State v. Morris

• Decision Date: 05 November 1927
• Docket Number: 27,861,27,860
• Citation: 124 Kan. 505,260 P. 629
• Parties: THE STATE OF KANSAS, Appellee, v. SAM MORRIS, Appellant. THE STATE OF KANSAS, Appellee, v. JOHN J. MORRIS, Appellant
• Court: Kansas Supreme Court

260 P. 629

124 Kan. 505

THE STATE OF KANSAS, Appellee, v. SAM MORRIS, Appellant.

THE STATE OF KANSAS, Appellee, v. JOHN J. MORRIS, Appellant

Nos. 27,860, 27,861

Supreme Court of Kansas

November 5, 1927

Decided July, 1927.

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

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. FORGERY--Information--Sufficiency. In a criminal prosecution for forgery where the charge was made in the language of the statute but the usual words of good pleading "with intent to defraud" were omitted, and in defendants' motions to quash and other dilatory pleas their objection to the information was not fairly presented for the trial court's ruling thereon, such ruling forms no basis for reversible error on appeal.

2. The case of State v. Gavigan, 36 Kan. 322, 13 P. 554, overruled.

Rex Etnyre, of Hiawatha, and W. E. Walsh, of Kansas City, Mo., for the appellants.

William A. Smith, attorney-general, and Caleb F. Bowron, county attorney, for the appellee; F. M. Pearl, of Hiawatha, of counsel.

OPINION

DAWSON, J.:

These are appeals from judgments of the Brown county district court in criminal prosecutions for forgery and passing a forged check.

It appears that in December, 1926, the defendants, Sam and John J. Morris, came in an automobile to the filling station of the complaining witness in Hiawatha and purchased some gasoline which they paid for with a forged check purporting to bear the name of Charley De Roin and drawn on a Hiawatha bank for $ 8.

An information was filed against the defendants jointly in two counts, the first of which was for the crime of forgery in the second degree, and the second was for uttering a forged check with intent to defraud.

Motions to quash the informations on verbose and indefinite grounds were overruled, and defendants were put on trial separately. They in turn objected to the introduction of evidence "on the grounds set forth in defendants' motion to quash the information aforesaid." The court sustained the objection so far as it pertained to the second count, but overruled it as to the first. The cause then proceeded to separate trials of defendants on the first count of the information and verdicts of guilty were duly returned after defendants' motions for directed verdicts were severally overruled.

Defendants appeal from the adverse judgments and sentences pronounced on them; and the state conditionally asks consideration of the reserved question of law involved in the trial court's ruling on the second count of the information.

And first, as to the defendants' appeals. In this court, for the first time, defendants reveal the point involved in their motion to quash and in their objection to the introduction of evidence and in their motion for an instructed verdict. They say:

"The first count of the information failed to allege an intent to defraud."

It takes just a line and a half of type to tell this court what was the matter with the information. In the trial court they used a page of type to conceal that point.

In State v. Bell, 121 Kan. 866, 869, 250 P. 281, it was said:

"The rule has been frequently announced by this court, and should be applied here, that whenever a litigant has a meritorious proposition of law which he is seriously pressing upon the attention of the trial court he must raise that point in such clear and simple language that the trial court can understand it, and if his point is so obscurely hinted at that the trial court quite excusably may fail to grasp it, it will avail naught to disturb the judgment on appeal."

Moreover the first count of the information was drawn in substantial conformity with R. S. 21-608, which is the pertinent paragraph of the crimes act defining the crime of forgery in the second degree as committed by defendants. In this paragraph the words "with intent to defraud" are not included. The crimes act deals generally with the crime of forgery and related felonies in article 6 of chapter 21 of the Revised Statutes, and includes some seventeen paragraphs in which "intent to defraud" is an express statutory element of the offense, but it likewise includes some eleven other paragraphs, like R. S. 21-608, which define and denounce different phases of the crime of forgery, and in each of which the words "with intent to defraud" are omitted. This feature of our crimes act was not clearly developed in State v. Gavigan, 36 Kan. 322, 13 P. 554, in which it was held that the absence of an allegation in the information that the forgery was perpetrated with intent to defraud was fatal to a conviction under another section of the crimes act (R. S. 21-628), notwithstanding the statute itself was silent thereon. In that case, also, the defendant was ordered discharged because of the want of this technical averment, notwithstanding the evidence supplied every element of proof to support the verdict and judgment--all of which goes to show that...