State v. Pigg
| Decision Date | 03 July 1909 |
| Docket Number | 15,910 |
| Citation | 80 Kan. 481,103 P. 121 |
| Parties | THE STATE OF KANSAS v. RANSOM PIGG |
| Court | Kansas Supreme Court |
Decided July, 1909.
Appeal from Shawnee district court; ALSTON W. DANA, judge.
Judgment affirmed.
SYLLABUS BY THE COURT.
1. PRELIMINARY EXAMINATION--Purposes--Effect of Waiver on Introduction of Evidence. The purpose of a preliminary examination is threefold: (1) To inquire concerning the commission of crime and the connection of the accused with it, in order that he may be informed of the nature and character of the crime charged against him, and, if there be probable cause for believing him guilty, that the state may take the necessary steps to bring him to trial; (2) to perpetuate testimony; (3) to determine the amount of bail which will probably secure the attendance of the accused to answer the charge. The right of the state to introduce evidence at a preliminary examination can not be defeated by the accused waiving an examination.
2. PRELIMINARY EXAMINATION--Court of Topeka--Jurisdiction. The act creating the court of Topeka (Laws 1899, ch. 129) confers upon the judge of that court the power and jurisdiction of a justice of the peace in preliminary examinations of persons accused of felony.
3. PRELIMINARY EXAMINATION--Transcript--Subsequent Attestation. Where the clerk of a city court has failed to sign the certificate attached to the transcript of a preliminary examination held before the judge of such court it is proper for the district court to permit the certificate to be amended by having the clerk attach his signature.
4. LARCENY--Identification of Property. In a prosecution for larceny, where the money described in the information and claimed to have been stolen is introduced in evidence and exhibited to the jury, it is not necessary that the particular bills should be identified as the ones described in the information.
5. LARCENY--Judicial Notice of Value of Money. Courts take judicial cognizance of the value of money. In a prosecution for the larceny of certain United States treasury notes and national bank notes, where the particular bills which it is claimed were stolen are offered in evidence proof of their value is unnecessary.
6. LARCENY--Title of Stolen Property May be Laid in Possessor. The actual status of the legal title to stolen property is no concern of the thief. In an information charging larceny the title to the property may be laid either in the owner or the person in whose possession it was when it was taken, even though that person had stolen it from some one else.
Fred S. Jackson, attorney-general, and J. J. Schenck, county attorney, for The State.
D. C. Tillotson, for the appellant.
Ransom Pigg, the appellant, was arrested and brought before E. R. Simon, judge of the court of Topeka, on a warrant charging him with grand larceny in stealing a sum of money. He offered to waive a preliminary examination. The complaining witness, John McIntosh, is a cousin of the appellant, and resided at that time in Missouri. The county attorney asked to have McIntosh examined and a recognizance taken for his appearance as a witness at the trial. Over the objection of the appellant this was done, and from the evidence it appeared that there was probable reason for believing the appellant guilty of larceny from the person. He was accordingly bound over to the district court to answer that charge. Afterward an information was filed in the district court charging him with larceny from the person. He was tried, convicted, and judgment was rendered upon the conviction. He was refused a new trial, and appeals.
The principal claim here is that the court erred in overruling his plea in abatement. In this plea he alleged that he had never been given a preliminary examination for the offense charged in the information, had never waived the same, and was not a fugitive from justice. The law is well established that a new offense can not be added after the defendant has waived an examination. (The State v. Spaulding, 24 Kan. 1; The State v. Jarrett, 46 Kan. 754, 27 P. 146.) This declaration of law has usually been made in cases where the defendant had waived his right to a preliminary examination and no testimony was in fact taken. It is equally well settled that if it appear on the examination that the defendant is guilty of a public offense other than that charged in the warrant he may be bound over for that offense. In the syllabus in Redmond v. The State, 12 Kan. 172, it was said:
"In such a case, in justice to the defendant a new complaint ought to be filed, but the statute does not in terms require it." (Syllabus.)
In The State v. Fields, 70 Kan. 391, 78 P. 833, it was said:
"The language of the statute permitting a prosecution for a felony other than that charged in the warrant apparently limits the right to cases in which it appears upon a hearing that the defendant is guilty of such other offense." (Page 395.)
Assuming that the offense of larceny from the person--for which the defendant was tried and convicted--is a distinct and separate offense from larceny, the appellant having waived a preliminary examination only for the offense charged in the warrant the county attorney was not authorized to file an information against him charging him with larceny from the person unless in virtue of the fact that testimony was taken at the examination tending to show him to be guilty of that offense.
Obviously, we have a different question presented from that decided in the cases cited. It is the contention of appellant that when he offered to waive examination there was nothing for the magistrate to do but to bind him over to answer the particular charge; in other words, without the filing of a new complaint charging a different offense the examining magistrate was without jurisdiction to hear any evidence. This contention can not be sustained. We are aware of no law forbidding the practice, and certainly there is no good reason why a prosecuting attorney may not introduce evidence before the examining magistrate notwithstanding the accused has waived a preliminary examination. At the time the waiver is made the prosecutor may not have knowledge of facts that would authorize the filing of another complaint. It is apparent that the interests of justice will often require that some evidence be introduced by the state. The prosecutor may wish to make a preliminary investigation to learn the facts so that he may proceed intelligently in the subsequent prosecution of the case, or to preserve the testimony of a witness. It may become necessary, as in this case, to examine a witness in order to furnish a basis for requiring a recognizance for his appearance at the trial. Besides, the state has an interest and concern in the discharge of an accused person when there is no ground for believing him guilty. In The State v. Goetz, 65 Kan. 125, 69 P. 187, Mr. Justice Cunningham, speaking for the court, used this language:
"While one object of a preliminary examination is to inform the defendant of the nature and character of the crime charged against him, it is also a step and a necessary step in the proceeding that leads up to his trial in the district court." (Page 127.)
Indeed, the purpose of a preliminary examination may be said to be threefold: (1) To inquire concerning the commission of crime and the connection of the accused with it, in order that he may be informed of the nature and character of the crime charged against him, and, if there be probable cause for believing him guilty, that the state may take the necessary steps to bring him to trial; (2) to perpetuate testimony; (3) to determine the amount of bail which will probably secure the attendance of the accused to answer the charge.
In State ex rel. Attorney-general v. Judge, 104 La 237, it was held that the right of the state to demand a preliminary examination can not be defeated by the accused waiving an examination. The statute authorizing preliminary examinations which was construed in that case is much broader and more explicit in its provisions than ours. It is made the duty of the examining magistrate to open proceedings of inquiry touching the accusation, to examine under oath the witnesses, and to reduce their depositions to writing. The testimony thus taken, both that of the witnesses and of the accused, has been held under proper circumstances to be competent evidence before grand and petit juries. ( State v. Wiggins, 50 La. Ann. 330, 23 So. 334.) The court, in State ex rel. Attorney-general v. Judge, supra...
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