State v. Bland

136 P. 947, 91 Kan. 160, 1913 Kan. LEXIS 354

• Court: Supreme Court of Kansas
• Decided: December 6, 1913
• Docket: No. 18,820; No. 18,871; No. 18,755
• Status: Published

Opinion

The opinion of the court was delivered by

Johnston, C. J.:

R. J. Bland, Charles Dixon and Harry Brown were prosecuted for violations of the prohibitory liquor law. In the information ■ each was charged in eleven counts with illegal sales of intoxicating liquors, and in the twelfth count each was charged with maintaining a common nuisance. Upon arraignment the defendants refused to plead, and thereupon a plea of not guilty was entered by the court as to each. The refusal to plead was based on the claim that the information was without validity because it was not entitled as the district court of Cherokee county, “sitting at Galena.” The.same objection, was made to the introduction of testimony, but it was overruled. Upon the testimony offered Dixon was convicted on the first, second, third, fourth, fifth, sixth and twelfth counts and not guilty on five of the counts. Brown was found guilty on the same counts as was Dixon and not guilty on the remaining counts. Bland was found guilty on all of the counts except the eleventh and as to that he 'was found not guilty. Motions for new trials and in arrest of judgment were overruled, and the sentence of the court was that Bland should be-imprisoned in the county jail for thirty days and pay a fine of $100 on each of the eleven counts on which he was convicted. Dixon and Brown were separately sentenced, each to be imprisoned for thirty days and pay a fine of $100 on each of the seven counts upon which they were convicted. In this connection the court adjudged that no attorneys’ fees should be taxed as costs on the convictions, and this ruling was based upon the ground that the prosecutions had been.conducted by the attorney-general and not by the county attorney, and that, in the opinion of the court, the attorney-general was not, under the law, entitled to an allowance of attorneys’ fees. The question as to whether or not attorneys’ fees were allowable as costs in the'case was reserved by the state for determination on appeal.

It is first contended on behalf of the appellants, Bland, Dixon and Brown, that by reason of the absence of the words “sitting at Galena” from the caption of the information the validity of the information! was destroyed. The information was entitled, “State-of Kansas, County of Cherokee, ss: In the District. Court of said County and State,” followed by the names; of the parties. In the act providing for the holding; of terms of the district court in Cherokee county it is enacted that terms of court shall be held at the city of Columbus on the first Monday of January, May and October, and at Galena on the first Monday of March and September and the second Wednesday of November, in each year. It is further provided that the clerk of the court shall maintain offices in Columbus and Galena, and that all actions commenced in the court shall be entitled, “sitting at Columbus,” or “sitting at Galena.” (Laws 1901, ch. 156, §§ 1, 2.) In the criminal code it is provided that the information must contain the title of the action, specifying the name of the court to which it is presented. When the information was attacked application was made to the court by the state to amend the information by adding the words “sitting at Galena,” and for the mere matter of formality an amendment might have been allowed, but evidently the court concluded, and rightly so, that the .omission was not a material one. The information had been filed at Galena and the defendants had been recognized to appear there. They were brought to trial' in Galena in the district court of Cherokee county, where the case was legally instituted. While terms of court are to be held at two places in Cherokee county it is the same court which is held in both places. There !is but one district court-in the county, and cases filed at one place may be assigned and transferred for hearing and trial at the other place. The provision that •actions filed in the different places shall be entitled as sitting at that place was- directory only and a mere matter of convenience. It was essential to name the county where the offense was committed, and that was given in the caption and explicity referred to in the body of the information. In a civil case it was contended that the omission of the name of the court and the county in-the caption of a petition was fatal to the jurisdiction of the court, and for the reason that is urged here, that is, that the statute required it to be done, but-it was ruled that the omission did not affect the jurisdiction and that no prejudice could have resulted from it. (Hastie v. Burrage, 69 Kan. 560, 77 Pac. 268.) Here the county and court were stated, and it is certain that the omission of the place in the county in which the information was filed did not result to the prejudice of the defendants. Aside from that, the criminal code provides that an information shall not be quashed “For a mistake in the name.of the court or county in the title thereof,” or “For any other defect or imperfection which does not tend to the prejudice of the substantial rights of the defendant upon the merits.” (Crim. Code, § 110, subdivs. 1, 7.)

■ A second contention is that the absence of the defendants from a part of the trial defeats the judgments. It appears the defendants were present when the trial began, as well as the counsel who were acting for them. An objection to the admission of any evidence was made in their behalf, based on the defect in the caption of the information. It was argued at length, •,and when it was'overruled counsel withdrew from the case and one of the defendants absented himself until the verdict was returned. -The other two defendants were ■ present throughout the trial and were giveh an -opportunity to cross-examine the witnesses who testified in behalf of the state and also to offer testimony in their own behalf, but they did not avail themselves-of the offers. Two of the defendants were present when the verdict was returned, and bonds in an increased amount for the appearance of all were given by all of them. Counsel appeared and presented motions' for a new trial and in arrest of judgment in behalf of all the defendants and all were present in court when these were overruled and the judgments of the court were pronoqnced. It is the right of the defendant in a criminal case to be present at all stages of the trial, but it has been held that his personal presence is' not absolutely required during a trial for a misdemeanor. (The State v. Baxter, 41 Kan. 516, 21 Pac. 650.) His presence is more important in a case of felony, and a trial of one charged with a felony during a compulsory absence of á defendant would be an infringement of his right. In felony cases, however, a defendant may waive his right to be present, and if, with full opportunity to be present, he voluntarily absents himself during the trial he waives his statutory right. (The State v. Way, 76 Kan. 928, 93 Pac. 159; The State v. Thurston, 77 Kan. 522, 94 Pac. 1011.) The voluntary absence of the defendants from the trial for the misdemeanors charged against them, when they had given a bond and obligated themselves to be present throughout the trial, is an effectual waiver of the right given them by law.

It follows that neither of the objections of the defendants can be sustained.

The remaining questions arise on the question reserved by the state. The decision of the trial court refusing to award judgment for the costs claimed by the state, or rather for attorneys’ fees to be taxed as costs, is one from which ah appeal may be taken by the state. It falls within the third class provided for, namely, “upon a question reserved by the state.” (Crim. Code, § 283, subdiv. 3; The State v. Zimmerman, 31 Kan. 85, 1 Pac. 257; The State v. Forney, 31 Kan. 635, 3 Pac. 305; Foss v. Jones, 43 Kan. 72, 22 Pac. 1001.)

The state sought to raise the same question in a mandamus proceeding brought against the district judge and the clerk of the district court, but as the state is entitled to have the question determined upon an.ordinary appeal, there is no occasion nor ground for invoking the. extraordinary remedy of mandamus.

Two questions arise on the appeal taken by the state: First, may any fees be allowed to the attorney-general as costs under, statutes, provi ding for the enforcement of the prohibitory liquor law; and second, may fees be allowed upon each count upon which each defendant is convicted? The validity of the statute authorizing the taxation of fees in cases of this character has been attacked and upheld. (In re Ellis, 76 Kan. 368, 91 Pac. 81; The State, ex rel, v. Dawson, 90 Kan. 829, 136 Pac. 320.)

The statute is now assailed upon a ground not previously considered, namely, that the allowance to the attorney-general of any fees would conflict with section 15 of article 1 of the state constitution, which provides that:

“The officers mentioned in this article shall, at stated times, receive for their services a compensation to be established by law, which shall neither be increased nor diminished during the period for which they shall have been elected.”

The attorney-general is one of the officers mentioned in the article and is subject to its provisions. No question arises as to the last clause of the section, as the compensation of the attorney-general, by the payment ©f the fees challenged, has not been increasd or diminished during the period for which he has been elected. It is contended, however, that the first part of the section, which provides that the officers shall, at stated times', receive for their services the compensation provided by law, prohibits the payment of any compensation to any of the officers mentioned other than that designated as salary. This clause is a direction to the legislature to fix the compensation of certain state officers, and to provide for payment of the same in whatever form it may be given, at stated times. The admonition to provide for payment at stated times is for the benefit of the officer, and the provision does not carry with it the implication that the failure of the legislature to make such provision would deprive the officer of his right to compensation. If the legislature should prescribe the amount of compensation that an officer should receive and fail to fix the time when payment should be made it would hardly be contended that the officer would not be entitled to compensation. The clause does not provide the form or medium of payment, and the ordinary meaning of the term “compensation,” as applied to officers, is remuneration in whatever form it may be given, whether it be salaries and fees or both combined. (23 A. & E. Encycl. of L. 385.) There is a limitation in the last clause of the section, and this provision has been interpreted and enforced (Bailey v. Kelly, 70 Kan. 869, 79 Pac. 735), but it is clear that the requirement that officers shall be paid compensation at stated times does not mean that no compensation can be given if the time of payment is not fixed, nor does it mean that it must be paid in the form of salary. It has already been determined that compensation may be given to state officers in both salary and fees, with, of course, the limitation, that compensation can not be increased or diminished during the term. (Nation v. Tulley, 86 Kan. 564, 121 Pac. 507; The State, ex rel., v. Dawson, 90 Kan. 839, 136 Pac. 320.)

A statute giving compensation in the form of fees payable when judgment is entered and when they have been legally earned comes fairly within the clause providing for paying compensation at stated times. It is compensation that is established by law, and the provision that the fees are earned and to be taxed as costs when convictions are obtained amounts to a fixing of the times when compensation is payable. Salary is generally regarded as a periodical payment dependent upon time, while fees depend on services rendered, the amount of which is fixed by law and made .payable at fixed times. There is nothing in the provision indicating that the stated times must be of equal duration, nor that the times fixed for one kind of compensation shall be the same as that of another. The stated time for the payment of fees under the statute is when the judgment is entered finding them to be allowable and taxing them as costs in each case.

Another question has been presented for determination, and that is the amount of fees that are allowable under the statute. The three defendants herein were prosecuted jointly under charges embraced in a single information. On the part of the state it is claimed that a fee should be allowed for each count upon which each defendant was convicted, and on the other side it is contended- that no more should be allowed than if the convictions had been obtained- upon each count against a single defendant. It is provided that the attorney-general’s fees in this class of cases shall be measured, by those allowed to county attorneys. (Gen. S-tat. 1909, § 4378.) In the statute fixing the fees it is provided that:.

“The county attorney shall be allowed a fee of twenty-five dollars upon each count upon which the defendant shall be convicted, and the same' shall be taxed as costs in the case.” (Gen. Stat. 1909, § 4377.)

As will be observed, there can be no compensation unless the prosecution results in a conviction, but the prosecuting attorney is to be allowed a fee upon each count upon which a defendant is convicted. If the defendants had been tried upon separate informations there would be no question .of the right of the prosecuting attorney to a fee for each conviction of each defendant; and will the fact that all the defendants were jointly tried in one prosecution affect the amount of compensation? Although prosecuted together each defendant is entitled to individual counsel and the compulsory process requiring the attendance of his own witnesses. Each is separately arraigned and a plea is made by or in behalf of each defendant. • Each is entitled to challenge jurors as if he were being tried alone and each is entitled to the same number of challenges. Separate findings upon the several counts are required to be made as to each defendant and separate judgments of conviction are entered against each defendant upon each count. When judgment is so rendered each is liable only for the penalty assessed against him and is not responsible for the penalties assessed against the other defendants. The fact that one may pay a fine and suffer imprisonment under the sentence will not satisfy the judgment in respect to the other codefendants. Where several defendants are jointly charged with a felony separate trials may be had upon request, and separate trials may also be had in other cases in the discretion of the court. (Crim. Code, § 218.) In all prosecutions of those jointly charged with offenses the individual rights of defendants are recognized and protected. On account of the provisions made for the assertion of individual rights and for separate findings and entries of judgment against each defendant the prosecuting attorney must make additional preparation and render additional service. As the law requires that there must be separate convictions' against each individual defendant we think the prosecuting attorney is entitled to a fee for each conviction of each defendant.

Under a statute of Indiana giving the prosecuting attorney a fee for every conviction upon an indictment or presentment on a plea of not guilty several persons were jointly charged for a riot, and it was held that there were as many convictions as there were defendants found guilty and that the prosecuting attorney was entitled to a fee against each defendant. (The State v. Cripe and Others, [Ind.] 5 Blackford, 6.) In Penland v. The State, 20 Tenn. 383, where . several persons were jointly indicted and convicted, it was held that a fee should be taxed against .each defendant under a statute which provides that: “Whenever any fine or cost shall be rendered in any court against any defendant upon any prosecution under any of the statutes which may be enforced, to discourage and suppress gaming, ten dollars shall be taxed- in the bill of cost as a-fee for the attorney general.” (p. 384.) In The State v. Hunter, 33 Iowa, 361, it was held that the prosecuting attorney was, entitled to separate fees upon the conviction of several defendants jointy indicted and tried. The court said: -

■ “The statute, allows -to that officer ‘for each conviction on plea of guilty $5,’ which ‘shall be taxed against the, defendant’ and collected by the clerk, etc.

“The judgments being.required to be several on the several pleas of the defendants this fee is properly taxable in each judgment. The judgments are the'several convictions on the pleas of guilty entered, and the fee should be taxed as a part of each judgment.” (p. 364.)

In Colorado, where the statute allows the district attorney a fee of $20 for every conviction for felony, it was held that where several charges were made against two jointly and separate trials had and a conviction on each that the district attorney was entitled to a-fee for the conviction of each. (Board of County Com., etc., v. Graham, 4 Colo. 201.) In Texas a law gave the attorney-general a fee in cases where a judgment against convicted defendants is affirmed. A joint appeal was taken by several defendants with the result that the judgment was affirmed. A judgment- taxing a fee against each defendant was sustained. (Hogg v. The State, 40, Tex. Crim. Rep. 109, 48 S. W. 580; see, also, The State v. Kinneman et al., 39 Ind. 36.)

On the appeal taken by defendants Bland, Dixon and Brown, the judgments against them will be affirmed. On the appeal taken by the state the judgment refusing an allowance of fees to the attorney-general will be reversed and the cause remanded with directions to enter judgment in accordance with the opinion herein. The mandamus proceeding brought against the district judge and clerk of the district court will be dismissed.