State v. Baker

• Decision Date: 05 December 1896
• Docket Number: 10645
• Citation: State v. Baker, 57 Kan. 541, 46 P. 947 (Kan. 1896)
• Parties: THE STATE OF KANSAS v. J. H. BAKER
• Court: Kansas Supreme Court

46 P. 947

57 Kan. 541

THE STATE OF KANSAS v. J. H. BAKER

No. 10645

Supreme Court of Kansas

December 5, 1896

Decided July, 1896.

Appeal from Jewell District Court Hon. Cyrus Heren, Judge.

REVERSED AND REMANDED.

THE appellant was arrested and taken before a justice of the peace under a warrant which thus described the offense:

"That on the 26th day of September, 1894, in Jewell County, and State of Kansas, one J. H. Baker did then and there unlawfully, feloniously, intentionally, designedly by false pretense with intent to cheat and defraud one H. H Huntsinger, obtain from H. H. Huntsinger by means of said false pretenses 33 cases of eggs of the value of one hundred twenty-five and 40/100 (125.40) dollars, the property of the said H. H. Huntsinger."

The complaint described the offense in the same manner.

Before the examination, however, the County Attorney filed an amended complaint, the only difference between which and the information afterward filed in the District Court was that in the particular averments set forth below, the words in italics were not in the amended complaint but were inserted in the information:

"Did falsely pretend and represent to the said H. H. Huntsinger that he, the said J. H. Baker, had money deposited in the Bank at Burr Oak Kansas subject to his order and check and that he had arrangements made with the said bank whereby the said bank would cash all his checks as soon as presented; and that he had arrangements made with the Mankato Produce Company to ship eggs in partnership."

The information did not describe the check nor set it forth; and aside from the above averments and the averment that the representations were false, the only reference to the check was as follows:

"That the said H. H. Huntsinger believing and relying upon the said statements and representations of the said J. H. Baker, so made as aforesaid, to be true, and being deceived thereby was induced by the said false representations and statements so made by the said J. H. Baker as aforesaid, to deliver over and sell to the said J. H. Baker 33 cases of eggs of the value of $ 3.80 per case and of the total value of $ 125.40 the property of the said H. H. Huntsinger, and to take his, the said J. H. Baker's, check on the said bank in payment for the said eggs; the said check being at the time worthless and of no value whatever, as the said J. H. Baker very well knew at the time That said J. H. Baker by the means of the said false pretenses," etc.

All other facts essential to a full understanding of the case are given in the opinion.

Judgment reversed.

T. S. Kirkpatrick and R. W. Turner, for appellant.

F. B. Dawes, Attorney General, M. R. Sutherland, and E. P. Hotchkiss, for the State.

JOHNSTON J. All the Justices concurring.

OPINION

JOHNSTON, J.

J. H. Baker was convicted of obtaining property by means of false pretenses. In the information it was alleged in substance that Baker obtained from H. H. Huntsinger 33 cases of eggs worth $ 3.80 per case, of the total value of $ 125.40, by falsely representing and pretending that he had money on deposit in the bank at Burr Oak subject to his check, whereas he had no money on deposit there and had no arrangement with the bank to cash his checks when presented. It is averred that Huntsinger, relying on the representations so made, did sell and deliver the eggs and took in payment therefor Baker's check, which was of no value whatever; and that by means of the false pretenses and with the intent to cheat and defraud Huntsinger, he obtained property to the amount and value of $ 125.40.

The defendant filed a plea in abatement upon the ground that he had not had a preliminary examination for the offense charged; or, rather, that he was not advised by the one had of the offense set out in the information. A preliminary examination was had, and upon an examination of the preliminary papers it is clear that he could not have misapprehended the character and nature of the charge made against him. It is not necessary that there should be the same fullness of statement in the warrant or preliminary papers that is required in the information. We think no error was committed in overruling the plea in abatement. The State v. Tennison, 39 Kan. 726, 18 P. 948; The State v. Smith, 50 id. 69; The State v. Myers, 54 id. 206.

The sufficiency of the information was questioned by a motion to quash, upon the ground that the check was not particularly set out in the information with an averment of its delivery and acceptance. The check was only a step in the transaction, or an incident of the offense, and a particular description of the same was unnecessary. The amount for which the eggs were sold is alleged, and it is also stated that a check was taken by Huntsinger in payment of the purchase price. We think the information was sufficient and that the motion to quash was properly overruled.

The next complaint is that the Court erred in compelling the defendant to go to trial without arraignment. After the motion to quash had been overruled, "the Court without further plea by the defendant and without objecting or assenting thereto other than his silence, and without the waiver of the defendant to further plead, and without said defendant announcing that he was ready for trial, directed the County Attorney to proceed with the examination of the regular panel of jurors," etc., and the jury were then empaneled ...