State v. Hodges

• Decision Date: 07 February 1891
• Citation: 45 Kan. 389,26 P. 676
• Parties: THE STATE OF KANSAS v. IRA M. HODGES
• Court: Kansas Supreme Court

26 P. 676

45 Kan. 389

THE STATE OF KANSAS v. IRA M. HODGES

Supreme Court of Kansas

February 7, 1891

Appeal from Marshall District Court.

PROSECUTION for embezzlement. Judgment for The State, at the May term 1890. The defendant Hodges appeals. The facts are stated in the opinion.

Judgment affirmed.

Mann & Redmond, J. V. Coon, and W. J. Gregg, for appellant.

L. B Kellogg, attorney general, for The State.

VALENTINE J. All the Justices concurring.

OPINION

VALENTINE, J.:

This was a criminal prosecution upon information in which the defendant, Ira M. Hodges, was charged in eight separate counts with the commission of eight separate and distinct embezzlements of property belonging to the State Bank of Irving, a banking corporation, as officer, cashier and secretary of' such corporation. A trial was had before the court and a jury, and at the close of the evidence on the part of the state, the prosecution elected to dismiss the prosecution as to the eighth count and to proceed with the trial upon only the other seven counts, as follows: Upon the first six counts, upon the charges therein contained of actual embezzlement; and upon the seventh count, upon the charge of taking, making way with and secreting a certain diamond pin, with the intent to convert the same to the defendant's own use. And the prosecution also elected to rely for a conviction upon a separate and single transaction, as shown by the evidence for each separate count of the information. At the close of the trial the jury found the defendant guilty upon the first six counts, and not guilty as to the seventh; and the court sentenced the defendant to imprisonment in the penitentiary for terms aggregating six years upon the first, third, fourth and fifth counts only, as follows: Upon the first count for three years, and upon each of the other three counts for one year; and the defendant was not sentenced at all upon the second or sixth count, nor upon any other count except the first, third, fourth and fifth. The defendant now brings the case to this court for review.

I. The first alleged ground of error is, that the court below erred in refusing to grant the defendant a continuance. The ground for the continuance was, that the defendant in order to prepare for his defense needed to make an inspection of certain books, records and papers belonging to the State Bank of Irving, which books, records and papers were, and had been for a long time, in the custody of W. W. Armstrong, who was the receiver of said bank; that the defendant had not been able to procure such books, records and papers. The offenses with which the defendant was charged and found guilty, were charged to have been committed, and were, in fact, committed, during the month of November, 1889. When this prosecution was commenced is not shown, but it was probably commenced soon after the time of the alleged commission of the offenses. The information, however, was not filed until May 3, 1890, and this application for a continuance was made on May 8, 1890. Now if these books, records and papers should be considered as being in the custody of the prosecution, which they were not, then the defendant's remedy to obtain an inspection or copies of them was under § 209 of the criminal code, and §§ 368 and 369 of the civil code. But if they should be considered as being in the custody of W. W. Armstrong, the receiver, as in fact they were, then the defendant could have procured an inspection or copies of them by merely applying to the court or judge for an order to that effect upon the receiver. And of course the defendant had the power to obtain them as evidence at the trial by merely causing a subpoena duces tecum to be issued for them. (Civil Code, § 325.) But he took no legal steps to compel the production of the books, records and papers for his inspection, or to procure copies of them prior to his application for a continuance, and, therefore, we would think that he did not exercise sufficient diligence. The whole matter, however, was largely within the discretion of the trial court, and we cannot say that such discretion was abused. Many of the books, records and papers of the bank, and possibly all, were present at the trial, and there is no pretense that any of them needed by the defendant were absent.

II. The next ground of alleged error has reference to a supposed error in the information, in charging in one and the same instrument, though in separate counts, several separate and distinct felonies, and in the court's requiring the defendant to be tried for all of such felonies in one and the same trial. Now there can certainly be no such substantial error in this as will require a reversal of the judgment of the court below, provided, of course, that only one offense is charged in each of the several counts of the information. Several separate and distinct felonies may be charged in separate counts of one and the same information, where all of the offenses charged are of the same general character, requiring the same mode of trial, the same kind of evidence, and the same kind of punishment. (Whar. Cr. Pl. & Pr., § 285, et seq., and cases there cited; 1 Bish. Cr. Proc., 3d ed., §§ 424, 450, 451; 4 Am. & Eng. Encyc. of Law, 754-756; The State v. Bancroft, 22 Kan. 170; The State v. Chandler, 31 id. 201; The State v. Goodwin, 33 id. 538; The State v. Fisher, 37 id. 404.) The defendant may be tried upon all the several counts of the information at one and the same time, and in one trial; but all this rests in the sound judicial discretion of the trial court. In some cases the trial court might, without committing material error, quash such an information; or it might require the state to elect upon which one or more of the several counts it would proceed to trial or rely for a verdict; but we cannot say that in this case the court abused its discretion or committed any material error.

III. The next alleged ground of error is that each count of the information charged two separate and distinct offenses. The first count of the information charges as follows: That the defendant as officer, cashier and secretary of the State Bank of Irving, a corporation, doing a general banking business at Irving, was entrusted by the corporation with the safe-keeping, custody, control and disbursement of the moneys belonging to the bank; and that he, as such officer, cashier and secretary, on the 8th day of November, 1889, certain moneys belonging to the bank in his hands, of the value of $ 1,500, "did then and there fraudulently and feloniously convert to his own use and embezzle, with intent to feloniously embezzle the same, and then and there did feloniously make way with and secrete, with intent the said money and property fraudulently and feloniously to embezzle and convert to his own use, without the assent of the said corporation, his employer." All the other counts are substantially in the same form. Now as a general rule, the charging of two or more distinct offenses in the same count of an information, which in criminal pleading is denominated "duplicity," is not to be tolerated, but we do not think that the present information is subject to any such objection. It is often the case that one felony of considerable magnitude may include within itself other offenses of less magnitude, and then all may be charged in one count; as, for instance, the offense of murder in the first degree, the greater offense, may be charged in one count of an information, although by so doing several smaller offenses are also charged in the same count of the information. And in all cases an offense may be set forth in a single count of an information, although such offense may include the smaller offense, an attempt to commit the principal offense. Sections 121 and 122 of the criminal code read...