hence the defendant is not in any condition to raise it in this court. The record shows that the defendant in the court below waived arraignment, pleaded not guilty to the information, and went to trial upon the merits of the action, without making any objection to the sufficiency of the information or to its verification. The defendant, therefore, waived all irregularities with reference to the sufficiency of the verification. (The State v. Otey, 7 Kas. 69; The State v. Ruth, 21 id. 583; The State v. Adams, 20 id. 311.)

Also, § 12 of the prohibitory liquor law provides that the county attorney may verify the information or complaint by simply stating in the affidavit for that purpose “that he believes the facts stated in such complaint to be true.” (Laws of 1881, p.240, §12.) Is not this section valid? And may not an information or complaint and a verification under it be valid? We are referred to the case of The State v. Gleason, ante, p. 245, as holding otherwise; but that decision does not hold otherwise. The substance of that decision is merely that no warrant for the arrest of any person can properly be issued except upon probable cause supported by the oath or affirmation of some person competent to testify, (§15 of the Bill of Eights of the Constitution of Kansas,) which oath or affirmation must be positive, and not manifestly founded upon mere information, hearsay, or belief. But the question in the present case is not whether a warrant was properly issued, or not, or whether a warrant or an arrest thereunder is valid, or not; but the sole question is simply whether the information as verified by the county attorney is sufficient. Now it is our opinion that an information or complaint under the prohibitory liquor law of 1881, verified in accordance with §12 of such law, is, so far as the verification is concerned, sufficient for every purpose except merely for the purpose of issuing a warrant for the arrest of the defendant. Such an information thus verified may properly be filed by the county attorney; a trial may properly be had thereon; a conviction may properly follow the trial; and the defendant may properly be sentenced upon such conviction. And an information thus verified is not subject to a motion to set it aside or to quash it merely because of the supposed insufficiency of the verification; nor may the case be dismissed, or the judgment arrested, or a new trial granted, for any such reason; and the county attorney may not only rightfully file informations under the prohibitory liquor law, and verify them in accordance with §12 of such law, but it is his duty in many cases to do so, and it is always his duty to obey the provisions of that section. Of course, before a warrant is issued for the arrest of the defendant an oath or affirmation within the .meaning of §15 of the bill of rights should be made, showing probable cause to believe the defendant guilty; but if no such oath or affirmation is made or filed, but nevertheless the defendant without objection pleads to the merits of the action and goes to trial, he waives all irregularities in the verification of the information, and cannot afterward be heard to question the regularity or validity of any proceeding in the case, if he urges no other objection than that such verification is insufficient.

The judgment of the court below will be affirmed.

Hubd, J., concurring.