State v. Carey

The opinion of the court was delivered by Maktin, C. J.

: I. The plea in abatement is urged on the authority of The State v. Gleason, 32 Kan. 245 ; but in that case the prosecution was commenced in the district court, and the information was verified by the county attorney only upon information and belief. Section 15 of the bill of rights provides that “no warrant shall issue but on probable cause supported by oath or affirmation,” and this court held that the verification of the information was neither an oath nor an affirmation ; and this position is supported by City of Atchison v. Bartholow, 4 Kan. 124, 139 , 140 ; and Thompson v. Higginbotham, 18 id. 42, 44. In the Gleason case, therefore, no legal foundation had been-laid for issuing the warrant, and, its validity having been challenged at the first opportunity, this court held that the defendant ought to have been discharged until the information should be veri *87 fied, and a new warrant issued thereon. In the case at bar the complaint was regúlar in form, and was supported by the oath of Thomas Cahill, and this conferred jurisdiction, and authorized the justice to issue the warrant without the calling in of other witnesses, as authorized by section 36 of the code of criminal procedure. (¶5099, Gen. Stat. 1889.) Counsel for defendant cite no authority in support of their óontention, that on a plea in abatement the question can be tried either with or without a jury as to the extent of the knowledge of the person who makes oath to the complaint, and we know of none. It is therefore quite immaterial in this case whether, upon a plea in abatement raising an issue of fact, the trial of such issue should be by the court or by a jury. The complaint was in due and legal form, as was the warrant issued upon it, and we must hold that the arrest of the defendant was fully authorized by law, and that the court committed no error in refusing to hear evidence in support of the plea.

II. It was the duty of the clerk of the court to make out a copy of the information, and cause the same to be delivered to the defendant, or his counsel, at least 48 hours before the arraignment.. (¶ 5223, Gen. Stat. 1889.) There is no specific requirement .of a-certificate by the clerk under the seal of the court to the correctness of the copy, although it is the better practice to attach such certificate and seal. The certificate of the clerk here was in good form, except that the seal was not affixed ; but we are required to give judgment without regard to technical errors or defects, or to exceptions which do not affect the substantial rights of the parties.' (¶ 5355, Gen. Stat. 1889 ; Laurent v. The State, 1 Kan. 313 ; Millar v. The State, 2 id. 175 ; The State v. Winner, 17 id. 298.) There is no claim that *88 the copy of the information delivered to the defendant was not full, true, and correct, as certified by the clerk, and, if it was irregular to omit the seal, the error was immaterial, and not prejudicial to the defendant.

III. James Clune was killed by the defendant on Tuesday, April 30. The defendant claims that the act was committed in self-defense. On the Sunday night next preceding, Clune, one O’Brien, the defendant, and perhaps some others, were engaged in an affray, and there was considerable evidence that on Sunday night, Monday and Tuesday Clune made threats that he would kill the defendant on sight, and some of these threats were communicated to the defendant. On Tuesday the defendant and one Buffing-ton were driving a team through an alley in Kansas City, Kanv when they saw Clune and OjBrien with some other persons in a barn abutting on the alley. The defendant offered to show by his own testimony and that of Buffington that he then expressed his fears to Buffington in words something like these : '‘ There are those fellows. They will get me.” But the evidence was excluded on the ground that it was a declaration of the defendant in his own interest. Counsel claimed that, as the homicide occurred only about three minutes afterward, and within 150 feet from the place where this expression' is alleged to have been used, it ought to have been admitted, if not as part of the res gestee, at least as showing the state of mind of the defendant very shortly before the fatal shot was fired, and which might'be presumed to continue until that event. Buffington was allowed to testify that at this time he told the defendant, in substance, to sit 'still, and they wouldn’t hurt him, which implies that the defendant had expressed or manifested some fear. The evidence for the prosecution tended to *89 show that the defendant and Buffington drove on a little way and stopped at Buffington’s house on the alley, and that Clune and O’Brien, coming out of the barn, passed by the wagon, and when they were opposite the horses the defendant, without warning or present provocation, shot Clune, who fell dead, and the defendant then jumped from the wagon, running after O’Brien, and firing one shot at him. The defendant testified that when Clune was opposite the horses he reached down and got a brickbat and threatened to kill the defendant with it, when he shot; and his statement was in a measure corroborated by Buffington. Under the circumstances, we hold that the court did not err in excluding the declaration of the defendant to Buffington. It was not part of the res gestae. No trouble had occurred that day, and neither Clune nor O’Brien had made any hostile demonstration at that time. The declaration was of a self-serving character, such as a man might easily frame in anticipation. of the commission of a crime, to be used afterward in exculpation of his guilt. (1 Greenl. Ev. § 108 ; The State v. Montgomery, 8 Kan. 351, 361 ; The State v. Pomeroy, 25 id. 349, 351.) And, even if it were admissible, we think its exclusion would not be material error, for the state of mind of the defendant might well be inferred from the other testimony in his behalf on the hypothesis of its being true. The defense was based entirely upon what took place after the team stopped at Buffington’s house, and Clune and O’Brien had passed the wagon. If the jury gave credit to the defendant’s testimony as to the hostile demonstration with the brickbat and the threats said to accompany it, evidently they did not believe that the defendant was justified in taking Clune’s life.

*90 No other points having been argued orally or in the defendant’s briefs, the judgment must be affirmed.

All the Justices concurring.