State v. Bugg

• Decision Date: 11 April 1903
• Docket Number: 13,104
• Parties: THE STATE OF KANSAS v. BENJAMIN BUGG
• Court: Kansas Supreme Court

72 P. 236

66 Kan. 668

THE STATE OF KANSAS v. BENJAMIN BUGG

No. 13,104

Supreme Court of Kansas

April 11, 1903

Decided January, 1903.

Appeal from Crawford district court; W. L. Simons, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

A. A Godard, attorney-general, C. C. Coleman, attorney-general, J. J. Campbell, J. M. Wayde, and D. H. Woolley, for The State.

B. S. Gaitskill, and Arthur Fuller, for appellant.

GREENE J. All the Justices concurring.

OPINION

GREENE, J.:

This is an appeal from a conviction of burglary and larceny. The information charged the appellant with burglary in the night-time of a one-story building situated within the curtilage of a dwelling-house but not "gorming" a part thereof, in which were at the time goods, wares, and merchandise. At the trial the appellant objected to the admission of evidence under the information for the reason that it did not charge a burglarious breaking into, and entering of, the dwelling-house or any building within the curtilage of the dwelling-house and not forming a part thereof. This objection was upon the ground that in that part of the information describing the building alleged to have been burglarized a mistake was made in spelling the word "forming." As will be observed, it was spelled "gorming." When this was called to the attention of the court, the county attorney, with the consent of the court, corrected the mistake and reverified the information. The objection to the introduction of evidence was overruled, and this is one of the alleged grounds of error.

The mistake in spelling the word and the correction of it were mere matters of form, and not of substance. The correction was not prejudicial to the rights of appellant. Such amendments may be made after the trial has commenced, at the discretion of the court. Section 72 of the criminal code (Gen. Stat. 1901, § 5513) reads:

"An information may be amended in matter of substance or form at any time before the defendant pleads, without leave. The information may be amended on the trial as to all matters of form, at the discretion of the court, when the same can be done without prejudice to the rights of the defendant. No amendment shall cause any delay of the trial, unless for good cause shown by affidavit."

See The State v. Pryor, 53 Kan. 657, 37 P. 169; The State v. Spencer, 43 id. 114, 23 P. 159; The State v. Cooper, 31 id. 505, 3 P. 429; The State v. McDonald, 57 id. 537, 46 P. 966.

Complaint is made that after the information was amended the defendant was not again arraigned. This was unnecessary. Where an information is amended at the trial in form only, a rearraignment. is not required.

There was no evidence tending to show that the building alleged to have been burglarized was within the same enclosure with the dwelling. In defining the term "within the curtilage of a dwelling," the court said: "That is, such frame building must have been then and there situated and standing near to, and in the same yard with, said dwelling-house, and used in connection with said dwelling-house, but not forming a part of said dwelling-house."

It is contended by the appellant that inasmuch as the court instructed the jury that it must find that the building burglarized was "in the same yard with said dwelling-house," and as there was no evidence to show that it was within the same enclosure,...