Opinion
Filed September 3, 1901.
1. COMPLAINT — Objections to, Waived, When. The objection that a criminal complaint is verified on information and belief, is waived by pleading to the merits, or entering into a recognizance for. appearance at a future day.
2. VERIFICATION — Sufficient, When. A verification on information and belief is sufficient for every purpose except merely the issuing of the warrant for the arrest of the defendant, and the objection to such verification must be made by motion to quash the warrant before plea to the merits, or other steps are taken which will operate as a waiver of such defect.
(Syllabus by the Court.)
Original Proceeding in Habeas Corpus.
Robert A. Lowry, for petitioner.
J. C. Strang, per contra.
Opinion of the court by
The petitioner, Charles Cummings, seeks to be discharged from a commitment based upon a judgment of the police judge of the city of Stillwater, adjudging him guilty of violating one of the ordinances of said city. The complaint was verified on information and belief; the petitioner was arrested, and when brought before the police court was arraigned and entered a plea of not guilty, and was released on his own recognizance for his appearance at a future day, and the cause was continued. Subsequent to this he filed a motion to quash the warrant, for the reason that the complaint or information upon which the warrant was issued was not properly verified.
A verification of a criminal complaint on information and belief is sufficient for every purpose, except merely the issuing of the warrant for the arrest of the defendant, and the objection to the verification must be made by motion to quash the warrant before plea to the merits, or other steps taken which will operate as a waiver of the defect in the verification.
A plea to the merits, or entering into a recognizance for appearance at a future day, is a waiver of any defect in the verification. ( State v. Barr, 54 Kan. 230; State v. Blackman, 32 Kan. 615; State v. Otey, 7 Kan. 69; State v. Hook, 4 Kan. App. 451, 46 P. 44; Baily v. State, 55 N.W. 241; State v. Bjorkland, 34 Kan. 377; State v. Longton, 35 Kan. 375; State v. Ruth, 21 Kan. 583; People v. Murphy, 56 Mich. 546; Washburn v. People, 10 Mich. 372; People v. Williams, 93 Mich. 623; People v. Harris, 61 N.W. 871.)
By pleading not guilty to the charge contained in the complaint, consenting to a continuance, and agreeing to appear for trial at a future day, the petitioner waived any defect in the verification, and his motion to quash the warrant came too late. As to whether a prosecution for violation of a city ordinance is a civil or criminal action we indicate no opinion in this cause.
The application is refused, at the costs of the petitioner, and prisoner remanded to custody of officer.
All of the Justices concurring.