State v. Fields

• Citation: 78 P. 833,70 Kan. 391
• Decision Date: 01 December 1904
• Docket Number: 14,016
• Parties: THE STATE OF KANSAS v. CARRIE FIELDS
• Court: United States State Supreme Court of Kansas

78 P. 833

70 Kan. 391

THE STATE OF KANSAS v. CARRIE FIELDS

No. 14,016

Supreme Court of Kansas

December 1, 1904

Decided July, 1904.

Appeal from Wallace district court; JAMES H. REERDER, judge.

Judgment reversed and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

1. CRIMINAL LAW -- Receiving Stolen Property -- Insufficient Information. The words, "the aforesaid neat cattle," used as a description of property in a count of an information charging the offense of receiving stolen property, are alone insufficient for that purpose; and they are likewise insufficient to incorporate into that count allegations of number, sex, age, color and brands characterizing cattle fully described in the preceding count.

2. CRIMINAL LAW -- Larceny and Receiving Stolen Property Held Separate Crimes. Larceny and receiving stolen property are separate and distinct crimes, and the waiver of a preliminary examination on a warrant charging larceny only will not authorize the filing of an information charging the offense of receiving stolen property.

C. C Coleman, attorney-general, W. H. Wagner, county attorney, and Roark & Roark, for The State.

M. A. Chambers, for appellant.

BURCH J. All the Justices concurring.

OPINION

BURCH, J.:

On April 9, 1902, a complaint was filed before a justice of the peace of Logan county, charging appellant with the larceny of certain cattle. On the same day a warrant for his arrest was issued and served, which followed the language of the complaint in describing the offense. He waived a preliminary examination, and on the same day an information was filed in the district court of the county named charging him with larceny of the cattle described in the complaint and warrant. To this information he pleaded not guilty. On June 30, 1902, an amended information in two counts was filed, charging him in the first with larceny as before, and attempting to charge him in the second with receiving stolen cattle. A plea in abatement was duly filed to the second count, alleging that appellant was not a fugitive from justice, had not been given a preliminary examination upon the matters charged, and had not waived that step in the proceedings. A motion to quash the second count of the information was likewise duly filed, setting up two grounds of insufficiency, one being indefiniteness and uncertainty in the allegations made, and the other the want of sufficient allegations to constitute a public offense. The motion and plea were both overruled, and appellant pleaded not guilty.

After several trials, and after a change of venue to Wallace county, a verdict was finally returned against appellant for receiving stolen property, as charged in the second count. Motions for a new trial and in arrest of judgment were made and denied, and judgment duly rendered upon the verdict. On this appeal it is urged that the motions to quash and in arrest of judgment should have been allowed because no property was described in the second count of the information, the description given being simply "the aforesaid neat cattle."

It is elementary law in this state that each count of an information must in itself state all the facts necessary to constitute the gravamen of the offense. Each one must be as complete as if it stood alone and were the sole pleading. This is the rule even in civil cases; and even in civil cases when, for the sake of brevity, avail is made of matter already alleged elsewhere it must be distinctly and intelligibly referred to, and by such reference must be incorporated into, and made a part of, the adopting count. (Gilchrist v. Schmidling, 12 Kan. 263, 269, and cases there cited; L. N. & S. Rly. Co. v. Wilkins, 45 id. 674, 26 P. 16.)

Greater laxity cannot be permitted in criminal cases.

"On the face of the indictment, 'every separate count should charge the defendant as if he had committed a distinct offense, because it is upon the principle of the joinder of offenses that the joinder of counts is admitted.'

"Each count in an indictment must be sufficient in itself, and averments in one cannot aid defects in another.

"To some extent the pleader may avoid repetitions by referring from one count to another.

"The reference must be so full and distinct as, in effect, to incorporate the matter going before with that in the count wherein it is made." (1 Bish. New Crim. Proc. §§ 426, 429, 431. See, also, 10 Encyc. Pl. & Pr. 540 et seq.)

Evidently the pleader intended the words "the aforesaid" to relate to the cattle fully described in the first count, but they were inadequate to complete the second count. As used, the scope of their reference is confined to the count in which they are found, and since no description of cattle appears there the charge was simply that the appellant received neat cattle. This case bears some analogy to that of Regina v. Martin, 9 Car. & P. 215, used by Bishop to illustrate the text already quoted.

"A first count charged an assault on 'Esther Ricketts, an infant above the age of ten and under the age of twelve years,' with intent to carnally know her; the second charged a different form of attempt on 'the said Esther Ricketts.' Thereupon this reference was held not to carry with it the allegation in the first count that Esther Ricketts was 'an infant above the age of ten and under the age of twelve years.'" (1 Bish. New Crim. Proc. § 431.)

So, here, the words "the aforesaid" preceding the words "neat cattle" could not transfer to the second count the allegations of number, sex, age, color and brands characterizing the cattle described in the first count.

Without an identification of the stolen property received, the defendant cannot know the charge against him, and the record of his conviction or acquittal can afford him no protection against a subsequent prosecution. Therefore, it is the rule that a failure to describe with accuracy the property involved is fatal, unless it be averred that a further description is unknown. (17 Encyc. Pl. & Pr. 889, 890; Rap. Larc. & Kind. Off. § 317; 2 Bish. New Crim. Proc. § 982.) Such being the law, the motion to quash and the motion in arrest of judgment were both well founded.

A preliminary examination is a...