State v. Sansewich
| Decision Date | 06 October 1923 |
| Docket Number | 24,976 |
| Citation | 219 P. 497,114 Kan. 448 |
| Parties | THE STATE OF KANSAS, Appellee, v. PAUL SANSEWICH, Defendant (K. WIENCHA, Appellant) |
| Court | Kansas Supreme Court |
Decided July, 1923.
Appeal from Wyandotte district court, division No. 3; WILLIAM H MCCAMISH, judge.
Judgment affirmed.
SYLLABUS BY THE COURT.
1. ARSON--Burning of Insured Property--Sufficient Information. An information drawn under the arson statute, relating to burning of insured property (Gen. Stat. 1915, § 3425), considered, and held sufficient as against a motion to quash on the grounds there was no charge the burned property was insured, no charge in terms the property was insured against fire, no charge of intent to defraud, and no charge anything done was unlawful.
2. SAME--Insurance Agent's Records Competent Evidence. The insurance agent's records of the policies delivered to defendants, containing the most material features of the policies, were properly received in evidence.
3. SAME--Omission to Prove Corporate Character of Insurers Not Fatal. The information charged the policies were issued by named companies which were corporations. Held, it was not fatal to the verdict of guilty that corporate character of the insurers was not proved.
J. H. Brady, and T. F. Railsback, both of Kansas City, for the appellant.
C. B. Griffith, attorney-general, Justus N. Baird, county attorney, Harry Hayward, and David E. Henderson, assistant county attorneys, for the appellee.
The defendants were jointly charged with arson in the third degree. Separate trials were demanded. Both were convicted, and this is Wiencha's appeal.
Beginning with a motion to quash, the information was assailed at all stages of the proceeding. The material portions of the pleading follow:
"On or about the 4th day of June, 1922, one Paul Sansewich and K. Wiencha did unlawfully, willfully and feloniously conspire together and agree, with intent to cheat and defraud The Commonwealth Insurance Company of New York, The Alliance of Philadelphia, The Twin City of Minnesota, and The Minneapolis Fire and Marine, corporations, then and there being insurers of the following described property, the household goods, furniture, hardware, paint and painter's supplies, and the stock of goods, located in a store building at 601 Central avenue, Kansas City, Kansas, the said above described property being then and there the property of them, the said Paul Sansewich and K. Wiencha, to set fire and to burn the same, to cause the above described property to be burned and set fire to, and they, the said Paul Sansewich and K. Wiencha, pursuant to said conspiracy, did set fire to and did burn the said above described property, and they, the said Paul Sansewich and K. Wiencha, did cause the said above described property to be set fire and to be burned, contrary to the statute in such case made and provided."
The statute reads as follows:
"Every person who shall burn . . . any goods, wares, or merchandise, . . . which shall at the time be insured against loss or damage by fire, with intent to defraud or prejudice the insurer, . . . shall be upon conviction adjudged guilty of arson in the third degree." (Gen. Stat. 1915, § 3425.)
It is argued the first part of the information, charging a conspiracy, was surplusage and, ignoring the surplusage, there is no charge the property was insured, no charge the property was insured against fire, no charge of intent to defraud, and no charge that anything done was unlawful. The conspiracy allegation may not be treated as surplusage. The allegation is, the defendants, pursuant to the conspiracy, burned the property. Since the burning was done conformably to the conspiracy, we may look to the elements of the conspiracy for the facts attending the burning, which facts carry through to the end of the information. Therefore we have a burning done feloniously, with intent to defraud insurers of property which was insured, and every essential of the statute is comprehended.
It is true the information is a poor piece of criminal pleading. The simple, natural order of the statute should have been followed, without lugging in conspiracy. Instead of stating the property was insured, the information states that named corporations were insurers of the property, and there is no direct allegation of insurance against fire. If, however, the corporations named were then and...
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