State v. Montgomery , 8 Kan. 351 ( 1871 )

The opinion of the court was delivered by

Brewer, J.:

i informationiy comity1 attorney. Appellant was convicted of the crime of grand larceny and sentenced to confinement and hard labor for two years in the state penitentiary. Oí this judgment he now complains, and alleges several errors. First, that the information upon which he was tried was not properly verified. It was verified by the prosecuting attorney, upon information and belief We think that was sufficient. The law contemplates a verification by tbe prosecuting attorney as an oificial act. A party accused has a right to a preliminary examination, and a finding of probable cause before be can be placed upon his final trial. At such examination be can be beard by bis counsel and witnesses. It is made the duty of tbe prosecuting attorney by § 68 of tbe code of criminal procedure to inquire into all cases of preliminary examinations which have resulted adversely to the accused. If in bis judgment no information ought to be filed, be is required to prepare and file a statement in writing of bis reasons therefor, which being approved by tbe court terminates tbe prosecution. No verification is required to this statement. Yet it is as potential in favor of tbe defendant, as tbe information is against him. Again, in extreme cases the judge may require tbe prosecuting attorney to file an information against a supposed criminal, and compel compliance by attachment, fine and imprisonment. (Code of Crim. Procedure, § 71, den. Stat., p. 832.) Surely tbe law does not contemplate tbe absurdity of requiring an officer to swear positively to tbe existence of facts of which be bas no personal knowledge, and punishing by fine and imprisonment a failure to comply with this requirement. It would be more consonant with tbe spirit' of tbe criminal law to punish the officer for taking such an oath, than for refusing to take it. Tbe rule may be different where a private individual verifies tbe information, for with him it is voluntary and not an official act. However, it will be time enough to consider that question when it is properly before us. This whole method of prosecuting by information was in use in Michigan some years before it was adopted here, and this identical question was passed upon by tbe supreme court of that state. "We cannot do better than quote tbe forcible language of Judge Christiancy, of that court, as reported in Washburn v. The People, 10 Mich., 385: “"Why mention the prosecuting attorney at all, if the facts are to be sworn to on personal knowledge? He is no more likely to have personal knowledge of such facts than any other person, though he is from his official duties more likely to be informed of the nature of the evidence. Tlie statute seems to contemplate the verification by a single person only, and makes no provision for compelling the attendance of witnesses for such purpose, or for requiring them to testify. The object of this verification is not, as in the ‘ examinations ’ alluded to, to satisfy the court that the defendant is guilty. It is not for the purpose of evidence which is to be weighed and passed upon, but only, as we think to secure good faith in the institution of the proceedings, and to guard against groundless and vindictive prosecutions; and this object is fully met by the previous examination and a verification upon belief.”

a when error wm he cured. II. When the case was called for trial defendant filed an affidavit that he desired to call the presiding judge as a witness in his behalf, and moved the court to order the election of a jU(%e Pro ^6m- This motion the record shows was oyerruled, but thereupon the presiding judge declined to sit in the case, and directed the election of a judge pro tern., which was accordingly had, and the trial proceeded with under the direction of thejpro tern, judge thus elected. As the defendant obtained that which he sought, we fail to see any error of which he can complain. Whether the reason given was good or not, if the act ordered was proper, no error lies.

3 courts- aajournmonts. III. The remaining errors alleged consist in the reception and rejection of testimony, and the giving and refusal of instructions. But at the outset we are met by a counter objection that there is no legal bill of exceptions in the record, and therefore none of these alleged errors are before us. It is claimed that the supposed bill of exceptions was signed and filed out of term. If so it never became a part of the record, and must be wholly disregarded. Brown v. Rhodes, 1 Kas., 359. The defendant was tried at the February Term 1871 of the district court of Douglas county. The verdict was rendered on the 8 th of March. On the 9th of March the bill of exceptions was presented. From the 9th the court adjourned until the 21th of March. It then met and adjourned until the 10th of April. From that day it adjourned to tbe 28th of April, upon which day tbe motion for a new trial was overruled, and this bill of exceptions was signed and filed, over the objection of the prosecuting attorney. All this was done in open court. That it was done under the direction of tbe judge pro tem. can make no difference, for by § 8 of tbe act concerning district courts, Gen. Stat. p. 305, the judge pro tem. has “the same power and authority, as the regular judge, while holding court, and in respect to cases tried before him.” But it is urged that the February Term of the district court of Douglas county was ended by operation of law before tbe day upon which this bill of exceptions was signed and filed. Section 4 of an act concerning district courts, Laws 1869, p. 119, provides that “ the terms of court in the fourth judicial district shall commence as follows: In the county of Anderson on the second Monday of March; * * * * in the county of Douglas on the second Monday in February, on the third Monday in August,” etc. The second Monday in March, 1871, was the 13th of that month. Upon that day then the regular term of court in Anderson county commenced. Upon that day too it is claimed the term of the district court of Douglas county by necessity closed; for it is said that the court is considered in session from the commencement to the close of the term, and if the term did not close in Douglas county at the time it commenced in Anderson there would be “ two terms of the district court in session in the same district at the same time, doing business and trying cases, with but one district judge.” It does not appear from the record that there was practically any such difficulty as that suggested; or that the judge of the district court was attempting the physical impossibility of a personal presence in Garnett and Lawrence at the same time, or even that the judge fro tem. was engaged in holding court in Douglas on the same days that the regular judge was holding court in Anderson county — a question, by the way, which may involve considerations very different from that presented by this record. So far as appears here, (for we cannot presume difficulties and collisions when none are shown,) tbe district court of Douglas county was adjourned by order of tbe judge from a day prior to tbe commencement of tbe regular term in Anderson county to a day subsequent to its close. "Was such adjournment ulPra vwesf and did the term lapse notwithstanding such order? This is the naked question. The legislature have named the day for the opening of a term, but have not for the closing. That is confided to the discretion of the judge, and is determined by the amount of business and the necessity of suitors. By § 10 of the amendments to the code of civil procedure in 1870, (Laws 1870, p. 174,) actions are “triable at the first term of the court after the issues therein, by the times fixed for pleading, are or should have been made uj> ten days before the term.” It may often hajjpen that the time is insufficient to dispose of all the triable actions in one county before the day fixed for the commencement of the term in another. Has the law given to a party the right to have his case tried at a given term, and at the same time denied to the court the power to secure that right? Again, §10 of the act concerning district courts, Gen. Stat., p. 308, provides that the “judges of the several district courts shall have the power to hold such special and adgowrnecl terms in any county in their respective districts as they may deem necessary.” For special terms, notice is required; but for an adjourned term a simple order adjourning the court to a given time, is all that is necessary. A special term is a separate, independent term. An adjourned term is but a continuation ■ — a part of the regular term. Giving the district court power to hold an adjourned term, gives it power, not to adjourn from day to day, but to adjourn over a length of time, over intervening obstacles to the holding of court. It seems to contemplate just such an exigency as the present, where the business in one county is incomplete and yet the day fixed for the commencement of the term in another has arrived. -The time of such adjournment is not restricted, unless it is deemed to be by the commencement of the succeeding regular term in that county. Being but a continuation, a part of the regular term, the unfinished business may be completed, bills of exceptions signed, etc. Again, while it is true there is a sense in which it may be said that the court is considered in session from the commencement to the close of the term, and this theoretical continuity involves the presence in the county of all the officers of the court, including the judge, yet there is a practical limit to the application of this doctrine beyond which an attempt to carry it involves a manifest absurdity. Supposing that a judge holding court in some adjoining county during the present week should adjourn for a day, and come here to attend the State Fair, and that during that day an exigency should arise in his county which demanded the immediate exercise of the restraining power of an injunction, to whom shall the application therefor be made? By § 239 of the civil code the district judge, “or in his absence from the county, the probate judge” may grant an injunction. Now, by the strict theory of the continuity of the term, the district judge is present in the county, and therefore the probate judge has no jurisdiction. As a matter of actual fact he is absent from the county, and therefore the probate judge has jurisdiction. Unquestionably the latter view is correct, and illustrates a practical limitation to the idea of the continuity of a term. "We conclude then that the adjournment of the district court from the 9th to the 21th of March was not ultra m/res, that the term did not lapse on the 13th of March, and that the bill of excejfiions is a part of the record, and that the errors alleged in it are proper subjects for our consideration. In coming to this conclusion it is a satisfaction to know that thus we are not estopped by a technical objection from an examination of this case on its merits, and the defendant deprived by an error which he could not help (for he presented his bill of exceptions on the 9th of March,) of a full examination of his alleged grievances in the ultimate court of his state.

4. Evidence; Eecurring then to the bill of exceptions, we find the following questions presented: The crime charged was the larceny of packages from the possession of the Express Company which through its agent was bringing them from places along the line of the Leavenworth, Lawrence and Galveston railroad on the evening train to Lawrence. On the trial it was proven that John Mack was tbe messenger of the Express Company, that he came up witb tbe train on tbe night in that be bad. tbe custody of tbe packages charged to have been lost; that about two hours after tbe arrival of tbe train which brought him and tbe packages to Lawrence, said Mack called at tbe bouse of witness, James 0. Horton, and made statements to Horton in relation to tbe packages in controversy, and their loss; that John Mack is dead. It was then asked of tbe witness Horton to state to tbe jury what John Mack then said in relation to tbe loss of the packages, and when the same were lost. Tbe proof was objected to by defendant as incompetent and hearsay testimony, which objection was overruled by tbe court, and defendant excepted. Tbe witness thereupon testified to Mack’s declarations alleging tbe loss of tbe packages, when and where be bad lost them, etc. Tbe defendant insists that this testimony is incompetent because it is hearsay. We fail to see any rule of evidence by which this testimony can be made competent. It is not proving tbe testimony given on a former trial by a witness since deceased, but tbe voluntary statement of such deceased person. It was not a declaration against tbe interest of tbe party making it, for. Mack being in possession and responsible for tbe safety of tbe packages, bis statements suggesting larceny by another, are in excuse of bis own conduct, and tending to exonerate himself from liability or suspicion. Instead of being against interest, they are strongly and plainly in his interest. Nor are they admissible as part of tbe res gestee. In order to make a declaration evidence upon this ground there must be a principal fact which it attends, and whose character it serves to explain. There must be concurrence in point of time between tbe act and tbe declaration; otherwise it is but a narrative of what has been or an assertion of what will be done. Mr. Justice Fletcher in giving tbe opinion in Lund and Wife v. Inhabitants of Tyngsborough, 9 Cush., 41, discusses this question at' some length and witb great perspicuity. We quote a few sentences: “If a declaration lias its force by itself as an abstract statement, detached from any particular fact in question, depending for its effect on the credit of the person making it, it is not admissible in evidence. Such a declaration would be hearsay; as, where the holder of a check went into a bank, and when he came out said he had demanded its payment. This declaration was held unadmissible to prove a demand, as being no part of the res gestee. This statement was mere narrative, wholly detached from the act of demanding payment which was the fact to be proved.” Chief Justice Hosmer, in Enos v. Tuttle, 3 Conn., 250, says that declarations to become part of the res gestee “ must have been made at the time of the act done which they are supposed to characterize, and have been well calculated to unfold the nature and quality of the facts they were intended to explain, and so to harmonize with them as obviously to constitute one transaction.” See also 1 Greenleaf Ev., § 108; 4 Gray, 41, 584; Farmer v. Turner, 1 Iowa, 53; Ellsins v. Hamilton, 20 Vt., 627; Noyes v. Ward, 19 Conn., 250.

The declarations of Mack were not eotemporaneous with any act connected with the larceny. They do not purport to be statements concerning what is transpiring, but a narration of something which has already transpired. They qualify and explain no present act. They are but a history of the past; and whether that past be two hours or two years old cannot affect the principle. They are but hearsay. Nor does the fact that the witness is dead, and no better evidence than his statements of what transpired can be produced, affect the rule. Hearsay is but hearsay, whether the party whose statements are sought to be introduced be living or dead. This error is a material one. We cannot say how far it affected the minds of the jury in coming to their conclusion; but that it might have some influence, is evident. A great many other questions are presented in the bill of exceptions, but as this disposes of the case, and the other questions may not arise on a second trial, we forbear any dicussion of them.

The judgment of the district court will be reversed and a new trial awarded, and the defendant will be returned from the penitentiary and delivered over to the jailor of Douglas county to abide tbe order of the district court of that county.

All the Justices concurring.