State v. Combs

• Decision Date: 10 October 1891
• Citation: 47 Kan. 136,27 P. 818
• Parties: THE STATE OF KANSAS v. WILLIAM COMBS
• Court: Kansas Supreme Court

27 P. 818

47 Kan. 136

THE STATE OF KANSAS v. WILLIAM COMBS

Supreme Court of Kansas

October 10, 1891

Appeal from Harvey District Court.

PROSECUTION for embezzlement. From a conviction at the May term, 1891 the defendant, Combs, appeals. The facts sufficiently appear in the opinion.

Judgment affirmed.

J. B Crouch, and Madden Bros., for appellant.

John N Ives, attorney general, and C. S. Bowman, county attorney, for The State.

JOHNSTON J. All the Justices concurring.

OPINION

JOHNSTON, J.:

This was a prosecution for embezzlement, under § 90 of the crimes act. The defendant was convicted, and the judgment of the court was, that he should be confined at hard labor for a term of two years in the state penitentiary. The information under which he was convicted charged as follows:

"That on the 10th day of March, 1891, in said county of Harvey and state of Kansas, one A. M. Fearn did intrust to William Combs, for safe custody, $ 530, current money of the United States, of the value of $ 530, he, the said William Combs, receiving and accepting the same as the bailee of said A. M. Fearn; that said $ 530 consisted of United States national bills, commonly called greenbacks, and national bank bills, silver certificates, and gold certificates. The denominations and names of each are unknown to said A. M. Fearn, the prosecuting witness, or your informant, but they all pass as current money of the United States, and all were of the value of $ 530. That after the said William Combs received said current money, as aforesaid, as such bailee, and on said 10th day of March, 1891, at the county of Harvey, in the state of Kansas, did then and there unlawfully and feloniously embezzle and convert to his own use, and make way with and secrete said $ 530, current money of the United States, and of the value of $ 530, belonging to and being then and there the money and property of said A. M. Fearn, without the authority, knowledge or consent of said A. M. Fearn, and then and there, in the manner aforesaid, the said money, the property of the said A. M. Fearn, did unlawfully and feloniously steal, take, and carry away, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the state of Kansas."

After the verdict, the defendant moved to arrest the judgment, upon the ground that the facts stated in the information did not constitute a public offense. This motion was denied, but the defendant still insists that the information was fatally defective, and on that ground he asks a reversal. Three objections are urged against the information: (1) That it does not specify the nature of the bailment; (2) that it contains no allegation of intent; and (3) that it does not describe the money alleged to have been embezzled with a reasonable degree of certainty.

It is to be observed that the sufficiency of the information was not raised by a motion to quash, nor until after trial and verdict, when the motion in arrest of judgment was interposed. "It was then too late to avail himself of technical error in form or mere imperfection in the statement of the complaint. Defects in a criminal pleading which might be held bad on a motion to quash, if one was made, are not always sufficient after a verdict of guilty to arrest a judgment." (City of Kingman v. Berry, 40 Kan 625, 20 P. 527; The State v. Knowles, 34 id. 393; The State v. Ratner, 44 id. 429.) Although the charge does not fully state...