State v. Robinson

• Decision Date: 08 October 1927
• Docket Number: 27,040
• Citation: 124 Kan. 245,259 P. 691
• Parties: THE STATE OF KANSAS, Appellee, v. J. O. ROBINSON, Appellant
• Court: Kansas Supreme Court

259 P. 691

124 Kan. 245

THE STATE OF KANSAS, Appellee, v. J. O. ROBINSON, Appellant

No. 27,040

Supreme Court of Kansas

October 8, 1927

Decided July, 1927.

Appeal from Sedgwick district court, division No. 3; JESSE D. WALL judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. CRIMINAL LAW--Preliminary Examination--Validity. Error assigned on the want of a preliminary examination before subjecting defendant to prosecution for feloniously depriving the prosecuting witness of money by false pretenses considered and not sustained.

2. SAME -- Preliminary Examination -- Qualification of Examining Magistrate. The official qualifications of the examining magistrate were not subject to meritorious challenge.

3. INDICTMENT AND INFORMATION--Joinder of Offenses--Offense Composed of Continuous Acts. The amended information which set out with much particularity the facts whereby defendant and two coconspirators obtained five successive sums of money from the prosecuting witness by the continuing use of the same fraudulent scheme founded upon a tissue of false pretenses to which details were superadded as the fraud progressed did not necessarily constitute more than a single criminal offense and defendant's motion to quash was properly overruled.

4. CRIMINAL LAW -- Double Jeopardy -- Effect of Acquittal of One Coconspirator. Where three coconspirators are charged in an information with obtaining money by false pretenses and one of them is separately tried and acquitted and the charge is dismissed against the second, such acquittal and dismissal are not a good defense to a prosecution of the third offender, and his objection to the introduction of evidence was properly overruled.

5. CONTINUANCE -- Absent Witnesses. Error based on the overruling of defendant's application for a continuance considered and not sustained.

6. FALSE PRETENSES--Evidence--Sufficiency. Defendant's demurrer to the evidence was properly overruled.

7. SAME--Instructions. Error assigned on the trial court's refusal to give further instructions to the jury after they had deliberated for some time examined and not sustained.

8. CRIMINAL LAW--Evidence--Admissibility of Similar Offenses. Objections to evidence considered and not sustained.

9. APPEAL AND ERROR--Necessity of Presentation of Motion for New Trial. Error assigned on the alleged prejudicial attitude of the trial judge, not fairly presented to the trial court for its due consideration on a motion for a new trial, does not constitute a basis of reversible error.

L. A. Hasty, Robert Hasty and George Hasty, all of Wichita, for the appellant.

William A. Smith, attorney-general, Roland Boynton, assistant attorney-general, William J. Wertz, county attorney, George L. Adams, Wilmer B. Harms and Paul K. Smith, deputy county attorneys, for the appellee.

OPINION

DAWSON, J.:

The defendant was convicted of obtaining money by false pretenses and appeals.

According to the evidence for the state, the defendant was one of three men who very cleverly imposed on the confidence of one C. P. Hale, whereby they fraudulently induced him to make repeated investments in a certain oil and gas lease of little or no value.

1. The first error urged is that defendant never had a preliminary examination and had not been bound over for trial upon the charges set forth in the information and that his plea in abatement alleging these facts should not have been overruled. However, this plea contained an admission that a complaint had been filed against him and two codefendants, that a warrant had issued thereon and that he had entered into a recognizance for his appearance before an examining magistrate pursuant thereto, and that one E. E. Enoch presumed to qualify and serve as an examining magistrate and judge pro tem. of the city court of Wichita, and that defendant was given a "pretended preliminary examination on the charge of obtaining money by false pretenses as set forth in sad warrant," following which Enoch, the "pretended examining magistrate," bound him over to appear in the district court for trial. In this plea in abatement, also, the record of the examining magistrate was incorporated by reference, so the entire matter was before the district court. There was no prejudicial variance between the charge as originally stated in the complaint and warrant and that stated in the amended information. Both sufficiently apprised the defendant that the state's legal machinery was in motion against him and his codefendants for the grievous offense of swindling C. P. Hale out of the large sum of $ 28,500 by a threadbare confidence game of false pretenses. On that subject there was a thorough airing of the main features of the offense at the preliminary examination, and the magistrate was authorized to bind over defendant for whatever crime or crimes the examination showed him to be probably guilty of, whether specifically set out in the complaint and warrant or not. (R. S. 62-621; State v. Shaw, 72 Kan. 81, 82 P. 587; State v. Handrub, 113 Kan. 12, 213 P. 827; State v. Miner, 120 Kan. 187, 190, 243 P. 318.)

Touching the official character of the examining magistrate, this court has repeatedly condemned the practice of switching the inquiry in a criminal case from that of the guilt or innocence of the accused to that of the magistrate's title to his office (Hancock v. Nye, 118 Kan. 384, 234 P. 945; State v. Billings, 120 Kan. 162, 164, 242 P. 136), and its inexcusable recurrence can have no other effect than to suggest to us at the outset the probability that we have to deal with another appeal quite devoid of merit.

2. Defendant next attacks the amended information, which went into much detail in narrating the facts of the crime. The large sum of $ 28,500, of which defendant and his associates deprived the prosecuting witness, was not obtained in one lump sum, but in various sums which eventually totaled $ 28,500. They induced Hale to invest in the lease by the false pretense that they too were making similar investments in it. They induced him to serve as title holder of the lease and then caused spurious telegrams to be sent to him pretending to offer gradually increasing bids for the lease, and then pretended to disagree on the advisability of accepting some one of these pretended bids, thereby inducing him to buy the interests of first one and then another of the coconspirators. The fraudulent scheme was essentially the same from first to last, although details were added to the tissue of false pretenses as the perpetration of the fraud on Hale progressed.

It seems to be defendant's contention that he should have been prosecuted on separate and independent counts for each particular sum he and his codefendants obtained from Hale, viz.: Count one, for the first sum of money, $ 3,500, they got from Hale; count two, for the next sum, $ 5,000, so taken; count three, for the next sum, $ 7,500; count four, for the next $ 6,000; and count five, for the final sum, $ 6,500. It is possible a prosecution and conviction of defendant on five separate counts with separate and consecutive sentences thereon might have been upheld. But the state's theory of the case was a rational one, and one well supported by the evidence--that Robinson and his associates abstracted all these sums of money from Hale pursuant to a single definite plan, and that the repeated receipts of these sums of money were but incidents of one continuing offense.

In Beasley v. State, 59 Ala. 20, it was held that the obtaining of different quantities of merchandise on separate occasions several days apart by the continued practice of the same false pretense constituted one criminal offense and was not a case for election. In Rosekrans v. People, 3 Hun 287, 292, 293, the court had to determine whether the counterfeiting of separate written instruments which pretended to be a constable's verified account against Saratoga county for official services constituted one or several offenses of forgery. It was held that the bill or account itself, the signature to the affidavit, and the signature to the jurat or certificate, constituted but one crime of forgery. The court said:

"The public prosecutor may, however, allege in the indictment several felonious acts, which, in themselves separately considered, are distinct offenses, so far as they are essential portions of one continuous transaction or connected charge, and collectively constitute but one offense."

See, also, State v. Richmond, 96 Kan. 600, 152 P. 644; State v. Moore, 86 Minn. 422, 61 L. R. A. 819, 90 N.W. 787 and note; 31 C. J. 685, 770, 771.

The information was in fact a bill of particulars, but certainly defendant had no just complaint thereat, although the county attorney might thereby have been handicapped in the prosecution of the charge if he had been less sure of the facts and the evidence and witnesses available to prove them. The motion to quash was properly overruled.

3. Error is also assigned...