State v. Hart
| Decision Date | 07 March 1885 |
| Parties | THE STATE OF KANSAS v. LOUIS HART |
| Court | Kansas Supreme Court |
Appeal from Cloud District Court.
INFORMATION charging Louis Hart with an attempt to carnally and unlawfully know a female child under the age of ten years. The defendant was tried at the August Term, 1884, and found guilty as charged. The court overruled his motions for a new trial and in arrest of judgment, and sentenced him to be confined in the state penitentiary for one year. Hart appeals. The opinion contains a sufficient statement of the case.
Judgment affirmed.
L. J Crans, for appellant.
G. P Smith, attorney general, for The State; Edwin A. Austin, of counsel.
JOHNSTON, J., not sitting.
OPINION
This was a criminal prosecution upon an information charging the defendant with an attempt to carnally and unlawfully know a female child under the age of ten years. The prosecution was under §§ 283 and 31 of the crimes and punishments act. The defendant was convicted, and sentenced to the penitentiary for one year. He appeals to this court.
The principal points made by counsel for the defendant are as follows: First, the information does not; charge any offense; second, the court below erred in overruling the defendant's plea of former jeopardy; third, the verdict of the jury does not respond to the charge made in the information.
We shall consider the second point first, and the other two afterward. We think the defendant's plea of former jeopardy was rightfully overruled. It appears from the record that the defendant had formerly been tried and convicted upon an information setting forth a criminal charge similar to the charge made in the present case. Now if the information in the former case did not charge the same offense as, or an offense included in or including the present offense, or did not charge any offense at all, then of course the ruling of the court below was correct. But, for the purposes of t his case, we shall assume that the information in the former case did charge precisely the same offense as was charged in the present case; and upon this assumption, was the ruling of the court below erroneous? We think not. The defendant was tried and convicted upon the former charge, and after his conviction he moved for a new trial, which was granted; and then a new information was filed, upon which the present conviction and sentence were had. The record of the proceedings upon the first information, after setting forth all the proceedings down to and including the verdict, then sets forth the following, among other things:
"On the second day of May, 1884, the said defendant, Louis Hart, filed his motion for a new trial, and to vacate and set aside the said verdict, which motion is in the words and figures following, to wit:
'IN THE DISTRICT COURT OF CLOUD COUNTY, KANSAS.--The State of comes the defendant Kansas, Plaintiff, v. Louis Hart, Defendant.--And now comes the defendant and moves for a new trial, for the reasons:
'1. The verdict is contrary to the evidence.
'2. The verdict is contrary to the law.
'3. Errors of law occurring during the trial, excepted to by the defendant at the time.
'4. Errors in accepting evidence.
'5. Errors in rejecting evidence.
'6. The information does not state sufficient facts to constitute an offense.
'7. The information and the evidence do not show or prove any offense under the laws of Kansas.
L. J. CRANS, Attorney for Defendant.'
The journal entry contains, among other things, the foregoing motion for a new trial, and then contains the following:
It will be seen from the foregoing, that the defendant moved for a new trial upon various grounds, among which were the following:
The court granted the new trial, as prayed for in the defendant's motion. The court also found that the information "did not state facts sufficient to constitute the offense of which the defendant is found guilty," and ordered that a new information be filed by the county attorney, which was done. By these proceedings, we think the defendant waived his right to subsequently plead former jeopardy. In this state, a criminal information may be amended in a matter of substance or in form. (Cr. Code, § 72.) And--
"When it...
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State v. McCowan
...a criminal prosecution, the granting of the same places the party accused in the same position as if no trial had been had. (State v. Hart, 33 Kan. 218, 6 P. 288; State v. Spendlove, 47 Kan. 160, 28 P. 994; State v. Chance, 82 Kan. 388, 108 P. 789; and State v. Bloomer, 197 Kan. 668, 421 P.......
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State v. Hess
...defendant in the same position as if he had never been tried before. (G.S.1949, Section 62-1602; State v. McCord, 8 Kan. 232; State v. Hart, 33 Kan. 218 ; State v. Hess, 178 Kan. 452 .) What was there about defendant's appeal which prevented the State from proceeding with the retrial? The S......
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State v. Young
...the statutes in 1871 in State v. McCord, 8 Kan. (2d ed.) *232, and the same has been adhered to without deviation ever since. (State v. Hart, 33 Kan. 218, 6 P. 288; State v. Terreso, 56 Kan. 126, 42 P. 354; In re Christensen, 166 Kan. 671, 203 P.2d 258; State v. Neff, 169 Kan. 116, 125, 218......
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State v. Hess
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