State v. Kusel

• Decision Date: 27 February 1923
• Docket Number: 1111
• Parties: STATE v. KUSEL
• Court: Wyoming Supreme Court

213 P. 367

29 Wyo. 287

STATE v. KUSEL

No. 1111

Supreme Court of Wyoming

February 27, 1923

APPEAL from the District Court of Laramie County; HON.W. A. RINER Judge.

A. J Kusel was convicted on a charge of feloniously entering a building with intent to commit a felony and attempting to commit a robbery, and appeals. The material facts are stated in the opinion.

Judgment affirmed.

Kinkead Ellery and Henderson and J. E. Jacobson, for appellant.

The original information filed in Platte County was defective in substance in not charging sufficient facts to constitute a crime; the court erred in permitting the county and prosecuting attorney of Platte County to file an amended information in Laramie County after transfer of the cause to said county on change of venue; the original information did not meet the requirements of any criminal statute of the state nor was it sufficient to charge a crime under the common law, since no overt act is alleged and it is elementary that this is essential; (16 C. J. 112-113; Hogan v. State, 39 So. 464; Ligon v. State (Ga.) 103 S.E. 189; State v. Donovan, 90 A 220; State v. Burris, 97 A. 427; State v. Doran, (Me.) 59 A. 440; People v. Kane, 55 N.E. 946; Smith v. State, 94 N.W. 106.) the filing of the amended information was either a nullity or it superseded the original information; (People v. Wilson, 150 Ill.App. 595; Brown v. State, 115 P. 615; Harris v. State, (Okla.) 132 P. 1121; People v. Fensky, (Ill.) 130 N.E. 689.) this resulted in defendant being charged in Laramie County with the commission of an offense in Platte County, or under the theory that the amendment of an information in substance is an abandonment of the original information, the Laramie County court was without jurisdiction to allow the filing of the amended information; a defendant is entitled to trial in the county where the offense is alleged to have been committed; (Const. Art. 1, Section 10; Wharton, 10 Ed. Vol. 1, Section 181.) the county attorney of Platte County had no power to act officially outside his own county; the only county attorney that could file the amended information was the county attorney of Laramie County; (C. S. 1451.) an amended information could be filed only in Platte County (22 Cyc. 439; 14 R. C. L. 193; State v. Bartlett, 59 L. R. A. 756.) the verdict does not respond to the charge laid in the information in not finding that the entry was felonious; it was not a general verdict of guilty "as charged in the information" but one finding specially as to certain elements of the crime charged and omitting to find as to other material elements thereof, it is insufficient to support a conviction; (Kimball v. Territory, (Ariz.) 115 P. 70; Renfroe v. State, (Fla.) 80 So. 183; People v. Lee, 86 N.E. 573; State v. Griffin, 212 S.W. 876; State v. Stephanus, 99 P. 428 (Ore.); Stedman v. State, 86 So. 428; State v. Ward, (La.) 86 So. 552; Mai v. People, (Ill.) 79 N.E. 633; Donovan v. People, (Ill.) 74 N.E. 772; Commonwealth v. Call, (Mass.) 32 Am. Dec. 284; People v. Small, (Cal.) 82 P. 87; Rings v. State, 42 Tex. 282; Huffman v. State, (Ala.) 8 So. 28; State v. Oakley, (Mo.) 95 S.W. 345; State v. Parken, 67 S.E. 35; State v. Snyder, 73 P. 355.) the elements omitted in the jury's finding cannot be incorporated by reference to the information; (Bouvier's 3rd Ed. Vol. 3, 3013; Kimball v. Territory, supra; People v. Lee, supra; People v. Klein, 185 Ill.App. 206;) the judgment is not supported by the verdict in that it purports to be based upon a finding of felonious entry; (Wood v. State, (Okla.) 112 P. 11-23; Ex Parte Booth, 154 P. 933; Ex Parte Harris, 128 P. 156; In Re Burns, 113 F. 991; State v. Stephanus, 99 P. 438.) the jury made special findings in which no felonious entry was found; the defendant has been placed in jeopardy; (People v. Small, 82 P. 87; In Re Burns, supra; Ex Parte Harris, supra; State v. Stephanus, supra.) the cause should be reversed and defendant discharged.

W. L. Walls, Attorney General, for respondent.

Exception to the amended information should have been taken by motion to quash; defendant plead not guilty; the theory of defendant is that the original information being insufficient to charge an offense was not amendable and that a new information could be filed against defendant in Laramie County after change of venue thereto; the argument is fallacious; this court has decided that a court granting a change of venue loses jurisdiction not only over the information transferred but over any other founded on the same transaction at the same or subsequent time; (Keefe v. District Court, 16 Wyo. 381.) a defendant who procures a change of venue can not object to the jurisdiction of the new court; (State v. McLendon, (Ala.) 1 Stew. 195; People v. Zane, 105 Ill. 662; Taylor v. Comm. 172 Ky. 136.) and waives the constitutional right to be tried in the county where the offense is alleged to have been committed. (Kent v. State, 64 Ark. 247; Weyrich v. People, 89 Ill. 90; Perteet v. People, 70 Ill. 171; State v. Knapp, 40 Kan. 148; 19 P. 728; State v. Potter, 16 Kan. 80; Parker v. Com. 12 Bush, 191; Kennison v. State, 83 Neb. 391; 119 N.W. 768; State v. Crinklow, 59 N.W. 370; State v. Albee, 61 N.H. 423, 60 Am. Rep. 325; Oborn v. State, 143 Wis. 249, 126 N.W. 737.) and this is true although the venue is changed to the wrong county; (State v. Gamble, 119 Mo. 427, 24 S.W. 884; Kennison v. State, 119 N.W. 768.) an objection that an information has not been found, endorsed, or presented as prescribed by law must be made by motion to quash; (C. S. 7483.) it is not a ground for demurrer; (7485 C. S.) it may be waived by failing to object in the proper way; (State v. Harris, 12 Nev. 414.) the alleged defect was apparent upon the face of the record and was waived by failure to move to quash; (People v. Fensky, 130 N.E. 689;) it will be presumed that the county attorney of Platte County was authorized by the county attorney of Laramie County or deputized by him, to file the amended information; (People v. Etting, 99 Cal. 577; State v. Hayes, 16 Mo.App. 560; State v. Moxley, 102 Mo. 374; Shafer v. State, 18 Ind. 444; Stout v. State, 93 Ind. 151; Hamilton v. State, 103 Ind. 99; Wrockledge v. State.) 1 Ia. 167; Territory v. Harding, 6 Mont. 323; Territory v. Layne, 7 Mont. 227.) specifications of error as to the insufficiency of evidence can not be reviewed unless all of the evidence be presented by bill; (7538 C. S.; Koppala v. State, 15 Wyo. 398; Richardson v. State, 15 Wyo. 486.) the verdict was a finding of guilt as charged in the information and was, therefore, sufficient; (Cook v. Territory, 3 Wyo. 109; Bryant v. State, 5 Wyo. 385; People v. Gilbert, 57 Cal. 96.) a due consideration of the record in this case shows that the objections urged are technical rather than substantial, and no prejudicial error has intervened, the judgment should be affirmed; (Pointer v. U.S. 151 U.S. 419.)

Kinkead, Ellery and Henderson and J. E. Jacobson, in reply.

The case of Keefe v. District Court, 16 Wyo. 381 cited by respondent is clearly distinguishable since it holds that an amended information must be filed in the county where the offense was alleged to have been committed. The county and prosecuting attorney of Platte County had no official authority in the case after the change of venue; (Keefe v Court, supra; Section 1451 and 7497 C. S.) the amended information was insufficient to confer jurisdiction and want of jurisdiction is never waived and cannot be conferred by stipulation; the statutes prescribe the requisites of an information (7426 C. S.) the Laramie County court acquired no jurisdiction by the filing of the amended information; (22 Cyc. 173; People v. Pilewski, (Ill.) 128 N.E. 801; Evans v. Willis, 97 P. 1047; McGarrah v. State, 133 P. 260; State v. Beddo, (Utah) 63 P. 96; State v. Morrey, 64 P. 764; Jackson v. State, 4 Kan. 127; United States v. Co., 230 F. 290; State v. Brown, 65 P. 213; 19 L. R. A. (N. S.) 1050; In Re Vogland, (Neb.) 66 N.W. 1028; Wolcott v. Territory, 1 Wyo. 67; Patrick v. State, 96 P. 527; (Wyo.); Shilter v. U.S. 257 F. 725; United States v. Cohen, 273 F. 620; Moore v. State, 119 S.W. 858, (Texas); Trammel v. State, (Ala.) 44 So. 201; the county attorney of Laramie County has no authority to appoint an assistant or deputy with power to file and sign an information himself. The theory of the Platte County attorney acting as a deputy fails. (McGarrah v. State, supra; U. S. v. Cohen, 273 F. 620; Engle v. Chipman, 16 N.W. 886.) the assignment of error as to the insufficiency of the verdict is distinct from a general assignment that the verdict is contrary to law which requires a bill of exceptions for review, respondent argues that this assignment can not be reviewed without a bill of exceptions; the verdict in a criminal case is a part of the record proper; (6407 C. S.) objections to its form may be reviewed without a bill; (Grover Co. v. Ditch Co., 21 Wyo. 204.) the record proper is, of course, presented by record on appeal; it could be reviewed without a bill of exceptions; (Kappala v. State, 15 Wyo. 398; 17 C. J. 83; State v. Modlin, 95 S.W. 345; State v. Grossman, 113 S.W. 1074.) the assignment that the verdict is contrary to law means that it is contrary to the instructions of the court; (Wds. and Phra., Vol. 1, 1003; Valerius v. Richard, 59 N.W. 534; Drexel v. Daniels, 68 N.W. 399; People v. McPherson, 91 P. 1098.) the verdict is part of the judgment roll; (State v. Chirafis, 121 P. 364.) the making of an application for a change of venue did not constitute a waiver of the question of jurisdiction of the Laramie County court; the Wyoming cases cited by respondent as to the sufficiency of the form of the verdict relate to general verdicts and are not applicable to the form of...