Wichita daily eagle. [volume] (Wichita, Kan.) 1884-1886, 1884-07-08

| W Dc cflLtt.
Section OF procedure before JUS
tees. in misdemeaners, reads, "whcn-
ever complaint shall be made 70 a
justice of the peace on the oath or
affirmation of IA person competent TO
testify, charging any person with the
commission of any misdcmean0r, he
shall forthwith issue warrant of such
person and cause him TO be brought
forthwith before him for trial.
We held in i'm re Donnely, 80 Kan
sas, 1911. that where person is arrest
ed and brought before a justice of the
| peace charged with the commission of
misdemeanor, of which the justice
of the peace and the district court
| have the concurrent original jurisdic-
ton, the state has no right to elect 70
treat the proceedings before the jus
tice of the peace as a preliminary eX-
animation. Therefore, in cases of mis-
demeanor, of which 4 justice of the
peace and district court have concur
rent jurisdiction. the trial must pro-
coed upon the complaint or informa-
ton filed wsthout any preliminary ex-
amination: and section II of said
chapter 1923 Is the only authority for
!
belief merely. where the defendant is
not permitted TO have preliminary cX-
animation before his final trial. except
ing in the cases provided for by the
statute for filing information against
fugitves from Justice. LII this condi-
| ton of matters, the question recurs
upon the Interpretation to be given 10
that clause of section ID of the bill of
rights. "that no warrant shall issue
! but on probable cause supported by
oath or affirmation" OF course il
must lee conceded that the Consti!u-
ton is The superior and paramount
law, and that said section - is dcclar-
atory of the fundamental rights OF the
citizen. and was intended to protect
! him in his liberty and property against
! the arbitrary action of those in author
| ity. so long as This section is in force
/ the principles therein declared are 80
remain absolute and Interchangeable
rules of action and decision. The leg
! islaturc cannot infringe thereon, and
the courts must yield implicit obe-
dicncc thereto. Ii no warrant shall
issue but upon probable cause sup
ported by oath or aft rmation. the sup
1DTl must IL lllpit Aittn
hearsay or belief. Where Il person or
officer stated upon oath 'ihai thc sew
cral allegations and facts set fort. III
the foregoing information are true. rs
he has been informed and Ttrily be-
licvcs. he NAV have no knowledge OF
or information upon the subject except
mere hcarsay. and yet, can con>cicnti-
ou-lv make such declaration. Atchi-
son ". Bartholow, 4, Kan. 12l. i
complaint thus verified proves moth
ing II does not state facts. but only
the atlantis hcarsay knowledge and
belief; ii Is not Il complaint, an iii
formation or Il declaration supported
by an oath or affirmation. Atchison
W. Bartholow. supra; Thompson ".
liigginbothan, Is. Kansas. II.
A common law information might
be filed under the English practice
against persons charged with misde-
mcanors. vet no rule was granted in
regard to such cases except upon evil
dcncc as would uncontradicted make
out the defense beyond a doubt
Arch. CIR. III. 76 Rex vs.. WilIctt, : I!
Il. 294: Rex vs.. Williamson, 3 Il. aud
Aid. $50. Rex ". Bull. Wis, % (: |
Rex ". llilbcrs. Oh. L. X. 1863: Re-
gina -. Baldwin, 8 a. and f. l66 ; OK
partc Williams. cited llarr. III. G..
> POS: Chit. CIR. l.. $50, $50. said !
section IL is little more than the at
iirmation OF the great constitutional /
doctrine of the common law. Article F!
1 of the amendments H. the /
constitution OF the United States j.
most identical with said section IL,
and story SAYS that ''this provision
seems indispensable to the full enjoy
ment of the rights of personal sccurit'
personal liberty and private property.
Aud lis introduction into the
amendments was doubtless occasiuncd
by the strong sensibility excited both
in England and America upon the sub .
iect of general warrants. almost on .
the American Revolution" Sec. 1902. l.
vol. ,. Story on the Constitution. If
Il warrant, in the first instance. may
issue upon mere hearsav or belief
then all the guards of the common law I
and of the bill of rights of our own /
Constitution to protect the lib .
erty and property of the citizen /
against arbitrary power, are swept (
away. There i no necessity of going
so far. and the constitution warrants /
no such conclusion. TIE expressions |
of the bill of rights are very plain and T.
very comprehensive aud cannot be /
misunderstood. The oath or atlir
ton ola complaint or information up
on which defendant is arrested in the /
first instance. must set forth that the |
allegations and facts therein contained |
are true. State vs.. j. H.. Tyler. VT.
l.4i4; Conner VS.. Commonwealth, 3 /
Binn, Penn. So: Elsee VS.. Smith | ID. R
Il Rep. Court of Kings Bench, 81 ;
State VS.. Mann. : Iredell, \. e. lt2: |
EX parte Budford. 3 Cranch, L. :. |
Az.
Ii county attorney connot make |
such a yerification. then the informa- I
ton or complaint should be made by /
the oath of some one who can. If a |
county attorney files a complaint and /
yeriiies it upon belief under section
II of said chapter 1923. he must also I
attach thereto statement supported f.
by the oath ct affirmation Of some
other person willing TO testify, Of his
own knowledge. that tie facts aud al
legation stated in the complaint or in
formation are true. Ii a county at
torney ycriiies complaint by his
own oath il is sutfi cient.
If. upon being notified
b, an officer or other person TO the
violation of the provisions Of that act.
The county attorney makes diligent
inquiry into the facts of such violation.
He can. in almost all cases. obtain
statement or affidavit supported by the
oath or affirmation of some person.
which will Justify him in filing the
complaint required of him By
said section II, aud such at
iidayit or statement may be
attached to such complaint. and then
the complaint will not b. founded up-
on surInisc or hcarsay, but will be
based. in fact and in law. upon proba-
bic cause supported by oath or afiirma-
ton. and thereon warrant may issue
from any court having comfctent iu-
risdlCtlon. OF course, ii the county
attorney has personal knowledge OF
the matters and things charged in the
information. he may support il by his
oath or aft rmation.
pom the return of this case 10 tie
district court the complaint or iutor-
nation may be verified as the bill Of
rights commands. and warrant
thereon may be Issued for the arrcs,
of the defendants, but the proceed
ings already had are erroneous lhe )
80 -. ., .