State v. Menhart

9 Kan. 98

• Court: Supreme Court of Kansas
• Decided: January 15, 1872
• Status: Published

Opinion

The opinion of the coui't was delivered by

Kingman, C. J.:

Is the complaining witness in a proceeding to prevent the commission of an offense under aft. 2, ch. 82, Gen. Stat., 821, liable for the costs in a case' where the justice holds that there is no cause for binding over the accused ? The witness is not a party to the proceeding.. If he is liable for the costs it must be by virtue of some statute. The one referred to as creating the liability is the first proviso to § 13 of the act relating to fees, (ch. 39, Gen. Stat., 481.) That section provides that where a person is charged with a felony, or with an offense less than a felony, and shall be discharged for want of sufficient evidence to convict or bind' over, the prosecuting witness shall be liable for costs. In this case no person was charged with an “offense.” That word has a statutory definition, (§ 2, ch. 82, p. 820,) which excludes its application to proceedings to preserve the peace. We know no reason why the legislature made the prosecuting witness liable in one case and not in another. No good reason is perceived for the distinction. Still the language of the statute does not apply to this case, and wo cannot extend it. Counsel is mistaken in assuming that there are no misdemeanors of which justices have not jurisdiction. There are many such, and because of this error, his argument on the words “bind over,” in the proviso, falls to the ground. The judgment is affirmed.

All the Justices concurring.