State v. Patterson

• Decision Date: 07 March 1903
• Docket Number: 13,025
• Citation: 71 P. 860,66 Kan. 447
• Parties: THE STATE OF KANSAS v. A. J. PATTERSON
• Court: Kansas Supreme Court

71 P. 860

66 Kan. 447

THE STATE OF KANSAS v. A. J. PATTERSON

No. 13,025

Supreme Court of Kansas

March 7, 1903

Decided January, 1903.

Appeal from Cloud district court; HUGH ALEXANDER, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. CRIMINAL PRACTICE -- Irrelevant Matter in Information. It is not absolutely essential that irrelevant matter, ordered to be disregarded, should be obliterated from an information, or that the information be redrafted, when such matter consists of consecutive clauses whose emasculation does not confuse the remaining charge, and the record furnishes the means of applying the order so that its precise effect is disclosed.

2. EMBEZZLEMENT -- City Officer -- Allegation of Intent. The statute not having added in specific words an intent to defraud to the description of the crime of embezzlement by an officer of a city, and having left such intent to be derived from the words "embezzle or convert to his own use," intent to defraud need not be averred in specific words in an information for such crime.

3. EMBEZZLEMENT -- Insufficient Plea in Abatement. An allegation in a plea in abatement, that the defendant "has never had any preliminary examination as required by law for the offense charged," states a conclusion of law and not an issuable fact.

4. EMBEZZLEMENT -- Insufficient Plea in Bar -- Former Acquittal of Forgery. In a criminal action against a city treasurer for embezzling and fraudulently converting to his own use money of the city which came into his hands by virtue of his office, a demurrer is properly sustained to a plea alleging the acquittal of the defendant of the charge of forging entries in his books of account with intent to defraud the city; and objections to the introduction in evidence of the defendant's books containing such entries, and to testimony regarding transactions of the city to which such entries were ascribed, were properly overruled.

5. EMBEZZLEMENT -- Money Collected from Liquor-sellers. In an action of embezzlement against a city treasurer for the fraudulent conversion of money which came into his hands by virtue of his office, it is no defense that he collected such money from persons engaged in unlawful traffic in intoxicating liquor, under an arrangement between the city and such persons whereby immunity from prosecution was secured to them.

6. EMBEZZLEMENT -- Bad Advice of Counsel. In an action of the character referred to in paragraph 5 above, evidence that, after the conversion of the money, and after an admission of his inability to pay the amount due from him to the city, he took the advice of counsel who assured him that he was not subject to a criminal action, and need not account, because the city could not recover the money in a civil action, was irrelevant and properly rejected.

C. C Coleman, attorney-general, G. M. Culver, county attorney, and Harkness & Davis, for The State.

F. W. Sturges, and Park B. Pulsifer, for appellant.

BURCH J. All the Justices concurring.

OPINION

BURCH, J.:

The appellant was convicted of embezzlement of money which came into his hands by virtue of his official position as treasurer of the city of Clyde. The information was drawn under paragraph 2081, General Statutes of 1901, and charged both a refusal to turn over the money of the city upon demand, and a fraudulent appropriation of it to his own use, under separate clauses of the statute. Upon a motion to quash, the district court held that the information did not state facts sufficient to constitute an offense under the clause relating to turning over money upon demand, characterized the language of the information relating to such matter as surplusage, announced that such matter would be disregarded, and sustained the information under the other clause. The appellant then filed a motion to require the state to elect under which clause of the statute it would proceed, which was sustained, and the state elected to proceed under the clause sustaining the information, purged of surplusage.

Error is assigned because the irrelevant matter was not actually obliterated from the paper on which the information was written. Such matter consisted of consecutive clauses whose emasculation nowise confused the remaining charge, and the information still contained a plain written statement, in ordinary and concise language, of facts relied on as constituting a public offense. It is not suggested that the appellant was prejudiced in any way at the trial, and the record in this court furnishes the means of applying the order of the district court so that its precise effect is disclosed. Therefore, no prejudice appears affecting the rights of the defendant in presenting his appeal. It might have contributed to perfection of form, always to be commended, had the information been rewritten, but no substantial right of the appellant was invaded by the course adopted.

The information alleged that the defendant "did then and there unlawfully, feloniously and fraudulently embezzle and convert to his own use" the money of the city, and it is asserted that this is an insufficient charge of wrongful intent. The allegation includes evil intent. The word "fraudulently" relates specifically to appellant's intent in converting the city's money to his own use, and the word "embezzle " itself excludes honesty. It is not necessary to allege that the money was embezzled and converted with the intention to embezzle and convert the same, and it could not be embezzled and converted innocently if done fraudulently. (The State v. Combs, 47 Kan. 136, 27 P. 818.) The statute not having added in specific words an intent to defraud to the description of the crime, and having left such intent to be derived from the words "embezzle and convert to his own use," intent to defraud need not be averred in specific words. (7 Encyc. Pl. & Pr. 441.)

Appellant filed a plea in abatement alleging "that he, the defendant, has never had any preliminary examination as required by law for the offense charged or attempted to be charged therein against him, nor has he in any way ever waived the same, nor been fugitive from justice." The state attempted to join issue on this plea, and appellant demanded a jury trial. This the court refused, and, appellant declining to produce any evidence, the plea was overruled. Conceding that a defendant is entitled to a trial by jury of an issue of fact under a plea in abatement, the appellant suffered nothing by the court's rulings. A plea in abatement must be certain to every intent. (The State v. Hewes, 60 Kan. 765, 57 P. 959.) It will not be aided by any intendment whatever, is construed with the utmost strictness, and must "contain a full, direct and positive averment of all material facts." (1 Encyc. Pl. & Pr. 23.) The statement that defendant had no preliminary examination, "as required by law," was a mere conclusion upon which no issue of fact could arise. Similar phrases have been held to present no issue of fact in many civil cases where the absolute exactness of a plea in abatement is not required.

"The facts stated in this complaint do not show that the judgment in question was void. The allegation that no summons was issued under the seal of the court, and directed and delivered to the sheriff, as required by law, and that no such summons was ever issued, etc., is not good because, instead of alleging the facts, it states only a legal conclusion." (Krug, Sheriff, v. Davis, 85 Ind. 309.)

"An averment that no such petition was filed as the statute requires, is a mere conclusion and not traversable." ( Schuchert v. W. C. & W. R. R. Co., 10 Ill.App. 397.)

"The plaintiff averred in the seventh paragraph of his petition that 'there was no such sale of the property as the law provides, and that there was no compliance with the law after the property was offered for sale.' The defendant moved to strike out the paragraph, on the ground that it averred only a conclusion of law. The motion was sustained, and the plaintiff excepted. He insists that the paragraph should be taken with other paragraphs which he claims contain averments of facts showing in what the illegality of the sale consisted. Whatever is numbered as a distinct paragraph should contain something more than a mere conclusion of law based upon statements of facts contained in some other paragraph. We think the court did not err in sustaining the motion." (Cooper v. French, 52 Iowa 531, 3 N.W. 538.)

"An allegation that S. is not now or never has been legally appointed assignee for N. is a conclusion, and a demurrer thereto should have been sustained." (Smith v. Kaufman & Co., 3 Okla. 568, 41 P. 722.)

Since the plea was fatally defective in one of its material averments, it was not error to refuse a jury to try it, or to overrule it altogether, as was done.

The appellant filed a plea in bar showing that he had been prosecuted for the offense of forging entries in his books of account, and had been acquitted because the false entries had been authorized by the city, and alleging the identity of that offense with the one embodied in the information for embezzlement. A demurrer to the plea was sustained. On the trial appellant's books containing the entries in question were introduced in evidence, and testimony given regarding transactions of the city to which such entries were ascribed. The record in the forgery case was read in evidence, and the court instructed the jury that it was conclusively proved that appellant was innocent of forgery, and had authority from the city to make the entries. It is now urged that the plea was valid and the evidence prejudicial.

The specific charge in the forgery case was that the defendant made certain false entries in his books of account,...