State v. Hendren

• Decision Date: 09 February 1929
• Docket Number: 28,250
• Citation: 127 Kan. 497,274 P. 274
• Parties: THE STATE OF KANSAS, Appellant, v. W. T. HENDREN, Appellee
• Court: Kansas Supreme Court

274 P. 274

127 Kan. 497

THE STATE OF KANSAS, Appellant, v. W. T. HENDREN, Appellee

No. 28,250

Supreme Court of Kansas

February 9, 1929

Decided January, 1929.

Appeal from Cherokee district court; JOHN W. HAMILTON, judge.

Appeal sustained.

SYLLABUS

SYLLABUS BY THE COURT.

1. CRIMINAL LAW--Double Jeopardy--Proceeding in Court without Jurisdiction. Where the evidence of the state in a criminal case shows that the offense charged in the information was not committed in the county where it is being tried and that the court has no jurisdiction, it is the duty of the court to order the venue corrected and direct the transfer of the cause to the proper county under R. S. 62-1442, and under such circumstances the defendant cannot be considered as having been put in jeopardy by the proceedings in a court that had no jurisdiction in the premises.

2. SAME -- Evidence -- Similar -- Distinct Offenses -- Indorsement of Witnesses. It is largely discretionary with the trial court as to the indorsement on the information of names of additional witnesses during the progress of the trial, but because such witnesses are expected to testify as to the commission of separate and distinct offenses of a similar kind and character to that charged in the information they are not necessarily incompetent witnesses nor is their testimony immaterial to show inclination, tendency, attitude and intent of the defendant. (State v. Rook, 61 Kan. 382, 59 P. 653; State v. Aurell, 112 Kan. 821, 212 P. 899; State v Stiff, 118 Kan. 208, 234 P. 700.)

William A. Smith, attorney-general, Leon W. Lundblade, assistant attorney-general, Leo Armstrong, county attorney, and C. E Rumery, assistant county attorney, for the appellant; Al F. Williams and Don H. Elleman, both of Columbus, of counsel.

V. J. Bowersock, of Baxter Springs, and F. W. Boss, of Columbus, for the appellee.

OPINION

HUTCHISON, J.:

This is an appeal by the state upon a question reserved, as authorized by R. S. 62-1703. The errors thus assigned by the state were the refusal of the trial court to permit the county attorney to indorse on the information the names of three witnesses of whom the state had recently acquired knowledge subsequent to the filing of the information, whose testimony was claimed to be material, and the sustaining of an objection to their testimony as outlined in the following offer:

"The state offers to show by the testimony of the three witnesses, whose names were furnished the defendant, other offenses alleged to have been committed by the defendant which are in no way connected with the offense for which the defendant is now being tried, except that the alleged offenses are similar in character and are used and offered by the state for the purpose of showing the intent of the defendant by such proof of other and similar offenses."

A preliminary question is submitted to this court by the defendant, who moves to dismiss the appeal because the defendant has been once in jeopardy and the question reserved is moot.

The defendant with another was charged jointly in the district court of Cherokee county with the offense of blackmailing under R. S. 21-2412 and in a second count with robbery in the third degree. This is the separate trial of the defendant Hendren before a jury on his plea of not guilty.

The first count of the information charged the defendant with sending a threatening letter by mailing it at the post office at Parsons, Kan., and through the mail regularly delivering it to one Paul Goodeagle at Baxter Springs, Kan. The statute makes it an offense where such a letter is "sent or delivered" by the defendant to another. The court will take judicial knowledge that Baxter Springs is in Cherokee county and that Parsons is in Labette county. The evidence shows that the letter was mailed by the defendants in the post office at Parsons, addressed to Paul Goodeagle at Baxter Springs, with postage prepaid, and went from Parsons by mail to the post office at Baxter Springs, and thence by rural route across the state line into Oklahoma, where Goodeagle was temporarily staying with his mother-in-law, and delivered to him there.

It is only a reasonable construction of the statute to hold that either the sending or the delivery of the letter will constitute an offense thereunder and that both are not necessary to be proved. It was the very evident purpose of the county attorney by alleging the letter was mailed at Parsons in Labette county, and that it was delivered at Baxter Springs in Cherokee county, to rely upon the delivery to constitute the offense, for by alleging the sending of it from Parsons in another county he is precluded from establishing an offense for sending it. It is now argued that the evidence shows it was written by the defendants at Baxter Springs and carried by them to Parsons, where they parted with it by depositing it in the post office, and that because it started on its journey at Baxter Springs it can now be considered as having been "sent" from Baxter Springs; but we think not, because, as stated above, the state is precluded from now saying it was sent from a different place from that stated in the information, viz., Parsons.

The defendant very naturally at the close of the testimony by the state, with no proof of the letter being either sent from or delivered in Cherokee county, moved the court to discharge the defendant and also discharge the jury as to the first count. There was certainly merit in the motion, for the trial court was shown by the evidence to be without jurisdiction. The charge was, under this proof, brought in the wrong county or state. The court offered to send it to Labette county under the provisions of R. S. 62-1442, but the state would not consent. The motion of the defendant was then sustained and the defendant...