State v. Chaplain

• Decision Date: 07 July 1917
• Docket Number: 21,279
• Citation: 101 Kan. 413,166 P. 238
• Parties: THE STATE OF KANSAS, Appellee, v. A. R. CHAPLAIN, Appellant
• Court: Kansas Supreme Court

166 P. 238

101 Kan. 413

THE STATE OF KANSAS, Appellee, v. A. R. CHAPLAIN, Appellant

No. 21,279

Supreme Court of Kansas

July 7, 1917

Decided July, 1917.

Appeal from Cloud district court; JOHN C. HOGIN, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. CRIMINAL LAW--Interpretation of Statute Copied from Another State. When the courts of a state for many years have given their own interpretation to a statute copied from the laws of another state, it is of no importance that such interpretation does not harmonize with the interpretation given to that statute in the state from which it was adopted.

2. SAME--Embezzlement--Statute Interpreted. Section 3463 of the General Statutes of 1915, which declares that any carrier or other bailee who embezzles property, etc., in his possession shall be guilty of larceny, is intended not only to cover offenses of carriers and bailees of the nature and class of carriers, but is intended also to cover embezzling offenses of any class of bailees, and it covers the offense of a bailee who embezzles a piano left in his custody by its owner.

3. EMBEZZLEMENT--Information--Includes Crime of Larceny. Where a penal statute declares that one who commits embezzlement shall be adjudged guilty of larceny, a charge of embezzlement which also includes an allegation that the defendant "did steal, take and carry away" the article embezzled is not bad for duplicity.

4. TRIAL--No Error in Record. A miscellaneous assignment of minor errors noticed in the opinion which needs no discussion.

5. EMBEZZLEMENT--Trial--Excluded Evidence--No Prejudicial Error. It is not prejudicial error to exclude evidence tending to show that the prosecuting witness and the defendant in a criminal case had conducted negotiations looking toward a satisfaction of the private wrong committed by the defendant against the witness, in consideration for which the witness was to withdraw the charge of the public offense involved in the same wrong.

6 SAME--Instructions. Instructions given and refused examined and no errors disclosed therein.

7. NEW TRIAL--Impeaching Testimony. Rule followed that the belated presentation of impeaching testimony is not sufficient to compel the granting of a new trial.

8. NEW TRIAL--Newly Discovered Evidence--Want of Diligence. Rule followed that the trial court must be satisfied with defendant's diligence in preparing his defense before he will be entitled to a new trial on account of evidence which was not on hand at the trial.

Homer Kennett, and Olin Hunter, both of Concordia, for the appellant.

S. M. Brewster, attorney-general, and M. V. B. Van De Mark, county attorney, for the appellee.

Dawson J. West, J., dissents.

OPINION

DAWSON, J.:

This action was a prosecution for the embezzlement of a piano. The defendant, a piano dealer in Concordia, sold the piano to the prosecuting witness for $ 325, taking her promissory note therefor. At the time of the sale the purchaser paid $ 50 in cash, which payment was indorsed on the note and two days later the defendant discounted and sold the note to a stranger. The piano was purchased as a wedding present for the purchaser's daughter, and defendant agreed to keep the piano until after the daughter's marriage and then ship it to the daughter at Iola. Defendant defaulted in both these particulars. The state's evidence tended to prove that defendant employed a drayman to haul the piano to the railway depot and shipped it out of town. Plaintiff's evidence does not clearly show where or to whom the piano was shipped, but did show that it was effectually made away with. Defendant's evidence tended to show that he had formerly sold the piano on installments to one Shinn; that Shinn had defaulted on his payments; that defendant had taken back the piano, and that he sold it to the prosecuting witness subject to the possibility of Shinn's resumption of payments and the reinstatement of his right to the piano; and it might be equivocally inferred from defendant's evidence that he intended to supply another piano in its stead, but whether to prosecutrix or to Shinn is mere conjecture so far as the record discloses. Other features of defendant's evidence were that the wholesale house in St. Joseph which supplied defendant with pianos sent a man to take charge of defendant's business in Concordia and that the latter, and not the defendant, had caused the piano to be shipped out of town and disposed of. Much correspondence between the prosecuting witness and the defendant was introduced, but no purpose would be served by detailing it here. The jury found the defendant guilty as charged.

Many errors are urged; few require discussion, and none are serious.

It is first urged that the motion to quash the information should have been sustained. The information was drawn under section 3463 of the General Statutes of 1915, which provides that if any carrier or other bailee shall embezzle or convert to his own use, or make way With or secrete, any goods or property under his care, etc., he shall upon conviction be adjudged guilty of larceny, etc. Defendant contends that this statute being copied from the Missouri crimes act, should be construed here as there, and that in Missouri the scope of this statute has been restricted by the doctrine of ejusdem generis to bailees of the nature and classification of carriers. The doctrine of ejusdem generis is all right in a limited way, and the same is true as to the rule that when a statute of another state is adopted the antecedent, authoritative interpretations of that state are likewise adopted; but the latter rule is not an invariable one, nor is it followed where the foreign interpretation is too severe a shock to the intelligence of the courts of the adopting state. (The State v. Campbell, 73 Kan. 688, 85 P. 784, syl. P 7, 85 P. 784.) Moreover, when the adopting state has given the statute its own interpretation and applied that interpretation for a long stretch of years without amendment by its own legislature, the presumption that the foreign interpretation at variance therewith was adopted with the act no longer obtains. In time, when many independent interpretations of the act have been made by the adopting state, it is no longer of any consequence what were the interpretations given to the act before its adoption from the foreign state. This section of the crimes act has never been interpreted--or perverted--in Kansas to mean that only a bailee like a carrier or akin to a carrier could be prosecuted or punished under its terms. It was held in this state nearly forty years ago to apply to a bailee who embezzled a gelding (The State v. Small, 26 Kan. 209); it has been applied many times to bailees other than carriers and not of the classification of carriers, non ejusdem generis, who embezzled public funds (The State v. Spaulding, 24 Kan. 1); also to embezzlers of private funds (The State v. Combs, 47 Kan. 136, 27 P. 818); and to a warehouseman charged with the embezzlement of quantity of wheat (The State v. Wales, 98 Kan. 790, 160 P. 204). A multitude of such cases could be...