A person upon whose oath a criminal information for a libel is
filed, and who is found by the jury, as part of their verdict
acquitting the defendant, to be the prosecuting witness, and to
have instituted the prosecution without probable cause and with
malicious motives, and is thereupon adjudged by the court to pay
the costs, and to be committed until payment thereof, in accordance
with the General Statutes of Kansas of 1889, c. 82, § 326, and
who does not appear to have been denied at the trial the
opportunity of offering arguments and evidence upon the motives and
the cause of the prosecution, is not deprived of liberty or
property without due process of law or denied the equal protection
of the laws contrary to the Fourteenth Amendment of the
Constitution of the United States.
An information, in the name and behalf of the State of Kansas,
by J. V. Beekman, the County Attorney of Chatauqua County, against
one F. Keifer, for a criminal libel upon Sandy
Page 163 U. S. 82
Lowe was filed September 28, 1889, in the district court of that
county and state, and was afterwards, upon the defendant's motion
for a change of venue, transferred to the district court of Elk
County for trial.
Annexed to the information was the affidavit of Lowe, subscribed
and sworn to before the clerk of the court, "that the allegations
and averments contained in the foregoing information are true."
The General Statutes of Kansas of 1889 contain the following
provisions:
By § 309 of chapter 31, regulating crimes and
punishments,
"in all indictments or prosecutions for libel, the jury, after
having received the direction of the court, shall have the right to
determine at their discretion, the law and the fact."
By § 326 of chapter 82, establishing a code of criminal
procedure,
"whenever it shall appear to the court or jury trying the case
that the prosecution has been instituted without probable cause and
from malicious motives, the name of the prosecutor shall be
ascertained and stated in the finding, and such prosecutor shall be
adjudged to pay the costs, and may be committed to the county jail
until the same are paid, or secured to be paid."
At the trial of this information, the court, in charging the
jury, after reading these statutes and giving directions as to the
law of libel, further instructed the jury as follows:
"You will observe that section 326 aforesaid provides that the
jury may in any case find that the prosecution has been instituted
without probable cause and from malicious motives, and, when the
jury do so find, it is their duty to state the name of the
prosecuting witness in their finding, and in such case the
prosecuting witness may be by the court adjudged to pay the costs
in the case, and he may be by the court committed to the jail until
the same are paid, or secured to be paid, and in this case, if you
are of the opinion that the provision of said section ought to be
enforced, you are at liberty to and ought to enforce the same."
"You will observe from section 309, above quoted, that you
Page 163 U. S. 83
are, in your discretion, the judges of both the law and the fact
of this case; and this being so, we can only direct you as best we
may to the law of the case."
The jury returned the following verdict:
"We, the jury impaneled and sworn in the above-entitled case do,
upon our oaths find the defendant not guilty, and we do further
find that this prosecution was instituted without probable cause
and from malicious motives, and that the name of the prosecuting
witness is S. Lowe."
The court, "being satisfied therewith, ordered that the same
stand as and for the verdict of the jury," and thereupon ordered
"that the defendant, F. Keifer, be discharged and go hence without
day."
Lowe then moved that so much of the verdict as found "that this
prosecution was instituted without probable cause, and from
malicious motives," be set aside, and that he have a new trial in
that respect, upon the reasons
"that the said S. Lowe, upon the trial already had, has not been
heard, and could not be heard, either in person or by counsel, in
his own defense, touching the matter and things above mentioned as
stated and contained in said verdict, being neither plaintiff nor
defendant in this prosecution,"
and that the verdict was contrary to the law and the evidence,
and that the instructions aforesaid were erroneous, and he also
moved in arrest of judgment for the same reasons, and because
"he has the right, by the law of the land, to be so heard in his
own defense, and to a separate trial concerning his liability as
prosecuting witness in this action, which separate trial he hereby
demands of this Court."
The court overruled both motions and, upon a further hearing on
the verdict, adjudged that "the prosecuting witness, S. Lowe, in
the above-entitled action, pay all costs of said action, taxed at
$1,053.40," and be committed to the county jail until he paid the
costs or executed a sufficient bond to pay them within six
months.
To all these instructions and rulings, and to the judgment
aforesaid, Lowe excepted, and tendered a bill of exceptions which
was allowed by the court.
Page 163 U. S. 84
Lowe appealed to the supreme court of the state, which affirmed
the judgment upon an opinion of the supreme court commissioners
holding that the constitutionality of section 326 of chapter 82 had
been settled by the decision of
In re Ebenhack, 17 Kan.
618 (in which the supreme court upheld the constitutionality of the
similar provision of section 18 of chapter 83, concerning
proceedings before justices of the peace for misdemeanors), and
that according to the decision of the supreme court in
State v.
Zimmerman, 31 Kan. 85, as the jury were expressly authorized
by the statute to determine both the law and the fact, neither the
trial court nor the appellate court of the state had power to
interfere with the verdict. 46 Kan. 255.
A motion for a rehearing was overruled by the supreme court of
the state in an opinion which, after citing the decision in
Ebenhack's Case, proceeded and concluded as follows:
"After a defendant is acquitted, the state is not entitled to a
new trial before a jury as to which party must pay the costs. The
prosecuting witness is so connected with the state in the trial
that, after the acquittal of the defendant, he cannot demand a
retrial upon the evidence before another jury. If costs are
improperly taxed by the court after the acquittal of the defendant,
of course, a motion can be made for the retaxation, and a proper
inquiry may be had thereon. In this case it appears that the
district court approved the verdict of acquittal, and also the
finding of the jury against the prosecuting witness. Therefore, in
this case the court below pronounced judgment of acquittal, and for
the commitment of the prosecuting witness, in accordance with its
own opinion, not merely the opinion of the jury."
47 Kan. 769, 770.
Lowe thereupon sued out this writ of error, contending that he
had been deprived of his liberty or property without due process of
law and had been denied the equal protection of the laws, contrary
to the Fourteenth Amendment of the Constitution of the United
States.
Page 163 U. S. 85
MR. JUSTICE GRAY, after stating the case, delivered the opinion
of the Court.
The Code of Criminal Procedure of the Kansas provides that
"whenever it shall appear to the court or jury trying the case
that the prosecution has been instituted without probable cause and
from malicious motives, the name of the prosecutor shall be
ascertained and stated in the finding, and such prosecutor shall be
committed to to pay the costs, and may be committed to the county
jail until the same are paid, or secured to be paid."
Kansas Gen.Stat. of 1889, c. 82, § 326.
The only question presented by the record for the determination
of this Court is whether this enactment, as applied by the Supreme
Court of Kansas to this case, contravenes the Fourteenth Amendment
of the Constitution of the United States by depriving Lowe of his
liberty or property without due process of law or by denying him
the equal protection of the laws.
Whether the mode of proceeding prescribed by this statute and
followed in this case was due process of law depends upon the
question whether it was in substantial accord with the law and
usage in England before the Declaration of Independence, and in
this country since it became a nation, in similar cases.
Murray v. Hoboken
Co., 18 How. 272,
59 U. S. 277;
Dent v. West Virginia, 129 U. S. 114,
129 U. S.
124.
By the common law, at first, while no costs,
eo nomine,
were awarded to either party, yet a plaintiff who failed to recover
in a civil action was amerced
pro falso clamore. Bac.Abr.
"Costs," A;
Day v.
Woodworth, 13 How. 363,
54 U. S. 372.
And from early times, the legislature and the courts in England and
America, in order to put a check on unjust litigation, have not
only, as a general rule, awarded costs to the party prevailing in a
civil action, but have not infrequently required actual payment of
costs, or security for their payment, from the plaintiff in a civil
action, or even from the prosecutor in a criminal proceeding.
For instance, plaintiffs have been required by general statute
or by special order to give security for the costs of the
Page 163 U. S. 86
action or to pay the costs of a former suit before suing again
for the same cause.
Shaw v.
Wallace, 2 Dall. 179;
Hurst v. Jones, 4
Dall. 353 [omitted];
Henderson v.
Griffin, 5 Pet. 151,
30 U. S. 159.
Third persons allowed to intervene on condition of giving bond to
pay costs may be compelled to do so by attachment without remitting
the payee to suit upon the bond.
Craig v. Leitensdorfer,
127 U. S. 764,
127 U. S. 771. And
in an information to enforce a charitable trust, a relator is
required, who may be compelled, if the information is not
maintained, to pay the costs.
Attorney General v. Smart, 1
Ves.Sr. 72 and note;
Attorney General v. Butler, 123 Mass.
304, 309.
English statutes, from long before the American Revolution,
authorized costs against informers upon a penal statute, or against
private prosecutors of an indictment or information, to be awarded
by the court, either absolutely or unless the judge before whom the
trial was had certified that there was probable cause for the
prosecution. Stats. 18 Eliz. c. 5; 27 Eliz. c. 10; 4 W. & M. c.
18, § 1; 13 Geo. III. c. 78, § 64; Bac.Abr. "Costs," E;
The King v. Heydon, 1 W.Bl. 356,
s.c., 3 Burrow
1304;
The King v. Commercell, 4 M. & S. 203;
The
Queen v. Steel, 1 Q.B.D. 482. In like manner, by the act of
Congress of May 8, 1792, c. 36, section 5,
"if any informer or plaintiff on a penal statute, to whose
benefit the penalty or any part thereof, if recovered, is directed
by law to accrue, shall discontinue his suit or prosecution, or
shall be nonsuit in the same, or if upon trial a verdict shall pass
for the defendant, the court shall award to the defendant his
costs, unless such informer or plaintiff be an officer of the
United States specially authorized to commence such prosecution,
and the court before whom the action or information shall be tried,
shall at the trial in open court, certify upon record, that there
was reasonable cause for commencing the same, in which case no
costs shall be adjudged to the defendant."
1 Stat. 277. And that provision has been substantially reenacted
in section 975 of the Revised Statutes.
If the statute of Kansas now in question had provided that, upon
the failure of the prosecution, the prosecutor should be absolutely
liable to pay the costs, and should be committed
Page 163 U. S. 87
until he paid or secured them, there could have been no doubt of
the validity of the statute. Or if the statute had made him liable
for costs, unless the court before which the trial took place
certified that there was probable cause for instituting the
prosecution, its validity would have been equally clear. The
liability imposed upon him by the statute is less than in either of
the cases supposed. He is not made absolutely liable for the costs,
nor is a certificate of probable cause required to protect him from
liability. But the burden is thrown upon the defendant of proving
want of probable cause, as well as malicious motives, on the part
of the prosecutor, before the latter can be charged with the
costs.
In the case at bar, there can be no doubt of the prosecutor's
identity, for he signed and made oath to the information, and was
named in the verdict. Being the actor in the litigation, he had no
right to complain of being obliged, if unsuccessful, to pay the
costs upon the conditions previously prescribed by the legislature.
Whether the question of probable cause for the prosecution, as
affecting the question of costs, should be tried and determined by
the court or the jury, and with or after the main question of the
guilt of the defendant, is matter of convenient practice, not of
constitutional right. A prosecution for libel, at least, can hardly
be tried without exhibiting to the court and jury the motives and
grounds of action of the prosecuting witness. It is not to be
doubted that by virtue of the statute, he had the right, if
seasonably claimed, to be heard and to introduce evidence at the
trial of the case upon the question whether he instituted the
prosecution without probable cause and from malicious motives. The
record transmitted to this Court omits all the oral testimony
offered at the trial, and contains nothing having any tendency to
show that at the trial he was denied the opportunity of offering
arguments or evidence in support of his good faith and probable
cause, or requested of the court any ruling or instruction upon
that subject. It was after the verdict had been rendered in
accordance with the statute, and after the trial court, "being
satisfied therewith," had approved it, that he appears for the
first time to have asserted (as a ground for setting aside that
Page 163 U. S. 88
part of the verdict which found "that this prosecution was
instituted without probable cause and from malicious motives") that
he had not and could not have been heard upon that matter at the
trial.
The supreme court commissioners, indeed, expressed an opinion,
based upon the decision in
State v. Zimmerman, 31 Kan. 85,
that the finding of the jury could not be reviewed by the court. 46
Kan. 255. But the supreme court of the state, in its opinion
delivered upon denying a motion for a rehearing, put the final
judgment upon the grounds that the prosecuting witness was so
connected with the state in the trial of the prosecution that he
was not entitled to a separate trial by another jury upon the
question of his liability for costs, and that
"the court below pronounced judgment of acquittal, and for the
commitment of the prosecuting witness, in accordance with its own
opinion, not merely the opinion of the jury."
47 Kan. 769. And there is nothing in the statute or in either of
the opinions delivered below to countenance the theory that the
prosecutor had not the right to be heard at the trial before the
jury upon every question which was to be determined by their
verdict. If any evidence offered upon one of the issues on trial is
incompetent upon the other issue, its effect must be restricted
accordingly by the instructions of the court, as in the case of two
persons indicted jointly, pleading separately, and tried together.
Sparf v. United States, 156 U. S. 51,
156 U. S.
58.
The necessary conclusion is that the proceeding by which
judgment for the costs of the prosecution was rendered against the
present plaintiff in error was due process of law.
As the statute is applicable to all persons under like
circumstances, and does not subject the individual to an arbitrary
exercise of power, it has not denied him the equal protection of
the laws.
Duncan v. State, 152 U.
S. 377.
Judgment affirmed.
MR. JUSTICE BROWN, dissenting.
Did the statute of Kansas require broadly that the prosecutor in
every criminal case should be held liable for costs, I
Page 163 U. S. 89
should have felt much less hesitation in acceding to the views
of the majority of the
Court, since the name of the prosecutor can easily be
ascertained either from the original complaint by an inspection of
the record, or from the testimony upon the trial, and I have no
doubt that it is within the competency of the legislature to make
him responsible for such costs.
But the difficulty with statute in question is that it makes him
responsible only upon the contingency that the prosecution was
instituted without probable cause and from malicious motives, and
authorizes the jury to find this fact from the testimony introduced
upon the trial of the principal case, without giving the prosecutor
any opportunity of rebutting such testimony, by proving that the
prosecution was instituted in good faith, and with probable cause
to believe that the defendant was guilty. Such evidence would be
obviously incompetent in the principal case, since the very
testimony that would tend to show probable cause and acquit him of
malicious motives would also tend to the prejudice of the
defendant, and would be inadmissible against him. For example,
suppose A should make a complaint against B for larceny, and upon
the trial, either by reason of the death, illness, or absence of
his witnesses, or through the efforts of B and his friends to
spirit them away, he might be unable to offer any testimony against
him, of course, B would be acquitted, and A would be adjudged
guilty of having instituted the prosecution maliciously and without
probable cause, notwithstanding that he might have been able to
show that he had made the complaint upon the statement of these
witnesses that they had seen B take the property, and had
afterwards seen it in his possession; such testimony would
obviously not have been admissible upon the trial B, since it would
not only have been hearsay, but would have seriously prejudiced him
in the eyes of the jury. At the same time, it would be obviously
necessary to the exoneration of A.
It is a fatal objection to the statute that it undertakes to
settle in one trial the rights of two parties to a criminal cause
whose interests are adverse, and to try two distinct and
disconnected issues,
viz., the guilt of the principal
defendant and
Page 163 U. S. 90
the innocence of the prosecutor, upon testimony applicable to
but one of such issues. It seems to me entirely clear that if the
prosecutor can be subjected to a judgment for costs and to
imprisonment without being able to lay before the jury the
testimony which would tend to his acquittal, he is deprived of his
liberty and property without due process of law, within the meaning
of the Fourteenth Amendment.
Notwithstanding that this was a prosecution for libel, in which
it might be expected that the motives of the prosecutor would
appear more clearly than in ordinary prosecutions, the statute
appears to have worked a peculiar hardship upon the defendant. As
stated in the opinion of the court, after the verdict was rendered,
Lowe moved to set the same aside so far as it bore against him,
upon the ground that he had not been heard, and could not be heard
in his own defense, and also moved in arrest of judgment upon the
same ground; but the court denied both motions, and, upon appeal to
the supreme court, that court held, following in that particular
State v. Zimmerman, 31 Kan. 85, that under section 326 of
the Criminal Code, above cited, the court had no power to set aside
a verdict of acquittal, and that it was equally powerless to set
aside the verdict against the prosecutor, inasmuch as it was a part
of the verdict of acquittal. In delivering the opinion, the court
says:
"The force of another universal practice of courts everywhere
ought to be adverted to, and that is that when a jury returns a
verdict of not guilty in a criminal case, the trial court has no
power to set it aside or modify it in any respect. These findings
against the prosecuting witness were a part of a verdict of a jury
in a criminal case, wherein express power by statutory enactment is
given a jury to determine both the law and the facts. The trial
court has no power to interfere with that verdict in any
prejudicial respect, and this Court is as powerless as the court
below."
In neither the principal opinion nor in the opinion upon motion
for a rehearing was there any intimation that the prosecutor had
been or could be heard in his own defense, notwithstanding his
whole case was rested upon that ground.
It results, then, that under the construction given by the
Page 163 U. S. 91
supreme court to this statute, the verdict and judgment against
the prosecutor, however unjust it may be, is one which no court has
power to set aside, because it is a part of the verdict of
acquittal of the defendant in the principal action, and the court
cannot set aside one part of the verdict without setting aside the
whole. If any further argument were needed to satisfy one of the
great injustice of this statute, it would seem that this
construction supplied it.
The unnecessary hardship of the statute is the more manifest
when compared with certain sections of the Revised Statutes of the
United States having a similar object. Thus, by section 970, when,
in certain prosecutions instituted by a collector of customs or
other officer, judgment is rendered for the claimant, but it
appears to the court that there was reasonable cause for the
seizure, the court shall cause the proper certificate thereof to be
entered, and the claimant shall not be entitled to costs, nor the
prosecutor be liable to suit. In such case, the certificate is
granted or refused by the court upon a hearing of both parties
subsequent to the trial of the main issue, and upon motion of the
United States for such certificate.
Averill v.
Smith, 17 Wall. 82;
United States v. Abatoir
Place, 106 U. S. 160;
United States v. Frerichs, 16 Blatchf. 547;
The City
of Mexico, 25 F. 924.
A similar procedure is contemplated by section 975, making the
informer of plaintiff in a penal statute liable for costs unless he
be an officer of the United States authorized to commence such
prosecution and the court, at the trial in open court, certifies
upon the record what was reasonable cause for commencing the same.
So also, by section 989, it is made the duty of the court to
certify that there was probable cause for certain acts done by the
collector or other officer, under which it has been decided that
the certificate may be granted by another judge than the one before
whom the verdict was rendered, and after an execution has issued,
as well as before.
Cox v. Barney, 14 Blatchf. 289. In all
these cases, a separate finding by the court is evidently
contemplated.
Indeed, in section 327 of the Criminal Procedure of Kansas,
immediately following the section by authority of which
Page 163 U. S. 92
judgment was entered in this case, it is provided that
"if a person charged with a felony shall be discharged by the
officer taking his examination, or if recognized or committed for
any such offense, and no indictment or information be preferred
against him, the cost shall be paid by the prosecuting witness
unless the court shall find that there was probable cause for
instituting the prosecution and that the same was not instituted
for malicious motives."
This section is apparently not obnoxious to the objection above
made, since it contemplates a hearing by the court upon the
question of probable cause and the motive for the prosecution.
In
State v. Ensign, 11 Neb. 529, the Supreme Court of
Nebraska, construing a statute similar to the one in question, held
that the legislature had exceeded its power. "The mere failure,"
said the court,
"to prove the charge made in a complaint is not conclusive
evidence of the want of probable cause or of malice. A party may be
convinced of the existence of a tippling or gambling shop at a
certain place, or of other means by which the morals of the
community are corrupted or debased, and yet, upon the trial, from
the peculiar or secret nature of the business, may be unable to
prove the charge. Does such a case, upon the trial, assume the form
of a contest between the accused and the accuser as to which shall
be imprisoned? We think not."
I do not think it constitutional to so frame a criminal law as
to make it incumbent upon the prosecutor to enter a complaint at
the peril of being mulcted in costs in case the prosecution was
malicious, without giving him an opportunity of showing that the
complaint was made in good faith, and with probable cause to
believe that the defendant was guilty.
For these reasons, I am unable to concur in the opinion of the
Court.
