
    James Redmond and others v. State of Kansas.
    
    July Term, 1873.
    1. Recognizance: Preliminary Examination: Venue: Presumption. Where a defendant has had a full and fair preliminary examination before a justice of the peace upon a charge for committing a public offense, and none of the evidence introduced on the preliminary examination is reduced to writing, and the other proceedings before the j ustice, had prior to the preliminary examination, do not show whether the offense was committed in the county or not, and the defendant is bound over by the-magistrate for his appearance at the next term of the district court to-answer to said charge, and the defendant, with sureties, enters into a recognizance for such appearance, it will be presumed, in the absence of any showing to the contrary, that the decision of the justice was founded upon sufficient evidence, and said recognizance will be held to be valid.
    2. Preliminary Examination: Complaint: Warrant. The original complaint, made in a criminal proceeding for the arrest and examination of an alleged offender, has spent its force when the warrant of arrest is issued. The preliminary examination is had upon the warrant of arrest, and not upon the original complaint.
    3. -: Different Offense. The original complaint and warrant of arrest may charge one offense, and the defendant may be bound over for another if it shall appear on the examination that he is guilty of a public offense other than that charged in the warrant. In such a case, in justice to the defendant, a new complaint ought to be filed, but the statute does not in terms require it.
    [4. Complaints: Construction. The same strictness is not required in a complaint, in charging an offense as in an information or indictment.],
    [5. Preliminary Examination: Presumption. When the evidence is not reduced to writing, it will be presumed, in the absence of any showing to the contrary, that the evidence was sufficient to authorize the decision of the magistrate, whatever that decision may be.]
    Error from Coffey district court.
    Action upon a forfeited recognizance, brought in the name of the state by the county attorney, against James Redmond and Samuel C. Jenkins as sureties, and Samuel Huntzinger as principal, in said recognizance. The defendants answered, alleging that the justice before whom Huntzinger was examined, and who took the recognizance, had no jurisdiction over the alleged offense, and that said recognizance was void. The case was tried at the May term, 1872, of the district court. Judgment for the state, and the defendants bring the case here on error.
    
      Peyton é Gillett, for plaintiffs in error.
    The court below erred in that the record of examination before the justice does not show that the offense charged was Committed in said Coffey county, and does not show that said justice had jurisdiction to bind over said Huntzinger. The court should have found for the said plaintiffs in error upon the evidence of the entries from the justice’s docket. See Barkeloo v. Randall, 4 Blackf. 478; Vosburgh v. Welch, 11 Johns. 175; Curry v. Pringle, Id. 444; Johnson v. Tompkins, 1 Baldw. 571; Gold v. Bissell, 1 Wend. 210; Elliott v. Peirsol, 1 Pet. 340; Wise v. Withers, 3 Cranch, 331; Beebe v. Scheidt, 13 Ohio St. 415; Prather v. Pritchard, 26 Ind. 65; Cooley,. Const. Lim. 406; Fisher v. Shattuck, 17 Pick. 252. In order to give the justice jurisdiction, the jurisdictional facts must affirmatively appear upon the record, when one is required to be kept, which is the-case in this state. Justice’s Act, § 188. The record is the only legitimate evidence by which to prove the jurisdiction. It cannot be done by parol testimony. Allen v. Corlew, 10 Kan. 70, 73; 1 Greenl. Ev. § 513; Swift v. Tousey, 5 Ind. 157; Bigelow v. Stearns, 19 Johns. 39; Burge v. Dishman, 5 Blackf. 273.
    
      A. M. F. Randolph and R. M. Ruggles, for the State.
    The real question for this court is, did the court below err in admitting parol testimony of the fact that the offense was committed in Coffey county? We think not. There is no law requiring a justice; of the peace to keep any minute or record of his proceedings in a preliminary examination. The statute requiring a justice to keep a docket applies only to civil matters. There is no law requiring him to enter a criminal complaint or process upon his docket, and the docket is not evidence of matters not required to be kept in it, or at least not conclusive. Justice’s Act, §§ 188,189 ; Baker v. Brintnall, 52 Barb. 188. The justice’s conclusions from his examination of the complainant, and other witnesses if there be any, fixes his jurisdiction to issue the process; and a mere clerical omission in the process will not vitiate, especially where the defendant therein has not been prejudiced thereby, for that fact may surely be proved by the same kind of evidence with which it was first proved to the magistrate. Walker v. Moseley, 5 Denio, 105; Payne v. Barnes, 5 Barb. 465. In this case the justice having jurisdiction to hold the examination, he could (the evidence being sufficient) require the then defendant, Hunt-zinger, to give bail for his appearance for trial. He did so, and the recognizance was taken, and is valid.
    *The parties having voluntarily entered into the recogniz anee for their own convenience, they cannot now question the right of the justice to require one of them to do so. After once admitting by their act that he did have the right, (especially in this collateral way, at least,) the burden is upon the defendants to show' a want of jurisdiction in the justice. Champlain v. People, 2 N. T. 82; Gilder-sleeve v. People, 10 Barb. 40; People v. Kane, 4 Denio, 530; People v. Millis, 5 Barb. 515.
    
      
       See Gay v. State, 7 Kan. 246, and note.
    
   Valentine, J.

This was an action on a criminal recognizance .given by the defendants below (plaintiffs in error) for the appearance of the defendant Huntzinger in the district court of Coffey county, to answer to the charge of assault with intent to kill. The reeogni.zance was given in pursuance of a preliminary examination had before a justice of the peace of said county. The judgment in the court below was for the state, and the defendants now claim that the judgment should be reversed, principally on the ground that the record •of the justice of the peace before whom the preliminary examination was had does not show that the offense charged was committed in Coffey county. This may all be true, and still the recognizance may be valid. All that is necessary in order to render a recognizance given in pursuance of a preliminary examination'valid, is that there should have been a fair and reasonable preliminary examination, founded upon a previous complaint and warrant of arrest, from which it may be seen what offense w'as intended to be charged. It is the preliminary examination, and not the previous proceedings, that gives power to the magistrate to commit or bind over; and the justice may or may not, at his option, keep a full record of the preliminary examination. Crim. Code, § 51. It is undoubtedly true that the original complaint, and the original warrant for the arrest of the defendant, should each show where the offense is charged to have been committed; and if the question were raised at the proper time, and in the proper way, it should not be ignored. But a failure to make these instruments show said fact would not *at all invalidate a subsequent preliminary examination, nor the subsequent warrant of commitment, nor subsequent recognizance founded thereon.

The original complaint, and the warrant of arrest are the only portions of the proceedings connected with a preliminary examination, and not subsequent thereto, which are required to show in miting where the offense charged is claimed to have been committed. The original complaint, however, does not perform the office of a pleading. The preliminary examination is not founded upon the original complaint in the same way that a trial is founded upon an information or an indictment, and therefore the same strictness is not required in the original complaint that is required in an information or-an indictment. The original complaint has spent its force when the order of arrest is issued, and the order of arrest is the foundation for-the preliminary examination. When the defendant is arrested, under the order of arrest he may be taken before any magistrate of the county (Crim. Code, §§ 36, 37) for the purpose of letting him enter into a recognizance, (section 40;) or he may be taken “before the magistrate who issued the warrant, or in his absence, before some other-magistrate of the county in which the warrant was issued,” (section 42,) for the purpose of having a preliminary examination; and the preliminary examination is then had upon the warrant of arrest, and not upon the original complaint, (section 55.) It is not necessary that the magistrate before whom the preliminary examination is had should ever see the original complaint. “If it shall appear to the magistrate, upon the whole examination, that no offense has been committed, or that there is not probable cause for charging the prisoner-with the offense, (if any offense has been committed,) he shall be discharged.” Crim. Code, § 52. If it shall appear from the preliminary examination that the defendant is guilty of the offense charged in the warrant of arrest, then he is committed to jail, or required to enter into a recognizance, etc., (sections 53, 54;) but “if upon the trial [preliminary examination] it shall appear that the defendant is guilty of a, public offense, other than that *charged in the. warrant, he shall be held in custody of the officer, and tried for such offense, a reasonable opportunity having been given him to obtain his-witnesses and prepare his defense,” (section 55.) It will therefore be seen that the original complaint and the warrant of arrest may charge one offense, and the defendant may be bound over for another. In such a ease, in justice to the defendant, a new complaint ought to be filed, but still the statute does not in terms require it.

There seems to be no question about the fullness, fairness, and reasonableness of the preliminary examination had in this case. Every necessary fact except one seems to have been sufficiently charged, and every fact charged seems to have been sufficiently proved. This necessary fact not charged was the county where the offense was committed. The proceedings prior to the preliminary examination do not show where the offense was committed, except, possibly, by a remote inference they show that it was committed in Coffey county. The fact that the offense was committed in Coffey county was the only fact attempted to be proved in the preliminary examination which was not sufficiently charged, and this fact was amply proved on the preliminary examination, as was abundantly shown by the parol evidence introduced on the trial in the district court. The defendant had ample time — five days — given him from the time he was first taken before the magistrate until the preliminary examination was had, in which to prepare to disprove said fact, if it were not a fact. But he did not attempt to disprove it. The testimony taken on the preliminary examination was not reduced to writing, and it is not necessary that it should have been. Crim. Code, § 51. When the evidence is not reduced to writing, we think it will be presumed, in the absence of any showing to the contrary, that the evidence was sufficient to authorize the decision of the magistrate, whatever that decision may be. Everything else necessary to uphold the judgment of the district court was sufficiently shown in that court, and therefore the judgment of the district court must be affirmed.

Kingman, C. J., concurring.  