Wichita daily eagle. [volume] (Wichita, Kan.) 1884-1886, 1884-07-08
MUST SWEAR POSITIVELY.
The State of Kansas VS.. Stephen Z.
Gleason..--AppeaI From Allen
County. Reversed.

The opinion of the court WAS dcliy-
cred by Horton, {. j.:
This was Il prosecution for the yio-
lation of section Z, chapter 12S, laws
of 1881, commonly known as the pro-
hibitorv liquor law, The county at
tornev commenced proccedingsssb IN
formation or complaint in the district
court. This was verified by the county
attorney upon information and belief.
The defendant moved the court to set
aside and quash the warrant issued
upon the information. and for his dis
charge, for the reason that 40 prob
able cause was shown, supported by
oath or affirmation. This motion
was ovorrued. The defendant OBJ
jected to being tried upon the in
formation. declined 10 plead thereto,
or to make any defense. The court
ordered plea Of mot guilty" 20 be
rendered in his behalf. and. after the
prosecution mad introduced all its cv-
idence, instructed the jury. A verdict
of guilty was rendered and defendant
was sentenced to pay a fine of 500
and costs, and TO be committed until
the same were paid.
The opinion il, may a person be ar
rested on warrant issued upon "A com
plant or information charging "A Grim
inal oflense, verified on nothing but
the county attorneys hcarsay and
belief prior 10 the preliminary cXami-
nation, or waiver to the right Of
such al examination. Section 81. chap
ter -, compiled laws of 1879 reads ::
when the information in any ease is
verified by the county attorney, it
shall be suiii cient if the veriiication be
upon information and belief Laws
of 1871, chapter III, section 3: section
II, chapter %, laws of 1881, provides
among other things, IF the county
attorney of any county shall be noti-
fed by any off Ger or other persoh of
any violation of any of the provisions
of this act, il shall be his duty forth
with to diligently inquire into the
facts of such violation, and if there is
reasonable ground for his institutlng Il
prosecution, it shall be the duty of
such county attorney 10 file u conf
plant in writing before some court
of competent jurisdiction, charg-
ing the suspected person of
such ofiense. and shall verify such
complaint by affidavit but it shall be
sufficient 10 state in such affidavit that
he believes the facts stated in such
complaint TO be true If the statutes
were contro ling and there WAS no
limitation or qualification thereof and
no constitute onal inhibition, il is man
ifest that a yer itication upon hearsay
or belief would be sufficient. The
counsel for the state claim this 10 be
SO, and refer to State s.Montgomcry.
8 kas. 351, and State vs.. Nulf. Is kBs.
404, as conclusive. Now, sec. 81 of
chap. so must be interpreted III con-
nection with sec. 60 of the same chap
ter, which provides "that no informa-
ton shall be filed against any person
for any felony until such person shall
have had "a preliminary examination
therefor, as provided by law, before a
justice of the peace or other cXamin-
ing officer, unless such person shall
waive his right Ia such examination
Provided, however, that informations
may be filed without such examination
against such tugitivcs from Justice
For the purpose of instituting a pre-
liminary examination the statute re-
quires that upon complaint made to
any magistrate that IA criminal otiense
has been committed, he shall
examine on oath the complainant
and any witness produced by him, ana
shall reduce the complaint 10 writing,
and shall cause the same 10 be sub
scribed by the complainant and if il
shall appear that any such ofiensc has
,nl h.
shall issue warrant naming or de-
scribing the oflense charged TO have
been committed, and the county in
which il was committed. and require
the officer 10 whom il shall be directed
forthwith TO take the person accused
and bring him before sopIe court or
magistrate 10 be dealt with according
TO law" Therefore, in ali cases where
person has preliminary eNamina-
ton, or valves his right TO such eX-
animation, the defendant ], brought
before the magistrate on a warrant is
sued on probabl cause ana supported
by the oath or ilirmatiun of some
person.
After such preliminary examination.
if il shall appear TO the magistrate that
AN oflense has been committed and
that there Is probable cause 10 believe
the defendan, guilty. he shall either
accept bail from the defendant fer his
appearance 10 the court where hr j. 10
be tried: or. If the oflcnse Toe not
bailabie, he shall be committed for
trial.
The cases of the State ". Montyom-
cry, supra. and State W. Nulf. supra,
were prosecutions for grand larceny
felonies-and in both cases preliminary
examinations were had before the FL
ing of the informations in the distric,
court. In the case of State ". Mont
gomery, it was said, 1.-The party accus-