State v. Richards
| Decision Date | 05 July 1913 |
| Docket Number | 18,381 |
| Citation | 90 Kan. 438,133 P. 861 |
| Parties | THE STATE OF KANSAS, Appellee, v. HARRY J. TAYLOR and WILLIAM F. RICHARDS, Appellants |
| Court | Kansas Supreme Court |
Decided July, 1913.
Appeal from Saline district court.
Judgment affirmed.
SYLLABUS BY THE COURT.
1. CONCEALING MORTGAGED PROPERTY--Information Not Bad for Duplicity. Under the statute making it larceny fraudulently to conceal or to sell or dispose of mortgaged property, an information charging the defendant in a single count with concealing, selling and disposing of such property is not subject to a motion to quash because of duplicity.
2. Same. Such an information, so far as it charges a concealment of the property, is not subject to a motion to quash on the ground that the specific means employed to that end are not stated.
3. STATUTES--Words Inadvertently Omitted May be Supplied by Construction. Where in a compilation of the general statutes a word which was correctly included in the official publication is inadvertently omitted, and the legislature for the purpose of effecting a change in the language of another part of the section, reenact it as it appears in the compilation, without inserting the omitted word, such word may be supplied by construction, especially where this is necessary to give effect to the manifest purpose of the statute.
4. Same. In the phrase "the amount of twenty dollars" occurring in the present statute with regard to the fraudulent disposal of mortgaged property (Laws 1911, ch. 226, § 1) the word "over" should be supplied between "the amount of" and "twenty dollars," its omission having been occasioned in the manner indicated.
5. Failure to Require Election--Cured by Instruction. In a prosecution under the statute referred to, any error in overruling a motion to require the state to elect whether it will rely for conviction upon a concealment or a sale of mortgaged property is cured by an instruction that a conviction can only be had upon the charge of concealment.
6. Use of the Word "Conceal" in Statute. The word "conceal" as used in that statute includes an intentional handling and shifting of the property in such a manner as to mislead or confuse the mortgagee in his efforts to find it.
7. Conviction Sustained. The evidence held to be sufficient to sustain the conviction.
H. C. Tobey, and R. A. Lovitt, both of Salina, for the appellants.
John S. Dawson, attorney-general, and Leonard W. Hamner, county attorney, for the appellee; Frank S. Knittle, of Salina, of counsel.
Harry J. Taylor and William F. Richards were convicted upon a charge of concealing mortgaged personal property, and appeal.
The statute under which the defendants were prosecuted reads:
"Any mortgagor of personal property or any other person who shall injure, destroy or conceal any mortgaged property, or any part thereof, with intent to defraud the mortgagee, his executors, administrators, personal representatives, or assigns, or shall sell or dispose of the same without the written consent of the mortgagee or his executors, administrators, personal representatives or assigns, shall be deemed guilty of larceny." (Laws 1911, ch. 226, § 1.)
The information contained but one count. It charged that the defendants did "unlawfully, feloniously and willfully, and with intent to cheat and defraud the Bank of Tescott, the mortgagee, conceal, sell and dispose of without the written consent of said mortgagee, its representatives and assigns, the following personal property"--describing certain cattle.
The defendants urge that a motion to quash should have been sustained on the ground of duplicity, because the information charged two distinct offenses-- (1) concealing the cattle with the intent to defraud the mortgagee, and (2) selling and disposing of the cattle without the written consent of the mortgagee. It has been held that the sale of mortgaged chattels without written consent is not a violation of the statute unless fraud is intended. (The State v. Miller, 74 Kan. 667, 87 P. 723.) A sufficient answer to this objection is found in the rule which has been thus stated:
(22 Cyc. 380.)
In the latter form the rule has been frequently announced by this court, the cases being cited in a note to the text quoted. The rule was applied in a case arising under a statute similar to that here involved, in People v. Wolfrom, 15 Cal.App. 732, 115 P. 1088. The allegations that the cattle were concealed and were sold are not repugnant.
The information is also objected to as not being sufficiently definite. It is urged that it should have alleged to whom the cattle were sold or disposed of, and how they were concealed. The defendants were convicted only of concealing the cattle, and any defects in charging the sale and other disposition are unimportant. The language of the statute was substantially followed, and we think no prejudice resulted from the want of a more detailed statement with regard to the concealment.
The defendants maintain also that the information should have been quashed on the ground that the statute is void because unintelligible. The penalty is thus defined, the phrase giving rise to the objection being italicized:
"For selling, injuring, destroying, concealing or disposing of such property of the value of twenty dollars and under, on which the mortgagee has a lien, or of the value of over twenty dollars, on which the mortgagee has a lien of not more than twenty dollars, such person shall be deemed guilty of petit larceny, and on conviction shall be punished by imprisonment in the county jail not exceeding one year, or by fine not exceeding one hundred dollars, or by both such fine and imprisonment; for selling, injuring, destroying, concealing or disposing of such property of the value of twenty dollars and over, on which the mortgagee has a lien to the amount of twenty dollars, such person shall be deemed guilty of grand larceny, and on conviction, shall be punished by confinement and hard labor not exceeding five years. (Laws 1911, ch. 226, § 1.)
The statute, after declaring it to be petit larceny fraudulently to dispose of mortgaged property which is worth twenty dollars or less, or on which the lien amounts to twenty dollars or less, declares it to be grand larceny so to dispose of mortgaged property worth twenty dollars and over, "on which the mortgagee has a lien to the amount of twenty dollars." On its face the statute thus purports to make the same act both a felony and a misdemeanor, and makes no specific provision for the situation where the property fraudulently concealed or disposed of is worth over twenty dollars and is subjected to a lien of more than that amount. The explanation, however, is very simple. The basis of the statute quoted is section 1 of chapter 105 of the Laws of 1901. In that act as passed and officially published there appeared in lieu of the italicized phrase the words "the amount of over twenty dollars." In republishing the act in the General Statutes of 1901 the word "over" was by a typographical error omitted. (Gen. Stat. 1901, § 4259.) The General Statutes of 1909 followed the General Statutes of 1901, and perpetuated the mistake by leaving out the word "over." In 1911 the legislature, in...
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