State v. Cashman

• Decision Date: 11 April 1953
• Docket Number: No. 38823,38823
• Citation: 174 Kan. 272,255 P.2d 660
• Parties: STATE v. CASHMAN.
• Court: Kansas Supreme Court

Page 660

255 P.2d 660

174 Kan. 272

STATE v. CASHMAN.

No. 38823.

Supreme Court of Kansas.

April 11, 1953.

Syllabus by the Court.

1. An information charging the unlawful sale or disposal of mortgaged personal property in violation of G.S.1949, 58-318, which fails to allege that the mortgage constituted a valid and subsisting lien upon the property at the time of the alleged offense is fatally defective.

2. The fact a trial court sees fit to sustain a motion to quash the original information in a criminal action after the prosecution has ceased, for all practical purposes, to rely on that pleading by reason of having filed an amended information does not result in error of which the state can complain on appellate review.

3. In this jurisdiction for the purpose of stopping the running of the statute of limitations a criminal prosecution is deemed commenced upon the filing of a verified complaint and the issuance of a warrant in good faith.

4. The statute, G.S.1949, 62-505, providing that where an information shall be quashed the time during which the same was pending shall not be computed as part of the time of the limitation prescribed for the offense, does not restrict its operation to any particular cause or causes for which the information may be quashed, hence it includes any and all grounds which may be held by the court to be sufficient grounds for quashing the information.

5. In a criminal prosecution under a second or amended information a prior information charging the same offense, which has been quashed or set aside, need not be valid to toll the running of the statute of limitations.

6. Under the provisions of G.S.1949, 62-808, relating to the amendment of informations in criminal cases the state, prior to arraignment and plea, has an absolute right to amend in any respect, either in substance or form, without leave of court.

7. The record in a criminal prosecution of the character described in the first paragraph of this syllabus examined, and it is held, that under the facts and circumstances set forth in the opinion the trial court erred in striking the amended information from the files.

Robert M. Finley, Co. Atty., Hiawatha, and Charles Rooney, of Topeka, were on the brief for the appellant.

No appearance for appellee.

PARKER, Justice.

This is an appeal by the state in a criminal action from orders of the trial court sustaining a motion to quash the information and, on its own motion, striking an amended information from the files.

The defendant has made no appearance. However, an examination of the state's brief makes it appear that the controlling facts are not in dispute and may be stated in summarized fashion.

In April 1950 a complaint was filed in the county court of Brown county charging the defendant, H. M. Cashman, in five counts, with the unlawful sale or disposal of mortgaged personal property (cattle) on divers dates, namely, March 5, 1949, April 4, 1949, May 19, 1949, and July 14 and 16, 1949, in violation of the provisions of G.S.1949, 58-318. The defendant was arrested, given a preliminary examination, and in due course bound over for trial by the district court on the charges which had been made against him. Subsequently, and on October 12, 1950, an information, charging him in the language of the complaint with commission of the offenses for which he had been committed for trial, was filed in the district court. Thereafter, on his application, the cause was continued at succeeding terms of court until the May 1952 term of the district court of Brown county.

On May 8, 1952, the defendant moved to quash the information for the reason it failed to state a public offense, the principal ground relied on being that no count thereof contained an allegation that defendant was the mortgagor, nor that the mortgage held by the mortgagee was a valid and subsisting lien on the animal or animals therein described on the date of their sale or disposal.

On May 9, 1952, obviously because of the action taken by defendant on the preceding day, counsel for the state, prior to the former's arraignment and before he entered any plea, filed an amended information which was identical with the original excepting that each count thereof included an allegation to the effect that defendant was the mortgagor of the property in question and that on the date of its alleged sale or disposal the First National Bank of Wetmore, Kansas, had a valid and subsisting lien thereon.

After being advised of the filing of the amended information the court directed the attorney for the defendant to proceed with argument on the motion to quash the original information. The state objected to this action for the reason any decision with respect thereto would involve a moot question because of the filing of its amended pleading. Notwithstanding this objection the court proceeded with the hearing on such motion and ultimately held that it should be sustained. After this ruling certain proceedings were had in connection with the amended information which had best be described in the language of the court's own journal entry. They read:

'Thereupon, the court stated that an amended information had been filed in the above entitled cause under date of May 9, 1951, at 11:55 o'clock A.M., and that said amended information, by the court's own motion, without the defendant having filed any pleadings thereto, should be ordered stricken from the file for the reason that allowing same to stand would be equivalent to filing a new information on charges against which the statute of limitation has run and that since no public offense was charged in the first information, the State of Kansas is not now capable of amending the information and reviving the action against the defendant by filing an amended information.'

Following the foregoing rulings the state gave notice of appeal and now, under proper specifications of error, charges the trial court erred in quashing the original information and in striking the amended information from the files on its own motion.

Apparently recognizing our decisions, see State v. Ferron, 122 Kan. 845, 253 P. 402, hold that in a prosecution instituted under the provisions of 58-318, supra, an information charging the unlawful sale or disposal of mortgaged property is fatally defective if it fails to allege the mortgage held by the mortgagee was a valid and subsisting lien on the property the appellant does not seriously contend its original information was sufficient to withstand the attack made against it by the motion to quash. Instead, it bases its claims such motion was erroneously sustained on the premise all questions with respect thereto became moot upon the filing of its amended information. Conceding, that after the filing of an amended information in a criminal action, there may be situations in which a ruling on a motion to quash the original information is neither necessary nor required we find nothing in the statute prohibiting or precluding a trial court from ruling thereon if, for purposes of completing the record or some reason deemed sufficient to warrant that action, it sees fit to do so. What has just been said is enough to dispose of this claim of error. Even so there is another sound ground for rejecting it. On appeal this court is directed, G.S.1949, 62-1718, to disregard technical errors or defects which do not prejudice or affect the substantial rights of the parties. In the instant case appellant's rights must stand or fall on the status of its amended information. In that situation appellant's substantial rights were neither prejudiced nor affected by the ruling...