State v. Moseli

49 Kan. 142

• Court: Supreme Court of Kansas
• Decided: January 15, 1892
• Status: Published

Opinion

The opinion of the court was delivered by

Johnston, J.:

John Moseli was arrested and tried for a violation of the prohibitory liquor law. The information upon which he was tried contained four counts, but he was only convicted upon the first count, which charged him with an unlawful sale made July 1, 1891, without first taking out and having a permit to sell intoxicating liquors. The information was verified by the county attorney, who swore positively that the allegations contained therein were true. The county attorney elected to rely upon a sale made to one Anderson, about which testimony was given. It appeared in the testimony that the county attorney had not actually witnessed the sale on which the conviction was had, and it is contended that the information is to be regarded as if it was verified on information and belief. The appellant therefore insists that there was no authority for the issuance of the warrant, nor for the arrest of the defendant. If we treat the information as one verified on information and belief, the objection of the defendant is not available. No motion was made to set aside the warrant nor to discharge the defendant from arrest. He voluntarily submitted himself to the jurisdiction of the court, and waived any irregularity there may have been in the verification. When arrested, he entered into a recognizance binding himself to appear at the next term of the court and answer the charge which had been preferred against him, and subsequently he pleaded to the charge without questioning the sufficiency of the verification or of the information as a basis for a warrant. A charge verified upon information and belief.is good for all purposes except for the issuance of a warrant to bring the defendant into court; but when he is arrested and voluntarily enters into a recognizance to appear at the following term, and pleads to the charge made against him, he waives all objections to the warrant and arrest. (The State v. Blackman, 32 Kas. 615; The State v. Clark, 34 id. 289; The State v. Bjorkland, 34 id. 377; The State v. Longton, 35 id. 375; City v. Keeffe, 40 id. 275; The State v. Ladenberger, 44 id. 261; The State v. Tuchman, 47 id. 726.) The verification, however, was in positive terms, and while the county attorney may not have had such knowledge as warranted him in making a positive declaration, yet the defendant suffered no prejudice on that account. He was Notified of the nature of the offense charged against him — that is, the information contained a definite charge that at a stated time and place he unlawfully sold intoxicating liquors; and this charge was verified as has been stated. It is true the names of the parties to whom the liquor was sold were not mentioned in the information; but this is not required. (The State v. Schweiter, 27 Kas. 500; City v. Webb, 44 id. 71.) The specific sale upon which a conviction was asked was particularly designated by the county attorney at the instance of the defendant, and hence he knows the transaction upon which the conviction rests, and there is no room to doubt that he was convicted of the offense charged against him, and that the evidence in the record is sufficient to sustain the conviction.

The judgment of the district court will be affirmed.

All the Justices concurring.