State v. Chinault
| Citation | 40 P. 662,55 Kan. 326 |
| Parties | THE STATE OF KANSAS v. LEVI CHINAULT |
| Decision Date | 08 June 1895 |
| Court | United States State Supreme Court of Kansas |
Appeal from Wyandotte Court of Common Pleas.
LEVI CHINAULT was convicted of an assault with intent to rob. He appeals. The opinion states the facts.
Judgement reversed.
F. E & L. A. Smith, and W. H. Littick, for appellant.
F. B Dawes, attorney general, Samuel C. Miller, and I. F. Bradley for The State.
OPINION
The defendant was charged, by information, by the county attorney of Wyandotte county, with assaulting one Charles Reese with a deadly weapon with intent to rob him. The defendant thereupon filed his plea in abatement, alleging that he had been once placed in jeopardy for the same offense; that on the 11th day of October, 1894, he was placed on trial in the district court of Wyandotte county, on an information charging the identical offense alleged in the information in this case; that after the jury had been impaneled and sworn, and witnesses for the state had testified, the jury was discharged by the court, on account of the illness of the wife of one of the jurors, and the case continued to the next term of the court, and that said case is now pending undetermined in said district court. To this plea the county attorney answered, admitting the commencement of the former trial, but alleging that after a legal determination by the court of the fact of the sickness of juror's wife, and that an accident and calamity required the discharge of the jury, the case was continued to the next term of the court. The answer admits that the charge pending in the district court was for assault with intent to kill, and that it is still pending in said court. To this answer the defendant demurred. His demurrer being overruled, he was placed on trial in the court of common pleas and convicted.
While the plea alleges former jeopardy, and is insisted on as a bar to any further prosecution, it also fairly presents the question whether the court of common pleas had jurisdiction to try the defendant. It appears that the prosecution was first instituted in the district court for this identical assault, but that in the information in that case it was alleged to have been made with intent to kill, while in this case the intent is alleged to have been to rob. Both informations charge offenses under the same section of the statutes, viz.: Section 38 of the act regulating crimes and punishments. Both informations refer to the same acts, the only difference being that a different criminal purpose is attributed to the defendant. We think under this section the substantive offense is the assault. The intent with which it was committed characterizes it and determines its degree of criminality. Only one prosecution can be maintained under this section for the same assault, whatever the purpose of the defendant may have been. The case presented, then, is one of a criminal prosecution pending in the district court of Wyandotte county, on a charge of assault with intent to kill, and another prosecution subsequently commenced in the court of common pleas of the same county, charging the identical assault with the intent to rob. The jurisdiction of the court of common pleas to try the defendant was duly challenged. Had it jurisdiction to try the case? The district courts of the state are courts of general original jurisdiction for the trial of criminal causes. By chapter 92 of the Laws of 1891, the court of common pleas of Wyandotte county was established. By the fourth section of the act it is provided:
"All indictments and informations which shall be filed in criminal actions or proceedings in...
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Rodgers v. Pitt
... ... petition may be briefly stated, in their chronological order, ... as follows: On November 30, 1892, there was filed in the ... state court a complaint in a suit wherein J. H. Thies, P. N ... Marker, and H. C. Marker were plaintiffs, and W. C. Pitt, J ... T. Hauskins, and L. L ... 192; Louden Irrigating Canal ... [96 F. 671] ... Handy ... Ditch Co., 22 Colo. 102 114, 43 P. 535; State v ... Chinault, 55 Kan. 326, 329, 40 P. 662 ... The ... general rule, as above stated, is clear, plain, and positive ... There is no room for any ... ...
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...265, wherein the Court recognized the rule of the Rodgers case. 'Also cited in the Milano opinion are two Kansas decisions, State v. Chinault, 55 Kan. 326, 40 P. 662, and State v. Brannon, 6 Kan.App. 765, 50 P. 986. The law of Kansas, however, as announced in the more recent case of State e......
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