State v. Jarrett

• Decision Date: 09 July 1891
• Parties: STATE v. JARRETT.
• Court: Kansas Supreme Court

27 P. 146

46 Kan. 754

STATE v. JARRETT.

Supreme Court of Kansas

July 9, 1891

Syllabus

Where the complaint and warrant charge a defendant with the larceny of United States currency and United States coins, and the defendant, upon arrest, waives a preliminary examination thereon before the examining magistrate, the county attorney in filing the information against the defendant, cannot add a new offense; that is, he cannot charge the defendant with the larceny of a pocket-book or a promissory note, neither of which are mentioned, referred to, or by any implication whatever charged, in the original complaint or warrant, when the preliminary examination was waived.

Appeal from district court, Barber county; G. W. McKAY, Judge.

R. A Cameron, for appellant. J. N. Ives, Atty. Gen., and Lyman W. De Geer, for the State.

OPINION

HORTON, C. J.

Starling Jarrett was arrested upon the complaint of Dawson Brown, charging him with stealing, taking, and carrying away from the house of W. M. Brown $36 in United States currency and coin. The warrant followed the complaint, and alleged that Jarrett did, on the 20th of December, 1890, in Barber county, Kan., unlawfully, feloniously, and at the house of W. M. Brown, steal, take, and carry away one $20 United States currency bill, current as money, of the value of $20; one $10 United States currency bill, current as money, of the value of $10; one $5 United States currency bill, current as money, of the value of $5; and one $1 gold piece, of the denomination of $1, current as money, of the value of $1,— all of the aggregate value of $36, and the property of Dawson Brown, of which property a more particular description is unknown. Jarrett waived a preliminary examination, and was held to answer at the next term of the district court, and in default of bond was committed to jail. The county attorney in due time filed his information against him, charging "that one Starling Jarrett, whose true name is to me unknown, did then and there unlawfully and feloniously steal, take, and carry away one $20 paper currency bill, current as money of the United States, of the value of $20; one $10 paper currency bill, current as money of the United States, of the value of $10; one $5 paper currency bill, current as money of the United States, of the value of $5; one $1 gold coin currency piece, current as money of the United States, of the value of $1; one leather pocket book, of the value of 50 cents; one promissory note, dated ___ day of ___, A.D. 1890, made payable to Dawson or bearer, for $25, and signed by ___ Rodgers, of the value of $25,— a more minute or particular description of said personal property cannot be given for want of knowledge of such minute or particular description,— all of the aggregate value of $62.50, and the property of Dawson Brown." Jarrett filed a plea in abatement, upon the ground, among others, that he had never had or waived a preliminary examination for the crime of stealing, taking, and carrying away the pocket-book and note mentioned in the information. The district court overruled the plea in abatement, although it found the allegations therein were true. After the jury had taken the case and retired to consider their verdict, they sent a request to the district judge to be allowed to take the note mentioned in the information and the plea in abatement to their room, which request the judge granted, over the objection of the defendant’s counsel, the defendant at this time being absent from the court-room in the county jail. The note was accordingly taken into the jury-room, and remained there during all their deliberations in the case. Verdict of guilty and sentence to one year in the penitentiary.

Section 69 of the Criminal Code provides that no information shall be filed against any person for any felony until such person shall have had a preliminary examination therefor, as provided by law, before a justice of the peace, or other examining magistrate or officer, unless such person shall waive his right to such examination. Fugitives from justice and persons charged with misdemeanors, not cognizable before a justice of the peace, are exempted from the provisions of this section. A preliminary examination is required for the purpose of giving to the defendant a reasonable notice of the nature and charge of the offense charged against him. State v. Bailey, 32 Kan. 83, 3 P. 769. "All that is necessary is that the defendant should be given a fair opportunity to know, by a proffered preliminary examination, the general character and outlines of the offense against him; and it is not necessary that all the details and technical averments...