State v. Hoffman

• Decision Date: 07 April 1951
• Docket Number: No. 38273,38273
• Citation: State v. Hoffman, 171 Kan. 116, 229 P.2d 768 (Kan. 1951)
• Parties: STATE v. HOFFMAN.
• Court: Kansas Supreme Court

Page 768

229 P.2d 768

171 Kan. 116

STATE v.HOFFMAN.

No. 38273.

Supreme Court of Kansas.

April 7, 1951.

Syllabus by the Court

1.Where an agent converts funds of his principal to his own use, flees from the state and makes service of a demand on him by the principal within this state to deliver the funds impossible, the venue of a criminal prosecution under the second portion of G.S.1949, 21-545 may be laid in the county of this state where it was the agent's duty to account.Service of a demand on the agent in California to deliver the balance of funds alleged to be due does not change the venue of the action.

2.An amended information set forth in the opinion examined, and held, it did not allege facts disclosing the offense was committed in Reno county and motion to quash was properly sustained.

John R. Alden, Asst. County Atty., of Hutchinson, argued the cause, and Harold R. Fatzer, Atty. Gen., John Fontron, County Atty., and Fred C. Preble, of Hutchinson, were with him on the brief, for the appellant.

No appearance was made for the appellee.

WEDELL, Justice.

This was a prosecution under what is commonly referred to as the demand portion of our embezzlement statute, G.S.1949, 21-545, which reads: '* * * if any agent shall, with intent to defraud, neglect or refuse to deliver to his employer or employers, on demand, any money, bank bills, treasury notes, promissory notes, evidences of debt or other property which may or shall have come into his possession by virtue of such employment, office or trust, after deducting his reasonable or lawful fees, charges or commissions for his services, unless the same shall have been lost by means beyond his control before he had opportunity to make delivery thereof to his employer or employers, or the employer or employers have permitted him to use the same, he shall upon conviction thereof be punished in the manner provided in this section for unlawfully converting such money or other property to his own use.'

Four counts of the amended information were framed in a similar manner.We need, therefore, consider only the first count.It reads: 'I, the undersigned, County Attorney of said County, in the name and by the authority and on behalf of the State of Kansas, give information that on or about the 26th day of August, A.D.1949, in said County of Reno and State of Kansas, one Harry H. Hoffman, then and there being, did then and there unlawfully, feloniously, and wilfully while being the agent of the Red Arrow Trailer Manufacturing Company, a Missouri corporation, with the intent of him, the said Harry H. Hoffman, to defraud said Red Arrow Trailer Manufacturing Company did then and there on demand of said Red Arrow Trailer Manufacturing Company made at Long Beach, California, on or about the 26th day of August, 1949, after the said Harry H. Hoffman had fled the State of Kansas, neglect and refuse to deliver to the said Red Arrow Trailer Manufacturing Company, the sum of $1840.00, which said sum had come into the possession of the said Harry H. Hoffman on or about the 6th day of June, 1949 by virtue of his employment as an agent of the said Red Arrow Trailer Manufacturing Company and which said sum was the proceeds from the sale of one 25 foot Red Arrow Trailer, serial No. 495-42-22, and which said sum so received by the said Harry H. Hoffman as aforesaid was due to the said Red Arrow Trailer Manufacturing Company after deducting all reasonable and lawful fees, charges and commissions.Contrary to the form of Statute 21-545 in such case made and provided and against the peace and dignity of the State of Kansas.'

Defendant's motion to quash the amended information which the district court sustained was: '* * * that said information shows on its face that defendant has committed no offense against the laws of the State of Kansas, or within the State of Kansas, and that the Court has no jurisdiction to try defendant under said information.'

The exact theory upon which the court sustained the motion is not reflected by the record.Appellee has filed no brief.Appellant contends the question is whether it is possible to commit a public offense in Kansas under the demand portion of this statute where an agent converts funds of his principal to his own use in this state and a demand for the delivery thereof is made on the agent in another state.We do not think the real question presented is whether it is possible to state a public offense under those circumstances but rather whether this particular information actually charges such an offense.

The theory upon which the district court sustained the motion to quash not being disclosed by the record we shall briefly consider the state's contention as stated.If the question presented to the district court was that stated by appellantwe unhesitatingly say an accused cannot flee from this state, thereby preventing service of demand...