State v. Palmer

• Decision Date: 05 January 1889
• Citation: 20 P. 270,40 Kan. 474
• Parties: THE STATE OF KANSAS v. G. C. PALMER
• Court: Kansas Supreme Court

20 P. 270

40 Kan. 474

THE STATE OF KANSAS v. G. C. PALMER

Supreme Court of Kansas

January 5, 1889

Appeal from Finney District Court.

PROSECUTION for obtaining money under false pretenses. At the May term 1888, the defendant Palmer was found guilty, and sentenced to two years in the penitentiary. He appeals. The opinion states the facts.

Judgment affirmed.

A. J Hoskinson, for appellant.

S. B Bradford, attorney general, for The State; Irwin Taylor, of counsel.

VALENTINE J. All the Justices concurring.

OPINION

VALENTINE, J.:

This was a criminal prosecution in the district court of Finney county upon the following indictment, (omitting title and signature,) to wit:

"At the January term of said court, 1888, the jurors of the grand jury of said county, duly impaneled, sworn, and charged to inquire and true presentment make of all public offenses against the laws of the state of Kansas cognizable by said court, committed or triable within said county, on their oaths do find and present that G. C. Palmer, on the 4th day of November, 1887, at the county of Finney and state of Kansas, unlawfully, feloniously and designedly, with the intent to cheat and defraud one A. D. Cirtwell, did falsely pretend and represent to the said A. D. Cirtwell, that he the said G. C. Palmer was then the owner of a certain three-year-old roan mare, then in his possession in said county, which he desired to sell, and could pass a good title to the said three-year-old roan mare. And the said A. D. Cirtwell, believing the said false pretenses and representations so made as aforesaid to be true, and being deceived thereby, was induced by the said false pretenses and representations so made as aforesaid to purchase from said G. C. Palmer said three-year-old roan mare, and to pay to said G. C. Palmer the sum of seventy-five dollars, which said sum of seventy-five dollars A. D. Cirtwell did then and there pay to said G. C. Palmer for the purchase of said mare; and the said G. C. Palmer, the said seventy-five dollars of the moneys and property of the said A. D. Cirtwell, by means of said false pretenses and representations aforesaid, unlawfully and feloniously did obtain and receive of and from the said A. D. Cirtwell, with the intent him the said A. D. Cirtwell then and there to cheat and defraud of the same, whereas in truth and in fact the said G. C. Palmer was not then and there the owner of said three-year-old roan mare, and had not the right and power to sell the same and to pass a good title to said mare, which he the said G. C. Palmer then and there well knew; contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state of Kansas."

Upon this indictment the defendant was tried before the court and a jury, and was found guilty, and sentenced to imprisonment in the penitentiary for the term of two years, and from this sentence he now appeals to this court.

I. It is claimed that the indictment is insufficient. Now while it is not as formal in some respects as it might be, yet we think it states an offense. It advised the defendant of everything that he was required to meet, and none of his substantial rights were prejudicially affected by any of the supposed defects of the indictment. Hence under the criminal code we think it was sufficient.

II. It is claimed that the court below erred in adjourning the trial for two days, and in permitting the jury in the meantime to separate. But no such adjournment nor any such separation is shown by the record. But even if the same had been shown, it would still be presumed that the adjournment was for a sufficient reason, and that the court in every respect did all that was proper to be done in the case.

III. It is claimed that the court below erred in calling the jury into court on May 29, 1888, while they were deliberating upon their verdict, and telling them that unless they agreed upon a verdict they would be compelled to stay in the jury-room during May 30, a legal holiday. This was not a material error under the circumstances of this case, for the jury did not render their verdict on May 29 or on May 30, but rendered it on May 31; and whether they remained in the jury-room from May 29 to May 31, or where they were during that time, or when they agreed upon their verdict other than as above stated, is not shown.

IV. Several alleged errors are founded upon the asserted fact that the defendant obtained from Cirtwell a check, and not money. The evidence, however, shows that Cirtwell drew the check for $ 75 in favor of the defendant upon the Bank of Western Kansas, and then went with the defendant to the bank identified him, and the bank...