State v. Hubbard

• Decision Date: 05 May 1928
• Docket Number: 28,081
• Citation: 266 P. 939,126 Kan. 129
• Parties: THE STATE OF KANSAS, Appellee, v. LEONA HUBBARD, Appellant
• Court: Kansas Supreme Court

266 P. 939

126 Kan. 129

THE STATE OF KANSAS, Appellee, v. LEONA HUBBARD, Appellant

No. 28,081

Supreme Court of Kansas

May 5, 1928

Decided January, 1928

Appeal from Shawnee district court, division No. 1; JAMES A McCLURE, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. LARCENY--Taking of Pledge by Owner. Larceny may be committed by the wrongful taking of property by its general owner from the possession of another to whom it has been pledged.

2. SAME--Sufficiency of Information. The information charging the offense is held to be sufficient.

3. SAME--Instructions. Instructions given to the jury relating to the offense charged are held to be without error.

4. WITNESSES--Redirect Examination--Incompetent Matter Brought Out on Cross-examination. A defendant who by inquiry brings out a part of a statement of a witness is not in a position to complain of the action of the opposing party in calling for and bringing out the complete statement.

5. CRIMINAL LAW--New Trial--Absence of Witness. The denial of a motion for a new trial on the ground of accident and surprise because of the absence of a witness is held to be without error.

Dennis Madden, C. B. Griffith and J. B. Cross, all of Topeka, for the appellant.

William A. Smith, attorney-general, and Paul H. Heinz, county attorney, for the appellee.

OPINION

JOHNSTON, C. J.:

Leona Hubbard was convicted of the larceny of an automobile of the value of $ 1,000 and appeals.

She contends that the denial of her motion to quash the information was error. The information alleged:

"That Leona Hubbard, at the county of Shawnee in the state of Kansas and within the jurisdiction of this court, on the day of February, A. D. 1927, did then and there unlawfully, feloniously and willfully take, steal and carry away, and convert to her own use, one certain Nash sedan automobile, serial No. 70754, said property being held by Orville Sheffer as a pledge to him and under his control, said property being of the reasonable value of $ 1,000, contrary to the statute in such cases made and provided and against the peace and dignity of the state of Kansas."

Defendant contends that the information was defective in that it did not fully define a pledge and state more fully the nature of it. The meaning of the term is not open to dispute. It is a delivery of property as security for a debt or other engagement, by which the pledgee acquires a special interest or ownership in the thing pledged, the general ownership remaining in the pledgor. The pledgee obtains more than a simple lien, as he has possession and is in a sense a bailee who is entitled to hold possession until the obligation which it was given to secure has been discharged. We think the information was sufficient. The defendant could not have been misled as to the nature of the charge, and besides she had learned the claims of the state in respect to the charge at the preliminary examination.

The testimony tended to show that the defendant pledged the car to O. A. Sheffer for money advanced and legal services rendered. The defendant had previously been arrested for another offense. She employed Sheffer, who advanced $ 120 in connection with that litigation, and for this sum and for legal services rendered in her behalf the pledge was made and the car delivered into Sheffer's possession. It was shown that the defendant, with some assistance, took the car from Sheffer's possession without his knowledge or consent. It is contended that the court misconceived the nature of the charge and did not give proper instructions to the jury. Complaint is made of instruction number three which, after stating that the offense might be committed by feloniously taking and carrying away property belonging to another, proceeded as follows:

"By the term 'belonging to another' as used in the foregoing instruction, it is not intended to mean that the property must be owned by or the title be in such other person. It would be sufficient if such other person had obtained possession from the owner of such property as a pledge or as security for indebtedness with a right to hold the same until such indebtedness was satisfied. In other words, one who holds property by the consent and agreement of the owner as a pledge, or as security for the payment of indebtedness, has such title in such property while so possessed that it could be said to belong to him within the meaning of the statute, and the unlawful stealing or taking of such property would constitute a larceny even if such stealing or taking was committed by the owner thereof."

The complaint is that it did not properly present the subject of intent and that this should have been done in view of the testimony offered by her of an effort to settle with Sheffer before the automobile was taken, which it is insisted tended to show that there was no ...