State v. Stiff

• Decision Date: 06 December 1924
• Docket Number: 25,458
• Citation: 234 P. 700,117 Kan. 243
• Parties: THE STATE OF KANSAS, Appellee, v. JAMES L. STIFF, Appellant
• Court: Kansas Supreme Court

234 P. 700

117 Kan. 243

THE STATE OF KANSAS, Appellee, v. JAMES L. STIFF, Appellant

No. 25,458

Supreme Court of Kansas

December 6, 1924

Decided July, 1924

Appeal from Cowley district court; OLIVER P. FULLER, judge.

Judgment reversed.

SYLLABUS

SYLLABUS BY THE COURT.

1. CRIMINAL LAW--Receiving Property Known to be Stolen--Jury Empaneled and Sworn--Defendant Once in Jeopardy--Jury Discharged Without Defendant's Consent and for No Statutory Reason--Defendant Cannot Be Again Placed in Jeopardy for Same Offense. A person who is brought to trial on an information which, although defective, sufficiently charges an offense to sustain a judgment on a verdict of guilty, is placed in jeopardy when the jury is sworn to try the cause; and, where the jury is afterward discharged for a reason other than one of those contained in section 60-2914 of the Revised Statutes, he cannot be again brought to trial for the same offense charged in another information.

2. SAME--Jury Wrongfully Discharged Without Defendant's Consent. A defendant charged with a criminal offense cannot be said to have consented to the discharge of a jury without a verdict where, before pleading, his motion to quash the information had been denied and afterward a jury had been sworn to try the cause and was discharged before the introduction of evidence without the request of the defendant other than by his motion to quash the information.

L. D Moore, of Winfield, for the appellant.

Charles B. Griffith, attorney-general, Frank C. Baldwin, assistant attorney-general, and C. H. Quier, county attorney, for the appellee.

Marshall, J. Dawson, Hopkins, JJ., dissenting.

OPINION

The opinion of the court was delivered by

MARSHALL J.:

The defendant appeals from a judgment convicting him of having knowingly received $ 1,400 in government bonds that had been stolen from the Benton State bank, in Butler county.

1. The defendant argues that he has been twice put in jeopardy for this offense. On November 28, 1920, an information was filed against him charging him with the commission of the offense, but in the charging part of the information it was not alleged that the offense had been committed in Cowley county. The parts of the information material in the consideration of the question presented were as follows:

"In the District Court of Cowley County, Kansas.

STATE OF KANSAS, Plaintiff, v. JAMES L. STIFF, Defendant.

INFORMATION.

"Comes now Ellis Fink, county attorney of Cowley county, Kansas, and gives the court to understand and be informed:

"That on or about the 12th day of September, 1919, the defendant, James L. Stiff, did then and there unlawfully, feloniously and knowingly receive and purchase the following described personal property . . . all of the aggregate value of $ 1,400, the said property then and there having lately before been feloniously stolen, taken and carried away from The Benton State Bank, . . . and he, the said James L. Stiff, then and there, at the time he received and purchased said personal property as aforesaid, well knew said personal property to have been so stolen as aforesaid . . . ELLIS FINK, County Attorney.

"State of Kansas, Cowley County, ss:

"Ellis Fink, being first duly sworn, on his oath states that he is the county attorney of Cowley county, Kansas; that he has read the above and foregoing information, and that the statements and allegations therein contained are true as he is informed and verily believes.

ELLIS FINK.

"Subscribed and sworn to before me this 26th day of November, 1920.

"ANNA L. TONKINSON,

(Seal.)

"Clerk of the District Court."

When the case was first called for trial, on November 29, 1920, the defendant filed a motion to quash the information. The motion alleged "that the information does not state facts sufficient to constitute a public offense under the laws of the state of Kansas." No defect in the information was called to the attention of the court. That motion was denied on December 1, 1920. On the next day a jury was impaneled and sworn to try the cause. After the jury had been sworn and while making the opening or trial statement to the jury, counsel for the state discovered that the information did not specifically charge that the offense had been committed in Cowley county, and asked leave to amend the information so as to allege that the offense had been committed in that county. The court denied the application, set aside the order denying the motion to quash the information, entered an order sustaining that motion, and discharged the jury from further consideration of the cause. Afterward another information was filed charging exactly the same offense and charging that it had been committed in Cowley county. To that information the defendant pleaded that he had been tried for the offense charged therein, and set out in his plea the facts as above stated. The court denied the plea of former jeopardy and compelled the defendant to go to trial. The trial resulted in a verdict of guilty, and judgment was pronounced thereon. From that judgment the defendant appeals.

Part of section 10 of the bill of rights of the constitution of this state reads:

"No person shall . . . be twice put in jeopardy for the same offense."

The rule is that, when a person, charged with the commission of a crime, is brought to trial, and a jury is impaneled and sworn to try the cause, jeopardy attaches; and if for any reason other than those mentioned in section 60-2914 of the Revised Statutes, the jury is discharged without reaching a verdict, the defendant cannot again be tried for that offense. Section 60-2914 of the Revised Statutes reads as follows:

"The jury may be discharged by the court on account of the sickness of a juror, or other accident or calamity, or other necessity to be found by the court requiring their discharge, or by consent of both parties, or after they have been kept together until it satisfactorily appears that there is no probability of their agreeing."

In The State v. Reed, 53 Kan. 767, 37 P. 174, this court said:

"The discharge of a jury before the completion of a trial, without the consent of the accused, and without sufficient reason, will ordinarily bar a further trial." (Syl. P 1.)

In The State v. Allen, 59 Kan. 758, 54 P. 1060, this court said:

"Where a defendant has been placed upon trial on a criminal charge and the jury is duly impaneled and sworn, the court cannot arbitrarily discharge the jury before a verdict is returned; and a discharge in such case unless an absolute necessity, and for reasons which are sufficient in law, will operate as an acquittal.

"The essential facts upon which the discharge is based, and the finding of the court thereon, must be entered of record, and unless the record shows the existence of such facts and the decision of the court thereon, and that they constitute sufficient grounds for discharge, the defendant cannot again be put on trial for the same offense." (Syl.)

No reason coming within the provisions of 60-2914 of the Revised Statutes is shown for the discharge of the jury on the trial of the defendant under the first information.

The following language is found in 16 C. J. 237:

"A defendant in a criminal prosecution is in legal jeopardy when he has been placed upon trial under the following conditions: (1) Upon a valid indictment or information; (2) before a court of competent jurisdiction; (3) after he has been arraigned; (4) after he has pleaded to the indictment or information; and (5) when a competent jury have been impaneled and sworn."

All the conditions that constitute jeopardy are found in the present case, unless it be that of a valid information. This subject will be discussed.

As noted in the quotation from 16 C. J. 237, there is this qualification of the rule concerning former jeopardy--that if the indictment or information on which the person is first tried does not charge an offense sufficiently to sustain a judgment or conviction on a plea of guilty or on a verdict of guilty, jeopardy does not attach because there is no valid information and consequently no offense charged. In 16 C. J. 241 is found the following:

"Subject to the qualifications hereafter stated, the general rule is that, in order that jeopardy may attach, there must be a valid indictment, information, or complaint. . . . So where the indictment or information is so defective in form or substance that it will not support a conviction, it cannot form the basis of proceedings which will put defendant in jeopardy and bar another prosecution. But if the indictment is not so defective that it will not be cured by the verdict, then the accused has been in jeopardy, and the plea of autrefois acquit will be good."

The first information filed against the defendant sufficiently charged the offense unless it be that the information did not state where the offense had been committed. Did the failure of the information to charge specifically, in the charging part thereof, that the offense had been committed in Cowley county render the information so defective that if the defendant had pleaded guilty thereto, judgment could not have been pronounced against him?

In Guy v. The State, 1 Kan. 448, is found a discussion of a question closely analogous to the one now under consideration. This court there said:

"An objection to an indictment commencing as follows: 'In the second judicial district sitting in and for the county of Doniphan, March term, 1862. The State of Kansas v. Alfred Guy: Indictment. The jurors of the grand jury, selected empaneled and sworn in and for the body of said county, charged to inquire of offenses committed within the said county, in the name and by the authority of the state of Kansas, upon their...