State v. Miner

• Decision Date: 06 February 1926
• Docket Number: 25,963
• Citation: 243 P. 318,120 Kan. 187
• Parties: THE STATE OF KANSAS, Appellee, v. CARL H. MINER, Appellant
• Court: Kansas Supreme Court

243 P. 318

120 Kan. 187

THE STATE OF KANSAS, Appellee, v. CARL H. MINER, Appellant

No. 25,963

Supreme Court of Kansas

February 6, 1926

Decided January, 1926.

Appeal from Brown district court; C. W. RYAN, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. CRIMINAL LAW--Preliminary Transcript--Offenses Not Shown--Amendment. Where a defendant is arrested on a charge of statutory rape, and the evidence adduced at the preliminary examination tends to show that he not only committed the offense charged, but also two other similar offenses against the same prosecutrix, the defendant may be informed on and prosecuted on all three such offenses notwithstanding the transcript of the justice merely recited a finding that the crime of statutory rape had been committed and that there was reasonable cause to believe the defendant guilty of such offense; and it is held that no prejudicial irregularity transpired in the trial court in calling the examining magistrate as a witness to testify that some testimony had been presented at the preliminary examination tending to show that defendant had committed a number of such offenses on the same female, and that he recalled some evidence tending to show three such offenses; nor was it error to permit the justice to amend his transcript to recite a finding that such three separate and distinct offenses of statutory rape had been committed and that the defendant was probably guilty thereof.

2. SAME--Successive Offenses--Sentence to Run Consecutively. Following a prosecution and conviction for three such independent offenses, under the circumstances set forth in syllabus 1, a judgment imposing three separate sentences, to run consecutively, was not erroneous, and no prejudicial error was committed in overruling defendant's motion to quash the information nor in overruling his plea in abatement.

T. A. Moxcey, of Atchison, and S. F. Newlon, of Hiawatha, for the appellant.

Charles B. Griffith, attorney-general, C. A. Burnett, assistant attorney-general, and Caleb F. Bowron, county attorney, for the appellee; W. F. Means, of Hiawatha, of counsel.

Dawson, J. Dawson. J., Burch, Harvey, JJ., dissenting in part.

OPINION

DAWSON, J.:

The defendant was convicted on three counts of the felony of statutory rape, and three separate sentences therefor were imposed on him, which are to run consecutively.

The errors assigned in defendant's behalf center about the questioned sufficiency of his preliminary examination to justify his being subjected to prosecution on more than one count.

The facts were these: Defendant was arrested on a charge of having committed the statutory offense on the day of , 1923. At the preliminary hearing, evidence was introduced tending to show that defendant had committed this crime in July, 1923, culminating in the birth of a child in April, 1924. There was also some testimony of a similar crime against the same female in 1922, and again in October, 1923. The justice bound him over to the district court, the transcript reading:

"Having heard the evidence and being fully advised in the premises, the court finds that the crime of statutory rape has been committed on Octia Coppeck, and that there is reasonable cause to believe that the defendant, Carl H. Miner, is guilty of such offense. It is therefore considered and ordered that the said Carl H. Miner be bound over to the district court of Brown county, Kansas, for trial."

An information in three counts was filed against defendant, pursuant to the facts developed at the preliminary examination. Defendant filed a plea in abatement based on the alleged want of a preliminary examination "as to the matters charged." The plea was supported by affidavit, and the complaint and warrant charging one offense and the transcript of the justice were offered in evidence. To resist the plea, the state called the justice as a witness, and he testified that the evidence tended to show that defendant had committed the offense on the girl a number of times:

"Q. What was the testimony as to how numerous the offenses had been? A. It was testified to that there were quite a number of times, but the exact number I have no recollection of. The one that showed the probable cause, and the one I bound the defendant over on, was practically the only one I paid any attention to.

"Q. When was that? A. July or August of last year (1923) as I remember; I made no record of it. I just listened to the testimony.

"Q. Were there other offenses sworn to in the testimony? Can you remember the dates?

"Objected to as incompetent, irrelevant and immaterial, and an attempt to impeach the transcript and court record.

"THE COURT: Overruled.

"A. There was. Plaintiff testified to the occurrence of one in October. The word October was used, but with the same idea in mind I didn't remember whether it was October of '23 or any other October. The spring of '22 was also referred to.

"Q. There were several offenses testified to--no matter-- A. As I recall, the spring of '22 was mentioned, but I wouldn't swear positively to that being a fact.

"Q. Then you do recall of the spring of '22 and July or August, '23, and some October being spoken of? A. Yes, sir. . . .

"Cross-examination: . . .

"Q. You said, Mr. Hildebrand, that the one upon which you found there was probable cause, and on which you bound the defendant over was the one in July or August, '23. Is that right? A. I just have in mind July or August, than any other part of plaintiff's testimony. I didn't bind the defendant over on any particular one. I bound him over because there was probably cause to show that this was done, as the transcript said, but not on any specific one.

"Q. What I am getting at, did you bind him over on three offenses or one offense, as shown by all the testimony? A. I hardly know how to answer that question. There was only one offense in the complaint. . . .

"BY COURT: Was there any evidence offered on the part of the prosecuting witness in particular as to three separate and distinct times? A. As I believed the testimony and was told, the prosecuting witness testified it occurred frequently. . . .

"THE COURT: And when you bound him over was you binding him over as to any one particular charge or just binding him over generally on the view that there was probable cause that he had been guilty of statutory rape, without selecting any particular one? A. The probable cause was all I bound him over on, because there was no specific offense specified, and I thought the defendant guilty.

"Cross-examination resumed: . . .

"Q. Was your attention at that time drawn to the fact that an examining magistrate had authority to bind a man over not only for the offense with which he was charged, but any other offense that the evidence might show he was guilty, and were you asked to exercise that right and bind him over for three separate and distinct offenses? A. No.

"Q. Did you bind him over on three offenses, or one, with the right of the state to select which one offense he was bound over on? You didn't bind him over on all three any more than you might have bond him over on ten if ten charges were made? A. No. . . .

"Q. And what you meant to do was to bind him over for the offense with which he had been charged; is that right? A. Yes, sir. . . .

"THE COURT: The justice will be permitted to amend the transcript to conform to the facts and show that the defendant was bound over on all three distinct charges that he has been charged with."

Pursuant to this ruling, the justice amended his transcript by interlineation, so as to recite a finding that the crime of statutory rape had been committed on the prosecutrix--

"On the day of , 1922, also on the day of July, 1923, and also on the day of October, 1923, and that there was reasonable cause to believe the defendant guilty," etc.

Defendant also filed a motion to quash the first count of the information invoking in principle, but not specifically, the statute of limitations. Before this motion was ruled on, the state obtained leave to amend the information instanter by inserting the word "May" in the first count so as to name the month in which the first offense was committed. The information was then reverified. Thereupon the plea in abatement and motion to quash were overruled.

Then followed a trial, conviction, denial of a new trial, consecutive sentences on three counts, and this appeal.

Defendant contends that he should not have been put on his trial on the first and third counts, since he was not bound over to answer on the charges involved therein and was bound over only to answer on but one offense--the one the county attorney and the prosecutrix had in mind when the complaint was filed and the warrant for his arrest was issued.

A majority of this court hold that defendant's contention lacks merit. A defendant may be informed against on as many crimes as the evidence adduced at the preliminary hearing tends to show the accused to have committed, whether all of such crimes were charged in the complaint and reiterated in the warrant for his arrest or not. (Crim. Code, § 55, R. S. 62-621; Redmond v. The State, 12 Kan. 172, Syl. § 3; State v. Bailey, 32 Kan. 83, 3 P. 769; and see, also, State v. Fleeman, 102 Kan. 670, 675-676, 171 P. 618.)

It has also been settled in this jurisdiction...