State v. English , 34 Kan. 629 ( 1886 )

The opinion of the court was delivered by

Johnston, J.:

presumed^*3

' tácate,061 On January 29, 1885, a complaint was made and filed before a justice of the peace of Miami county, charging "V". P. English with the offense of assault and battery. He was there tried and convicted, and from the judgment of conviction he appealed to the district court. A trial was had in that court, where he was again convicted; and he now prosecutes an appeal to this court. He first objects that the complaint upon which he was tried in the district court was not certified up by the justice of the peace as required by the statute in such cases; and he cites The State v. Anderson, 17 Kas. 89, and The State v. Anderson, ante, p. 116, as authorities for a reversal. In each of those cases the defect affirmatively appeared in the record. In the first case the record disclosed that the justice, instead of transmitting the original complaint, had sent up what purported to be a certified copy of it; while in the second case there was an affirmative showing that the complaint found among the papers in the case, and upon which the defendant was tried, was not certified to or authenticated in any manner. There is no such showing here, and therefore we cannot say that the complaint in the record, and upon which the appellant was tried, is not the original one, nor can we say from the record that it has not been identified and certified to as such. Unless the contrary affirmatively appears, we are bound to presume that the proceedings were regular, and that the requirements of the statute were followed. It is true that the certification has not been indorsed on or attached to the complaint, but that is not essential. It is enough if it otherwise appears to have been certified to or authenticated. In the case last cited we held that a complaint sent up by a justice without certification might be remedied when an objection was raised at the trial, by causing it to be then certified to or authenticated. If there was a defect in this instance, it could and may have been cured during the trial; but whether a defect existed, and if so, whether or not it was cured, we cannot know, as none of the evidence, and not all of the proceedings in the case, have been brought to this court. Instead of an apparent defect from which a prejudice to the defendant might have resulted, there is that in the record which tends to show that the defendant was tried in the district court on exactly the same charge upon' which he was tried and convicted in the justice’s court, and that is the substantial requirement of the statute which it is claimed was violated. The complaint bears the file-marks of the justice of the peace, and under the indorsement is attached the official signature of that officer. Resides, in the certified transcript of the proceedings before the justice of the peace, which was transmitted with the complaint to the district court, the justice sets forth the substance of the complaint and charge upon which the defendant was tried, and it corresponds in every essential particular with the allegations of the complaint found in the record. The position of the appellant cannot be maintained for still another consideration, which is that no objection was made by him to a trial upon the complaint as it existed. It was properly verified, clearly stated a public offense, and, as has been seen, charged precisely the same offense for which he had been tried before the justice of the peace. Having pleaded to this complaint and submitted to a trial thereon without objection, he must be held to have waived the lack of certification, if such irregularity existed.

s. instructions, not excepted to.

4. Special instructions; evidence The. appellant further complains of the instructions that were given by the court, and of its-refusal to give several special instructions which were requested by the defendant. Neither of these objections is available to the defendant. In respect to the instructions given, it is sufficient gay ^gy n0£ appear £0 have beeu ex_ cepted to at the time by the defendant, and are therefore not before us for review. Exceptions were taken to those which were asked and refused, but as the record contains none of the evidence, and no statement of what the testi,11. mony tended to prove, we are unable to determine the applicability of the instructions requested, or that there was any error in their refusal. (Town of Leroy v. Mo Connell, 8 Kas. 273.)

The judgment of tbe district court will be affirmed.

All the Justices concurring.