State v. Hupp

• Decision Date: 08 November 1941
• Docket Number: 35326.
• Citation: 154 Kan. 410,118 P.2d 579
• Parties: STATE v. HUPP.
• Court: Kansas Supreme Court

118 P.2d 579

154 Kan. 410

STATE v. HUPP.

No. 35326.

Supreme Court of Kansas

November 8, 1941

Rehearing Denied Dec. 11, 1941.

Syllabus by the Court.

In criminal prosecution, defendant cannot wait until after he has been arraigned and jury has been empaneled and then raise for first time by objection to introduction of evidence the question of sufficiency of information to state a criminal offense, and ruling on such objection is not tantamount to ruling on a demurrer, and does not raise the question of "res judicata" as to new information filed on the same facts.

In prosecution for sale of meat from diseased cow in violation of statute, state need not charge and prove that sale was to a particular person. Gen.St.1935, 65-602.

Any of the essential elements of crime can be proved by circumstantial evidence.

In prosecution for selling meat from diseased cow circumstantial evidence on question whether meat was sold or whether cow was diseased, was for jury. Gen.St.1935, 65-602.

1. In a prosecution for violation of a criminal statute the defendant may not wait until after he has been arraigned and the jury has been impaneled and then raise for the first time by an objection to the introduction of evidence the question of the sufficiency of the information to state a criminal offense. The ruling on such an objection is not tantamount to a ruling on a demurrer and does not raise the question of res judicata as to a new information filed on the same facts.

2. In a criminal prosecution for the sale of meat from a diseased cow in violation of G.S.1935, 65-602, it is not necessary for the state to charge and prove that the sale was to a particular person.

3. In a criminal prosecution any of the essential elements of the crime may be proved by circumstantial evidence. In the case under consideration the evidence is examined and it is held that there was sufficient circumstantial evidence to warrant the question of guilt or innocence of the accused being submitted to the jury.

Appeal from District Court, Neosho County; Leroy Bradfield, Judge.

Ben Hupp was convicted for selling adulterated meat and he appeals.

T. R Evans and Robert N. Allen, both of Chanute, for appellant.

Jay S Parker, Atty. Gen., A. B. Mitchell, Asst. Atty. Gen., and John C. McCall, Co. Atty., of Chanute, for appellee.

SMITH Justice.

This is an action in which the defendant was convicted of selling adulterated meat in violation of G.S.1935, 65-602. He appeals.

The information was filed direct in district court on November 27, 1940, and was in seven counts. These counts were in identical language except as to the dates on which the sales were alleged to have taken place. Defendant was convicted on the third count. After the formal parts, the third count alleged that defendant then and there did unlawfully and willfully sell adulterated food for human consumption consisting in whole or in part of the product of a diseased animal, to wit, a cow, during the last of January and the first part of February, 1940.

To this information the defendant filed an answer and plea of former jeopardy. In this document he denied the allegations of the information, and further alleged that he should not be held to answer the charges because on April 8, 1940, an information containing eight counts and covering the same transaction had been filed against him, and that all those matters had been adjudicated in defendant's favor. A copy of this information was attached to the answer, marked Exhibit A. The counts of that information were identical in language with the information upon which the defendant was convicted except that it was charged that he "did then and there unlawfully and willfully keep for sale or offer for sale adulterated food ***." The answer then alleged certain proceedings were had after the defendant waived arraignment and entered a plea of not guilty and referred to Exhibit B, which was attached to the answer. Exhibit B was a copy of a journal entry in the first case dated November 18 1940, in which the court, after the jury had been impaneled and the county attorney had made his opening statement to the jury, sustained the objection of defendant to the introduction of any evidence in the case on the ground that the information filed in the case did not state facts sufficient to constitute a public offense under the laws of the state of Kansas.

The answer then alleged that the matters charged in the information in the present case were res judicata and that to cause the defendant to stand trial upon the information would constitute placing him in jeopardy twice for the same offense.

The state demurred to this answer and plea of former jeopardy and this demurrer was sustained. Evidence was introduced, which will be noticed, in due time. The jury was instructed and a verdict returned finding the defendant guilty as to the third count. A motion for a new trial was overruled, hence this appeal.

The defendant first argues that the court erred in sustaining the state's demurrer to his answer and plea of former jeopardy. He concedes that under the rule announced by this court in the case of State v. Reynolds, 140 Kan. 269, 36 P.2d 323, the defendant was not twice put in jeopardy. He argues, however, the doctrine of res judicata is applicable to criminal cases as well as civil, and that the decision of the trial court sustaining the objection to the introduction of evidence as to the first information was res judicata of the matters charged in the second information, upon which the defendant was convicted and that the defendant should have been discharged. This takes us first to an examination of the statute with a violation of which the defendant was charged.

G.S.1935, 65-602, provides, in part, that "it shall be unlawful for any person to sell, keep for sale or offer for sale *** any article of food *** which is adulterated *** within the meaning of this act." G.S.1935, 65-607, provides in part: "That for the purpose of this act an article shall be deemed to be adulterated *** In case of food *** 6th *** if it is the product of a diseased animal or one that had died otherwise than by slaughter."

It will be seen at once that in the first information the county attorney charged the defendant with keeping for sale or offering for sale the product of a diseased animal. For some reason which does not clearly appear the trial court sustained an objection of counsel for the defendant to the introduction of evidence to prove the defendant guilty of a violation of that statute on the ground that the information did not state facts sufficient to constitute a public offense against the laws of the state of Kansas, and discharged the defendant. The information under which the defendant was convicted charged him with selling parts of the same cows to which reference was made in the other information. Was the decision of the trial court holding that the first information did not state a public offense res judicata of the matter charged in the second information? This court considered the question first in State v. Colgate, 31 Kan. 511, 3 P. 346, 47 Am.Rep. 507.

Defendant argues that the sustaining of his objection to the introduction of evidence in the former case was equivalent to the sustaining of a demurrer to the information. It does not appear in this record that defendant made any objection to the information or attacked it in any way until after the jury had been impaneled and the first witness had been called. It has been held by this court on several occasions that an objection to the introduction of evidence at that point in the trial court will not raise a question as to the insufficiency of an information in a criminal case. Such question should be raised by motion to quash the information or by demurrer filed against it before the defendant pleads thereto. When this procedure is not followed defendant should wait until after the verdict and move to arrest the judgment if he should be found guilty. See Fort Scott v. Dunkerton, 78 Kan. 189, 96 P. 50; State v. Pryor, 53 Kan. 657, 37 P. 169; State v. Falk, 46 Kan. 498, 499, 26 P. 1023; State v. Ashe, 44 Kan. 84, 24 P. 72; State v. Jessup, 42 Kan. 422, 22 P. 627; Rice v. State, 3 Kan. 141, 167; and cases from other jurisdictions noted in Kelley's Criminal Law and Procedure, 4th Ed., §§ 217, 218.

Since defendant's objection could not raise the question as to the sufficiency of the information under proper rules of procedure we will not say that it was equivalent to a demurrer. The result of this is that there was no ruling in the former case which decided the issues of that case in such a manner as to make them res judicata as to this case and thus bind the state to forego future prosecution of the defendant.

We gather from the record that one of the reasons for the sustaining of defendant's objection to the former information was that the word "or" should have read "and." It appears that the county attorney offered to amend the information in that particular as soon as the question was raised. This case is one in which we deem it proper to invoke the rule that an information cannot be attacked for insufficiency by an objection to the introduction of evidence and since the defendant is now and has been throughout this litigation invoking a technical consideration of the pleadings he should observe all proper rules of pleading.

Appellant next argues that the court erred in overruling defendant's objection to the introduction of evidence. The brief of the appellant is not clear in this respect but we gather from the briefs that the basis for the argument is that the information was insufficient in that it did not name the persons to whom the sales were made or state that the county...