State of Kansas v. Forbriger

The opinion of the court was delivered by Valentine, J.: On February 14, 1885, Luther 0. Challiss, a private citizen, presented to the Honorable David Martin, judge of the district court of the second judicial district, a complaint in writing, and under oath, charging Robert Forbriger with the commission of a public offense, a misdemeanor, under-§210 of the crimes act, for which offense the punishment may be a fine not exceeding $500 and imprisonment in the county jail not exceeding one year. The complainant demanded of the judge that a warrant should be issued for the arrest of Forbriger, and that the judge should take cognizance of the complaint and hear and determine the case. The judge, however, refused so to do, and from such refusal a supposed appeal, ostensibly by the state, has been taken to this court. complaint to district judge. We think the supposed appeal must be dismissed, for the reason that no appeal in any such case is authorized by any statute of the state of Kansas. The case has never been in the district court, and no jurisdiction has ever been obtained over florbriger by any court or mdge. , The case was instituted before Judge Martin as a supposed magistrate, under the supposed authority of §§7, 35 and 36 of the criminal code. Now supposing that the judge of the district court is a magistrate under said sections, and that he may take jurisdiction in any case provided for by the same, still no appeal from the decision of such magistrate [6] in such a case will lie to the supreme court, or to any other court. The proceeding in such a case is merely a preliminary examination, which is not appealable to any court. But even if we should consider that the proceeding in such a case is more than a preliminary examination, and that the judge of the district court is invested by these sections, and § 1, article 1, of the justices’ misdemeanor act, with the same jurisdiction that a justice of the peace would have in a like case, and with the power to hear and determine the case finally upon its merits, still, neither the state nor any private citizen prosecuting in the name of the state would have any appeal to the supreme court, or to any other court, but the defendant only would have such appeal, and his appeal would not be to the supreme court, but to the district court. (Justices’ Misdemeanor Act, art. 4, §21.) The defendant, however, in this case is charged with the commission of a misdemeanor in which the punishment cannot exceed a fine of $500 and imprisonment for one year, and there is no necessity for a preliminary examination in such a case, even if a preliminary examination could be had at all. (In re Donnelly, 30 Kas. 191, 424.) And only justices of the peace and the district courts have original jurisdiction to hear and determine such cases upon their merits. (In re Donnelly, supra; Justices’ Misdemeanor Act, art. 1, § 1.) District judges have no such jurisdiction in such cases. Previous to March 1, 1869, justices of the peace had exclusive original jurisdiction of this class of cases, but at that time the law was so changed that the district courts now have equal and concurrent jurisdiction with justices of the peace; but there is no provision anywhere in the statutes authorizing any other court or any judge or magistrate to take original jurisdiction of such cases. Hence the jurisdiction is exclusive in justices’ courts and in the district courts. Besides, in the district courts, all criminal prosecutions must be carried on upon in-formations filed by a public prosecutor, or indictments found by the gz’and juzy, (The State v. Brooks, 33 Kas. 708,) and not upon complaints filed by a merely private citizen. [7] ~. Qwere. But it is not claimed in this case that this prosecution has been instituted in the district court, but it is claimed that it has been instituted before the district judge as a magistrate, under said §§ 7, 35 and 36 of the criminal code. We suppose that it will hardly be claimed that the judge can exercise jurisdiction over this class of cases as a judge of the district court at chambers, for chambers business relates merely to matters pending, or to be instituted, in the judge’s own court, and not to matters having no connection with his court, or which relate only to something pending in some other court, or before some magistrate. Besides, if the case is to be tried before the judge upon its merits, the defendant would be entitled to a jury trial, and a judge at chambers cannot impanel a jury. If, however, it should be claimed and admitted that the judge, in a case like this, would not be exercising jurisdiction of matters pertaining to the district court, but would be exercising jurisdiction as a magistrate, or some other court, independent of the district court, then would he not, in exercising such jurisdiction, be violating that provision of the constitution of the state which prohibits all judges of the district court and justices of the supreme court from holding “any other office of profit or trust under the authority of the state or United States during the term of office for which said justices and judges shall be «elected”? (Const., art. 3, §13.) A district judge should not be both a judge of the district court, and a magistrate independent of such court. The positions are not merely one, but are two; and the position of magistrate is certainly an office of trust, if not of profit. We think the appeal in this case must be dismissed, for the reason that no appeal in this class of cases lies to the supreme •court. If, however, we should go further, in this case, and investigate the merits, which it has not been our intention to do except incidentally, we would probably reach the same conclusion that the judge of the district court did. Appeal dismissed. All the Justices concurring.