State v. Myers

• Decision Date: 24 April 1894
• Citation: 38 P. 296,54 Kan. 206
• Parties: THE STATE OF KANSAS v. C. W. MYERS
• Court: Kansas Supreme Court

38 P. 296

54 Kan. 206

THE STATE OF KANSAS v. C. W. MYERS

Supreme Court of Kansas

April 24, 1894

Decided July, 1894

Appeal from Kiowa District Court.

ON the 24th of April, 1894, there was filed in the office of R. A Dowell, justice of the peace in and for Kiowa county, a warrant for the arrest of C. W. Myers, the defendant. The body of the warrant was as follows:

"It appearing that there are reasonable grounds for believing that, at the county of Kiowa and state of Kansas, one C. W Myers, as the vice president, manager and officer of the bank of Greensburg, of Greensburg, Kiowa county, Kansas, has committed the offense of feloniously and unlawfully receiving and accepting on deposit in said bank money, bank bills notes, United States treasury notes, gold certificates silver certificates, currency, and other notes, bills drafts, gold coin, and silver coin, which then circulated as money, after said bank was known by said C. W. Myers to be insolvent, and of being accessory to, conniving at and permitting such deposits in said bank after the same became and was insolvent, you are commanded forthwith to arrest C. W. Myers, and bring him before some magistrate of the county of Kiowa, to be dealt with according to law."

After the defendant was arrested and brought before the justice of the peace, he moved to quash the warrant, for the reason that it did not state facts sufficient to constitute a public offense, and because it was indefinite and uncertain in not informing the defendant from whom the deposit was received, nor who was the owner of the deposit, and because it failed to state the value of said deposit, and for other reasons, which motion was overruled. On motion of Hon. John T. Little, attorney general, the warrant was so amended as to read, "known by the said C. W. Myers to be;" whereupon defendant waived a preliminary examination upon the warrant, and was bound over to appear to the district court. After the waiver of the preliminary examination by the defendant, an information was filed, on the 4th of June, 1894, in the district court, containing two counts, one charging the defendant with having, on the 23d day of November, 1893, received a deposit from J. D. Mitchell, of the value of $ 388, knowing the bank to be insolvent, and the other count charging him with being accessory to and permitting the receiving on deposit in said bank from J. D. Mitchell, on the 23d day of November, 1893, of $ 388. On the 18th day of June, 1894, the defendant filed a plea in abatement to each of these counts. This plea in abatement was verified, and the state entering no denial of the allegation that defendant was not a fugitive from justice, stood upon the record, and the court overruled the plea in abatement. The defendant thereupon filed a motion to quash the information, which was overruled. The case then proceeded to trial. On the 10th day of July, 1894, the jury returned a verdict against the defendant of guilty as charged in the second count of the information. Subsequently, motions for a new trial and in arrest of judgment were filed. These were overruled by the court. On the 25th day of July, 1894, the defendant was sentenced as follows:

"It is the sentence of the court that you, C. W. Myers, be remanded to the custody of the sheriff of Kiowa county, Kansas, and that at such reasonable time as may be convenient for him you be by him conveyed to the penitentiary of the state of Kansas, in the city of Lansing, and that you be there confined at hard labor for the period of five years, and that you pay the costs of this case herein, taxed at $ 1,125.15."

The defendant appeals.

Judgment reversed and cause remanded.

L. M. Day, and Ady, Peters & Nicholson, for appellant:

1. The court erred in overruling the plea in abatement. See The State v. Bailey, 32 Kan. 88, 89; Redmond v. The State, 12 id. 172; The State v. Reedy, 44 id. 190.

2. The motion to quash the information should have been sustained, because, first, it does not show that the defendant took the deposit with the intention of defrauding; second, it does not show that anybody has been defrauded or has suffered a loss. See 1 Bish. Cr. L., § 205; 3 Greenl. Ev., § 123; The State v. Bush, 45 Kan. 138; 4 Am. & Eng. Encyc. of Law, p. 681.

3. The court erred in overruling the challenge for cause to the juror J. H. Chandler, who had an opinion that the bank was insolvent at the time it was closed. The State v. Snodgrass, 52 Kan. 174, 179.

4. Just prior to the statement by the state to the jury, the defendant moved the court to compel the state to elect upon which one of the counts it would proceed to trial, which motion was by the court overruled. There was no reason why the court should not have compelled the state to make its election.

5. When the state offered its first testimony, the defendant objected to the introduction of any testimony upon the information and upon either count of it, for the reason that the information and neither count of the information states a cause of action or an offense against this defendant, which objection was overruled, and defendant excepted. The errors of the ruling of the court upon the introduction of testimony were so numerous, as we think, that it would really be tiresome, and in this case unnecessary, to distinctly point them out.

6. As to the instructions given by the court: We pass them over with the assertion that not to exceed three out of the whole number, when considered together, are free from legal error. The 6th, 7th, 8th, 9th, 12th, 13th, 14th, 16th 17th, 18th, 19th, 20th and 21st instructions asked for the defendant should have been given. See Desty, Am. Cr. L., § 46b; Crim. Code, § 228; The State v. Child, 40 Kan. 484, 485; The State v. Lawrence, 43 id. 125; The State v. Clark, 46 id. 65; Levan's Appeal, 13 A. 804; The state v. Palmer, 50 Kan. 318; The State v. Witt, 34 id. 488, 496.

7. The motion for a new trial should have been sustained, not only for the reasons that there was error in impaneling the jury, in the introduction of testimony, in the instructions of the court, but also because the evidence failed to show the defendant guilty. See The State v. Douglass, 44 Kan. 618, 625.

The motion in arrest of judgment, raising practically the same questions as the motion to quash, should also have been sustained, for the reasons given by us under the proper heading.

8. The court erred in sentencing the defendant.

"A sentence fixing the commencement of the sentence at a period about two years subsequent to the date of sentence, no reason appearing why it was so made to commence, is erroneous, and it will not be presumed in favor of it that it was cumulative." Lockhart v. The State, 13 S.W. 1012. See, also, In re Strickler, 51 Kan. 700.

John T. Little, attorney general, E. A. Fisher, and Win.

McK. Milligan, county attorney, for The State:

The court did not err in overruling the defendant's plea in abatement. See The State v. Smith, 13 Kan. 296; The State v. Bailey, 32 id. 83.

The appellant complains because the court overruled his motion to quash the information. This is a statutory offense, and the information follows the words of the statute. That is sufficient. The State v. Foster, 30 Kan. 365.

The appellant complains that the court erred in overruling his challenges for cause to certain jurors. None of the jurors who were retained to try the case testify that they had an opinion or even an "impression," "idea," or "belief," as to the defendant's guilt or innocence. None of the jurors testify that they had an opinion, impression, idea or belief as to whether or not the bank of Greensburg was insolvent on the 23d day, of November, 1893. Indeed, all who were questioned upon that subject say that they had no opinion, idea, impression or belief on that subject. The State v. Medlicott, 9 Kan. 257; The State v. Spaulding, 24 id. 1.

The defendant, moved the court to compel the state to elect upon which one of the counts it would proceed to trial. The court below overruled this motion, and the appellant alleges that there was error in so doing. Upon this point, it is sufficient to refer to the cases of The State v. Hodges, 45 Kan. 389; The State v. Zimmerman, 47 id. 242.

The appellant, so far as we can see, does not make it it appear that the court below committed a single substantial error in the introduction of the testimony. His counsel seem to forget an elementary and very wholesome rule of evidence, to wit: That when it is necessary to prove the results of voluminous facts or of the examination of many books and papers, and the examination cannot be conveniently made in court, the results may be proved by secondary evidence. 21 Am. & Eng. Encyc. of Law, p. 991; Burton v. Briggs, 20 Wall. 125; Whar. Ev. (3d ed.), ch. 80; 1 Greenl. Ev. (14th ed.), 93; L. T. & S.W. Rly. Co. v. Paul, 28 Kan. 816.

We are not called upon, however, to discuss whether or not the court properly instructed the jury. There is absolutely no exception shown by the record to the instructions given by the court, and hence this court cannot review that matter. Comm'rs of Allen Co. v. Boyd, 31 Kan. 765. The defendant, by his failure to except to the instructions given, assented to the propositions of law therein contained, and waived his exceptions to the refusal of the court to give instructions containing contrary propositions.

Counsel raise the question of a sufficiency of the evidence to sustain the verdict; but, unfortunately, the appellant is not in a shape to raise that question in this court, for the reason that the record does not contain all the evidence. And on that proposition we desire to call the court's attention, first, to the fact that nowhere in the body of the bill is there a statement that it...