State v. Hutzel

• Court: Kansas Supreme Court
• Writing for the Court: DAWSON, J.:
• Citation: State v. Hutzel, 108 Kan. 456, 195 P. 887 (Kan. 1921)
• Decision Date: 12 February 1921
• Docket Number: 23,198
• Parties: THE STATE OF KANSAS, Appellee, v. S. M. HUTZEL, Appellant

195 P. 887

108 Kan. 456

THE STATE OF KANSAS, Appellee, v. S. M. HUTZEL, Appellant

No. 23,198

Supreme Court of Kansas

February 12, 1921

Decided January, 1921.

Appeal from Trego district court; ISAAC T. PURCELL, judge.

Judgment reversed and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

1. CRIMINAL LAW--Destruction of Deed with Intent to Defraud--Sufficient Information. An information which lacks no material matter of precision and certainty to fully apprise a defendant of the crime charged against him and which is sufficiently clear to cause the court no doubt touching the correct judgment to be pronounced thereon upon a verdict of guilty is sufficient against a motion to quash or a motion in arrest of judgment.

2. SAME--Evidence--Issue Properly for Jury. The evidence examined, and held that notwithstanding that part of it which tended to exculpate the defendant the issue was properly one for the consideration of the jury.

3. SAME--Inadequate Instructions to Jury. Where the attorney and confidential adviser of the grantor of a deed receives such deed from his client to be delivered to the grantee after the death of the grantor, and the attorney, during the grantor's lifetime destroys the deed, the matter of the attorney's good faith, when he candidly admits that he destroyed it, is of controlling significance when such attorney is prosecuted on a charge of destroying it with intent to defraud the grantee, and the question whether the grantor retained control over the deed during his lifetime and whether he expressly or impliedly authorized the destruction of the deed should also be adequately covered by the court's instructions to the jury.

4. SAME--Instructions. The instructions requested were properly refused, but those given were inadequate and prejudicially erroneous.

David Ritchie, of Salina, and J. P. Shutts, of Hays City, for the appellant.

Richard J. Hopkins, attorney-general, and John R. Parsons, county attorney, for the appellee.

Dawson J. Porter, J., not sitting.

OPINION

DAWSON, J.:

The defendant, an aged attorney of Wa Keeney, was convicted under section 191 of the crimes act (Gen. Stat. 1915, § 3518) of the offense of destroying a deed to a half section of land which the grantor had delivered to him and which was to be surrendered by the defendant to the grantee after the death of the grantor. It was alleged that such destruction was feloniously perpetrated with intent to defraud the grantee.

The errors assigned in this appeal are mainly these: the insufficiency of the information to charge an offense, the insufficiency of the evidence to sustain the charge, and errors in the instructions given and refused.

Touching these in order, the information lacked no material matter of precision or certainty to fully apprise the defendant of the crime charged against him, nor would it cause the court to doubt or hesitate as to the correct judgment to be pronounced thereon upon a verdict of guilty. It was therefore sufficient. (The State v. McCord, 8 Kan. 232; The State v. Harp, 31 Kan. 496, 500, 3 P. 432.)

A more debatable question is involved in the sufficiency of the evidence. With due consideration to that part of it which tended, plausibly at least, to exculpate the defendant, we are constrained to hold that, under proper instructions, the case was one for the consideration of the jury.

Certain rather imperative and scarcely correct instructions were asked by defendant and refused by the court. The chief question in this lawsuit--most of the other facts including the destruction of the deed having been candidly admitted by defendant--was whether the grantor of the deed intended to make an unqualified deposit of the deed and to renounce all future control over it, without power in himself to revoke it or to direct any other disposition of it than the one named when he gave it to defendant--to deliver it to the grantee after his death. The deed in question was made by Dr. C. S. Wall to Mrs. Wall, his wife. She had married Wall in his declining years and had furnished him with her own funds to relieve his most pressing indebtedness. After Dr. Wall had deposited the deed with defendant, he frequently solicited the latter to raise some money for him. Dr. Wall was in sore financial straits, and in ill health far from home. The state produced in evidence a mass of letters written by defendant to Dr. Wall, in which among other matters a proposed loan by defendant was discussed, and for which Wall proposed to give another deed to the property. One of these letters reads:

"S. M. HUTZEL,

"Lawyer and Real-estate Dealer, Wa Keeney, Kansas.

"FEBRUARY 13, 1920.

"Dr C. S. Wall, Jacksonville, Florida:

"DEAR DOCTOR--Your letter of 10th instant in relation to farm received and I hasten to answer same. First, I had counted on letting you have for your own personal use $ 300 or $ 400, but not all at the same time as my money will be coming in slowly in payments, but I have made arrangements to let you have $ 100 at once on receipt of deed if those people have not 'balled' things up, so we had better get busy. Execute the deed and I'll examine the records, and file same if they haven't filed their agreement; I hardly think they will for they will be waiting for you to sign.

"When you send me the deed write me separate from your letter telling me what to do fully in such respects as you wish between us personally, then on a separate piece of paper instruct me to burn or destroy the deed made by you to Mrs. Wall now in my possession, and I'll carry out your instructions to the letter.

"I don't see where you would get any money on the deal with two mortgages, and he [a prospective buyer from Mrs. Wall] assume the existing mortgage, and I presume that Mrs. Wall would want the mortgages made to her and she would hold them,...