City of Topeka v. Kersch

The opinion of the court was delivered by William R. Smith, J.: Appellant was taken into custody on view of the commission of an offense by a policeman of the city of Topeka and brought before the police court without process. An oral complaint was made against him by the officer charging that on or about July 3, 1903, in a back room on the first floor of a two-story building at No. 708 Kansas avenue, defendant did unlawfully assist in keeping and maintaining a place where spirituous, malt, vinous, fermented and other intoxicating liquors were sold, bartered, and given away, and where persons were permitted to resort for the purpose of drinking such intoxicating liquors as a beverage, and where intoxicating liquors were kept for sale, barter, and delivery, without a permit, etc., in violation of the ordinances of the city. Appellant was found guilty, a fine imposed, together with a sentence of imprisonment. He ap — 842 — pealecl, giving bond in the sum of $500. The transcript sent up showed that appellant was convicted before M. L. Field, acting police judge. It was certified, however, thus : “ This is to certify that the within and foregoing is a full, true, complete and perfect copy of the proceedings had before me in the above-entitled cause, as appears in my docket 17, at page 159. “Witness my hand this 24th day of July, 1903. Clad Hamilton, Police Judge.” In the district court Kerseh moved to dismiss the action for the reason that the transcript did not show that he was charged, tried, or convicted in the police court of any offense against the ordinances of the city. The motion was overruled. He renewed the motion after the jury were sworn to try the case. The same ruling was made. Before the jury were sworn defendant objected to being placed on trial for the reason that there was no complaint or warrant on which he could be tried. This objection was overruled. We .suppose this motion was intended to attack the transcript because it was not legally certified. If so, it was far from specific, and we might well say did not raise the question. The transcript, however, was not defective. It was certified to by the regular police judge, the only officer authorized to do so. Appellant’s counsel argue that, their client having been tried before a special or acting police judge, the proceedings must be certified by him, and liken the case to a settlement of a bill of exceptions by a judge pro tern. The cases are not analogous. Proceedings on appeal from convictions in the police court are regulated by section 807 of the General Statutes of 1901, which applies the law respecting procedure before justices of the peace to appeals from the police court. — 843 — All that is necessary on such appeal is to get the proceedings before the district court which appear in the docket of the police judge. The word "proceedings” has a broad meaning. (Drumm v. Cessnum, 61 Kan. 467, 59 Pac. 1078.) Under the theory of counsel for appellant, if the acting police judge should die or remove from the state there could be no appeal. The complaint against defendant appeared on the docket; there was no warrant. A certified copy of the docket entries, together with a certificate of the recognizance, was all that the law required to give the district court jurisdiction of the case. Appellant, when arraigned in the police •court, did not demand to have a complaint filed against him under oath, to which he was entitled under the statute. (Gen. Stat. 1901, §813.) The filing •of a written complaint being waived, the waiver concluded his rights thereto in the district court after appeal. The complaint could not be changed or amended except in the police court. (City of Burlington v. James, 17 Kan. 221.) Because appellant was charged with assisting in keeping and maintaining a common nuisance it is urged that the court misdirected the jury in stating that he was on trial for keeping and maintaining such nuisance. In misdemeanors all who aid or assist are principals ; the law recognizes no accessories. ‘ The testimony showed that Kersch, at the time of his arrest, was serving liquor over the bar to about ten men. He had no hat or coat on and was actively engaged in the work. The supply of liquor was ample. It is insisted that no intoxicating liquors were found in the possession of appellant, and hence no prima facie case arose under section 2500 of the General Statutes of 1901. We think there was ample proof of possession. A — 844 — barkeeper serving customers with intoxicating drinks-has possession of the liquor dispensed, at least while placing it on the bar. The court by proper instructions left the question to the jury whether defendant, was committing the offense of which he was convicted in the presence of the officer at the time of his arrest. The verdict returned by the jury found appellant guilty of keeping and maintaining a common nuisance at No. 708 Kansas avenue, in the city of Topeka, on July 3, 1903, “as claimed in this prosecution.” Because the verbal charge specified a back room on the first floor of a two-story building at No. 708 Kansas avenue as the place of the commission of the offense it is urged that the vex’dict was not responsive to the charge, and did not sixstain a sentence under it. It must be remembex’ed that the charge against the accused was not in writing. He was tried on the verbal statement of a police officer, who first made the accusation in the presence of the offender in the police court and afterward testified under oath to the charges preferred. It was not error for the court to i’efer in the instructions to “the place described in the evidence” when commenting on the location of the offense. By failing to demand a written complaint appellant waived technical averments against him,, and cannot now be heard to complain that information respecting the nature of his offense was conveyed to him verbally. Of the general scope of the charge he was amply informed by the preliminary statement of the officer; the details were given in the testimony. That part of section 813 of the General Statutes of 1901 which authorizes an arrest upon view of a crime committed in the presence of a police officer, without warrant, is attacked as unconstitutional because in — 845 — violation of section 15 of the bill of rights, which guarantees security against unreasonable searches and seizures, and for other constitutional reasons. This record does not present a case for the consideration of the question urged. The regularity of the appellant’s arrest was not challenged in the police court or the district court. When convicted in the police court he entered into a recognizance on appeal. He appeared and contested the case on its merits. In The State v. Gleason, 32 Kan. 245, 4 Pac. 363, it was held that under section 15 of the bill of rights, which provides that no warrant shall be issued to seize any person but on probable cause, supported on oath or affirmation, a complaint or information filed in the district court on information or belief, charging a misdemeanor, does not authorize the issuance of a warrant for the arrest of a party so charged. In The State v. Blackman, 32 Kan. 615, 5 Pac. 173, a defendant convicted under an information sworn to on information and belief went to trial on the merits without making any objection to the sufficiency of the information or its verification. It was held that he had waived all defects. In The State v. Bjorkland, 34 Kan. 377, 8 Pac. 391, the court went further. Informations charging offenses under the prohibitory liquor law were sworn to on information and belief. Motions were made to quash the warrants after defendant had entered into recognizance for his appearance. It was held that as the party was not held on the warrants they had spent their force, and the question of wrongful arrest was waived. The same ruling was made in Junction City v. Keeffe, 40 Kan. 275, 19 Pac. 735. That a conviction was had without a written complaint does not impair the appellant’s constitutional — 846 — rights. He was entitled to a written complaint on demand, which he did not make. This court has held, several times that a trial by jury may be denied in the police court if there are no unreasonable restrictions, on the right to appeal to a court where a jury may be-had on demand. (80 Pac. 29.) The judgment of the district court is- affirmed. All the Justices concurring.