State v. Harp

• Decision Date: 06 March 1884
• Parties: THE STATE OF KANSAS v. HARRY HARP
• Court: Kansas Supreme Court

3 P. 432

31 Kan. 496

THE STATE OF KANSAS v. HARRY HARP

Supreme Court of Kansas

March 6, 1884

Appeal from Chautauqua District Court.

THE appellant, Harry Harp, was convicted of murder in the second degree, at the November Term, 1883, of the district court and sentenced to confinement and hard labor in the penitentiary of the state for a period of ten years. The following is a copy of the information, (omitting caption and verification):

"I Ben. S. Henderson, county attorney in and for the said county of Chautauqua, state of Kansas, in the name and by the authority of the state of Kansas, come now here and give the court to understand and be informed that one Harry Harp, on or about the 11th day of August, 1882, at and within the said county of Chautauqua, with a deadly weapon, to wit, a large knife or dirk, which he, the said Harry Harp, then and there held in his hand, and then and there did strike at and upon the body of one August Bendrup, and did then and there willfully, deliberately, premeditatedly and with malice aforethought, cut and stab said August Bendrup in the abdomen, thereby inflicting upon the body of the said August Bendrup one certain mortal wound, whereof he, the said August Bendrup, then and there died. Wherefore, it is hereby charged that the said Harry Harp, on or about the 11th day of August 1882, at and within the county of Chautauqua and state of Kansas, did willfully and feloniously, deliberately and premeditatedly kill and murder the said August Bendrup contrary to the statute in such case made and provided, and against the peace and dignity of the state of Kansas, and is therefore guilty of the offense of murder in the first degree."

After the verdict the appellant moved in arrest of judgment, for the reason that the information charges no offense under the statute. The motion was overruled, and the appellant excepted. He appeals.

Judgment affirmed.

M. B. Light, and W. P. Hackney, for appellant.

W. A. Johnston, attorney general, and Edwin A. Austin, for The State.

HORTON C. J. All the Justices concurring.

OPINION

HORTON, C. J.:

I. It is insisted that the information is insufficient, in that it fails to state with certainty the time the fatal assault was made, the time when the fatal wound was inflicted, or when the same caused death. Further, it is insisted that the information does not fix or state a day or year upon which the alleged offense was committed. The information alleges that whatever was done unto the deceased was "on or about the 11th day of August, 1882," and that "the said August Bendrup then and there died." In view of the provisions of our criminal code, the words "or about" have no meaning in the information, and may properly be treated as surplusage. They could have made no difference in the proof required, and could in no way have prejudiced the defendant's rights. (Crim. Code, §§ 105, 110; The State v. Barnett, 3 Kan. 250; The State v. Tuller, 34 Conn. 280; Hampton v. The State, 8 Ind. 336; The People v. Littlefield, 5 Cal. 355; The People v. Kelly, 6 id. 210; Farrell v. The State, 45 Ind. 371; The State v. Elliot, 34 Tex. 148.)

Treating the words "or about" as mere surplusage, the information charges the assault was made on August 11, 1882, that the fatal wound was inflicted on August 11, 1882, and that the deceased died on August 11, 1882.

II. It is contended that the information states and describes three acts or things done by the defendant, and three only, and that these acts or things are separately stated and have no connection with each other; that the three acts or things stated are, "the defendant then and there held in his hand a large knife or dirk," and "then and there did strike at and upon the body of one August Bendrup," and "did then and there . . . cut and stab the said August Bendrup in the abdomen." The information in fact charges, among other things, that the defendant, "on August 11, 1882, did willfully deliberately, premeditatedly, and with malice aforethought, cut and stab the said August Bendrup in the abdomen, thereby inflicting upon the body of the said August Bendrup one certain mortal wound, whereof he, the said August Bendrup, then and there died;" and then closes with the charge "that the defendant, on August 11, 1882, at and within the county of Chautauqua and state of Kansas, did willfully, feloniously, deliberately and premeditatedly kill and murder the said August Bendrup, . . . and is therefore guilty of the offense of murder in the first degree." The information is somewhat awkwardly drawn, and omits, as in the case of Smith v. The...