# Lowe v. Kansas

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## Dissenting Opinion

    Brown
United States Supreme Court
163 U.S. 81
Lowe v. Kansas
An information, in the name and behalf of the state of Kansas, by J. V. Beekman, the county attorney of Chatauqua county, against one F. Keifer, for a criminal libel upon Sandy Lowe, was field September 28, 1889, in the district court of that county and state, and was afterwards, upon the defendant's motion for a change of venue, transferred to the district court of Elk county for trial.
Annexed to the information was the affidavit of Lowe, subscribed and sworn to before the clerk of the court, 'that the allegations and averments contained in the foregoing information are true.'
The General Statutes of Kansas of 1889 contain the following provisions:
By section 309 of chapter 31, regulating crimes and punishments, 'in all indictments or prosecutions for libel, the jury, after having received the direction of the court, shall have the right to determine, at their discretion, the law and the fact.'
By section 326 of chapter 82, establishing a code of criminal procedure, 'whenever it shall appear to the court or jury trying the case, that the prosecution has been instituted without probable cause and from malicious motives, the name of the prosecutor shall be ascertained and stated in the finding; and such prosecutor shall be adjudged to pay the costs, and may be committed to the county jail until the same are paid, or secured to be paid.'
At the trial of this information, the court, in charging the jury, after reading these statutes, and giving directions as to the law of libel, further instructed the jury as follows:
'You will observe that section 326 aforesaid provides that the jury may in any case find that the prosecution has been instituted without probable cause and from malicious motives; and, when the jury do so find, it is their duty to state the name of the prosecuting witness in their finding; and in such case the prosecuting witness may be by the court adjudged to pay the costs in the case, and he may be by the court committed to the jail until the same are paid, or secured to be paid; and in this case, if you are of the opinion that the provision of said section ought to be enforced, you are at liberty to and ought to enforce the same.'
'You will observe from section 309, above quoted, that you are, in your discretion, the judges of both the law and the fact of this case; and, this being so, we can only direct you as best we may to the law of the case.'
The jury returned the following verdict: 'We, the jury impaneled and sworn in the above-entitled case, do, upon our oaths, find the defendant not guilty; and we do further find that this prosecution was instituted without probable cause, and from malicious motives, and that the name of the prosecuting witness is S. Lowe.'
The court, 'being satisfied therwith, ordered that the same stand as and for the verdict of the jury'; and thereupon ordered 'that the defendant, F. Keifer, be discharged and go hence without day.'
Lowe then moved that so much of the verdict as found 'that this prosecution was instituted without probable cause, and from malicious motives,' be set aside, and that he have a new trial in that respect, upon the reasons 'that the said S. Lowe, upon the trial already had, has not been heard, and could not be heard, either in person or by counsel, in his own defense, touching the matter and things above mentioned as stated and contained in said verdict, being neither plaintiff nor defendant in this prosecution,' and that the verdict was contrary to the law and the evidence, and that the instructions aforesaid were erroneous, for the also moved in arrest of judgment, for the same reasons, and because 'he has the right, by the law of the land, to be so heard in his own defense, and to a separate trial concerning his liability as prosecuting witness in this action, which separate trial he hereby demands of this court.'
The court overuled both motions; and, upon a further hearing on the verdict, adjudged that 'the prosecuting witness, S. Lowe, in the above-entitled action, pay all costs of said action, taxed at $1,053.40,' and be committed to the county jail until he paid the costs or executed a sufficient bond to pay them within six months.
To all these instructions and rulings, and to the judgment aforesaid, Lowe excepted, and tendered a bill of exceptions, which was allowed by the court.
Lowe appealed to the supreme court of the state, which affirmed the judgment, upon an opinion of the supreme court commissioners, holding that the constitutionality of section 326 of chapter 82 had been settled by the decision of In re Ebenhack, 17 Kan. 618 (in which the supreme court upheld the constitutionality of the similar provision of section 18 of chapter 83, concerning proceedings before justices of the peace for misdemeanors); and that, according to the decision of the supreme court in State v. Zimmerman, 31 Kan. 85, 1 Pac. 257, as the jury were expressly authorized by the statute to determine both the law and the fact, neither the trial court nor the appellate court of the state had power to interfere with the verdict. 46 Kan. 255, 26 Pac. 749.
A motion for a rehearing was overruled by the supreme court of the state in an opinion, which, after citing the decision in Ebenhack's Case, proceeded and concluded as follows: 'After a defendant is acquitted, the state is not entitled to a new trial before a jury as to which party must pay the costs. The prosecuting witness is so connected with the state in the trial that, after the acquittal of the defendant, he cannot demand a retrial upon the evidence before another jury. If costs are improperly taxes by the court after the acquittal of the defendant, of course a motion can be made for the retaxation, and a proper inquiry may be had thereon. In this case it appears that the district court approved the verdict of acquittal, and also the finding of the jury against the prosecuting witness. Therefore, in this case, the court below pronounced judgment of acquittal, and for the commitment of the prosecuting witness, in accordance with its own opinion,-not merely the opinion of the jury.' 47 Kan. 769, 770, 28 Pac. 1089.
Lowe thereupon sued out this writ of erro , contending that he had been deprived of his liberty or property without due process of law, and had been denied the equal protection of the laws, contrary to the fourteenth amendment of the constitution of the United States.
George Chandler, for plaintiff in error.
Mr. Justice GRAY, after stating the case, delivered the opinion of the court.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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