State v. Rogers
| Decision Date | 07 December 1935 |
| Docket Number | 32545. |
| Citation | 52 P.2d 1185,142 Kan. 841 |
| Parties | STATE v. ROGERS et al. [*] |
| Court | Kansas Supreme Court |
Syllabus by the Court.
Order sustaining demurrer to pleas in abatement in criminal action was not appealable until after trial and final judgment.
In prosecution against county commissioners for allowing greater sum on account, claim, or demand against county than amount actually due thereon according to ordinary compensation or price, indictment using disjunctive "or" instead of conjunctive "and" between words "claim" and "demand" and between words "compensation" and "price" held not quashable for duplicity where copy of transaction for which allowance was made was attached to indictment (Rev.St. 1923 19--242, 62--1004, 62--1005).
Where indictment against county commissioners for allowing greater sum on account against county than amount actually due thereon charged allowance of account on date warrant was issued in payment, instead of date of allowance of account and warrant was attached to indictment, indictment held not duplicitous on theory that it also charged issuance of warrant, which was made separate offense (Rev.St. 1923, 19-- 242).
Indictment against county commissioners for allowing greater sum on account against county than amount actually due thereon which alleged offense was committed on or about date stated held not quashable because date stated was a few days later than date of allowance of account (Rev. St. 1923, 19--242).
Indictment against county commissioners for allowing greater sum on account than amount actually due thereon held not quashable on ground that each count showed that respective allowances were made pursuant to written contract and contract was not made part of indictment, since fact that defendants had previously entered into valid contract against county would not necessarily cure unlawful act of allowing bill when presented, if allowance was in fact unlawful (Rev.St. 1923 19--242).
Statute penalizing allowance by county commissioners of greater sum on account, than amount actually due thereon according to "ordinary" compensation or price, held not to violate constitutional provision requiring that accused shall be allowed to demand nature and cause of accusation (Rev.St. 1923, 19--242; Const. Bill of Rights, § 10).
"Ordinary" is defined as an adjective, and meaning, of common or everyday occurrence; customary; usual; as, an ordinary amount of business; according to an established order; methodical; regular; normal. In contradistinction to the word "ordinary," word "extraordinary" is defined as, being beyond or out of the common order or method; exceeding the ordinary degree; not ordinary; unusual; employed for an exceptional purpose or on a special occasion; as a noun it is defined as, something extraordinary; especially, an extraordinary expense or allowance; specifically (Eng.), any allowance made to troops beyond the customary gross paid.
1. In a criminal action, an appeal does not lie from an order sustaining a demurrer to a plea in abatement filed against it until after trial on the indictment and final judgment has been rendered, following State v. Levine, 125 Kan. 360, 264 P. 38.
2. In a prosecution under R.S. 19--242 for allowing a greater sum on an account, claim, or demand against the county than the amount actually due thereon, dollar for dollar, according to the ordinary compensation or price, and where there is attached to the indictment a copy of the transaction for which the allowance is made, held, the use of the disjunctive "or" instead of the conjunctive "and" between the words "claim-demand," and between the words "compensation-price," does not render the indictment fatally defective and subject to a motion to quash on the ground of duplicity.
3. An indictment under R.S. 19--242 which charges the allowance of an account on the date the warrant was issued in payment of the account, instead of the date of allowance of the account, and the warrant is attached to the indictment, the attachment of the warrant does not render the indictment duplicitous on the theory that it also charges the issuance of a warrant which is made a separate offense under the statute. Under this indictment, the gist of the action is the "allowance" of the account, and there can be conviction for that single offense only.
4. Under facts stated in syllabus three, where the indictment alleges the offense was committed "on or about" a date stated, and that date was a few days later than the date of the allowance of the account, the indictment is not subject to a motion to quash by reason of such fact.
5. R.S. 19--242 does not contravene that part of section 10 of the Bill of Rights of the Constitution of the state of Kansas, which provides: "In all prosecutions, the accused shall be allowed *** to demand the nature and cause of the accusation against him."
Appeal from District Court, Sedgwick County, Division No. 2; Robert L. NeSmith, Judge.
Proceeding by the State against George E. Rogers and others. From an order sustaining motions to quash indictment, the state appeals, and from an order sustaining a demurrer to their respective pleas in abatement, defendants cross-appeal.
Order sustaining motions to quash reversed, and cross-appeal dismissed.
Clarence V. Beck, Atty. Gen., Earl B. Swarner, Asst. Atty. Gen., and Sidney L. Foulston, Co. Atty., of Wichita, for the State.
W. D. Jochems, of Wichita, special prosecutor.
H. W. Hart, A. V. Roberts, and Jesse D. Wall, all of Wichita, for appellees.
This was a criminal prosecution under the provisions of R.S. 19--242.
The state has appealed, and defendants cross-appeal. We shall refer to the parties as plaintiff and defendants. The case has not been tried on its merits. Plaintiff appeals from the order of the trial court sustaining motions to quash the indictment. Defendants, the county commissioners, have cross-appealed from the order sustaining a demurrer to their respective pleas in abatement. An appeal does not lie from the latter at this time. In the case of State v. Levine, 125 Kan. 360, 264 P. 38, it was held: "In a criminal action, an appeal does not lie from an order *** sustaining a demurrer to a plea in abatement filed against it until after trial on the indictment and final judgment has been rendered."
Plaintiff had filed a motion to dismiss the cross-appeal. On oral argument, plaintiff, howover, consented to and in fact requested this court to determine the various issues raised by the cross-appeal under various pleas in abatement. We realize such rulings might materially facilitate the trial on its merits. If the issues so raised were decided now, a precedent would be established whereby parties could agree to an appeal on similar matters and obtain rulings on almost every conceivable phase of a lawsuit in advance of the trial on its merits. This court in the Levine Case considered advantages which might accrue by such practice under certain circumstances, but held unless the practice is authorized by statute the court should not recognize it. After careful consideration, we have reached the same conclusion in the instant case. The cross-appeal must therefore be dismissed.
The grand jury of Sedgwick county returned an indictment against each of the three defendants in three separate counts for alleged violations of R.S. 19--242. That statute embraces three separate and distinct misdemeanors. The first deals with allowance of accounts, claims or demands, the second with the issuance of warrants therefor, and the third prohibits the issuance of warrants unless the account, claim, or demand is prepared in certain form, presented and allowed as that portion of the statute directs. The prosecution here involves only the first part of the statute dealing with allowance of accounts, claims, or demands. The first subdivision of R.S. 19--242 reads: "It shall be unlawful for any board of county commissioners to allow any greater sum on any account, claim or demand against the county, than the amount actually due thereon, dollar for dollar, according to the legal or ordinary compensation or price for services rendered, salaries or fees of officers, or materials furnished."
In the first count defendant commissioners were charged in substance with unlawfully, etc., allowing a greater sum on an account, claim, or demand against Sedgwick county, than the amount actually due thereon, dollar for dollar, according to the legal or ordinary compensation or price for services rendered or material furnished to said county, in favor of one W. G. Haun & Co., or W. G. Haun, individual, doing business as W. G. Haun & Co. In particular, they were indicted in this count for allowing $6,337.50 for services of attorneys, and printing blank bonds on $422,500 refunding issue at $15 per thousand.
The second count dealt with the allowance of an account, claim, or demand, in favor of said W. G. Haun, etc., in the sum of $1,500, for legal services and printing of $100,000 of poor emergency bonds.
The third count dealt with the allowance of an account, claim, or demand, in favor of W. G. Haun, etc., in the sum of $1,266.60, for refunding certain other bonds.
The charging part of each count in the indictment is substantially the same. To each count is attached the particular account, claim, or demand on which the prosecution is based, also the record of allowance by the commissioners and the voucher in payment thereof, indicating the particular fund to which it was charged.
Defendants challenge the form and the language in the indictment from its very beginning. The first count of the indictment, without exhibits attached thereto, reads:
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