State v. Jessup

• Court: Kansas Supreme Court
• Writing for the Court: HORTON, C. J.:
• Citation: State v. Jessup, 42 Kan. 422, 22 P. 627 (Kan. 1889)
• Decision Date: 12 January 1889
• Parties: THE STATE OF KANSAS v. D. M. JESSUP

22 P. 627

42 Kan. 422

THE STATE OF KANSAS v. D. M. JESSUP

Supreme Court of Kansas

January 12, 1889

Decided July, 1889

Appeal from Edwards District Court.

ON January 12, 1889, there was filed in the district court of Edwards county the following information, omitting caption signature, and verification:

"I W. H. Robb, the undersigned, county attorney of said county in the name, by the authority and on behalf of the state of Kansas, come now here and give the court to understand and be informed, that on the 11th day of April, 1888, in said county of Edwards and state of Kansas, one D. M. Jessup did then and there unlawfully, feloniously burn a barn, the property of Geo. L. Painter, then and there situate, with intent to defraud the insurers of said barn, to wit, the German Insurance Company of Freeport, Ill., and the Fireman's Fund Insurance Company of San Francisco, California; contrary to the form of the statute in such case made and provided and against the peace and dignity of the state of Kansas."

On January 25, 1889, trial was had. The defendant, upon being arraigned, pleaded not guilty. No motion was filed or presented to quash the information.

When the state called its first witness, the defendant objected to the introduction of any evidence, upon the ground that the information did not state facts sufficient to constitute any public offense. This objection was overruled by the court, the defendant excepting. After the hearing of the evidence, the charge of the court, and the argument of counsel, the jury returned a verdict of guilty against the defendant. Thereupon he filed his motion for a new trial, containing the usual statutory grounds, and also alleging that the information on which he was tried did not state facts sufficient to constitute a public offense. The motion was overruled, the defendant excepting. On February 4, 1889, the defendant was sentenced to be confined at hard labor in the penitentiary of the state for a period of five years. From the judgment and sentence he appeals to this court.

Judgment affirmed.

C. N. Sterry, for appellant.

L. B. Kellogg, attorney general, and W. H. Robb, county attorney, for The State.

HORTON C. J. All the Justices concurring.

OPINION

HORTON, C. J.:

The information upon which the defendant was convicted was based upon § 57 of the crimes act:

"Every person who shall burn any building, boat or vessel, or any goods, wares or merchandise, or other chattels, which shall at the time be insured against loss or damage by fire, with intent to defraud or prejudice the insurer, whether the same be the property of such person or any other, shall be, upon conviction, adjudged guilty of arson in the third degree."

No motion to quash was filed or presented, and the defendant pleaded not guilty, and afterward, upon the trial, objected to the introduction of any evidence against him, upon the ground that the information did not state facts sufficient to constitute a public offense. This objection was overruled. Of this, complaint is made. In overruling the motion to exclude the testimony, there was no error. It was decided many years ago in this court, in Rice v. The State, 3 Kan. 141, that --

"The proper time to raise the question of the sufficiency of the indictment before verdict, is by motion to quash; after verdict, by motion in arrest of judgment: and it seems it is not correct practice, after the jury is sworn and trial commenced by placing a witness on the stand, to move to exclude all testimony under the indictment, on the ground that it does not charge a public offense."

No motion in arrest of judgment was filed, and hence we might end the case at this point with an affirmance of the judgment. But treating the language of the motion for a new trial as a motion in arrest, we will examine further. The contention is, that the following words of said § 57 "which shall at the time be insured against loss or damage by fire," are omitted from the information, and therefore that it is fatally...