State v. Stoffel
| Decision Date | 09 April 1892 |
| Citation | 48 Kan. 364,29 P. 685 |
| Parties | THE STATE OF KANSAS v. JOHN STOFFEL |
| Court | Kansas Supreme Court |
Appeal from Seward District Court.
THE material facts are stated in the opinion.
Judgment reversed and cause remanded.
Jas. K Beauchamp, for appellant; T. S. Brown, of counsel.
John N Ives, attorney general, and T. W. Marshall, county attorney for The State.
OPINION
John Stoffel was prosecuted upon a charge of robbery, and convicted of grand larceny. He appeals, and his first ground of error is that the original complaint filed before the magistrate charged him with stealing the animal "lawfully" instead of "unlawfully;" and hence he urges that no crime was committed, and no reason exists for his arrest or prosecution. The word "lawfully" is the one used in the record, but, from the other terms employed in describing the offense, it would appear that this defect was a clerical error. However, it is unimportant now, as the warrant was the basis of the preliminary examination, and not the complaint. It served its purpose when the arrest of the defendant was accomplished, and if he desired to challenge its sufficiency, he should have done so by a motion to quash the warrant. (Redmond v. The State, 12 Kan. 172; The State v. Reedy, 44 id. 190.)
An objection is made to the verification of the information. It was verified upon the knowledge and belief of the county attorney. This is a substantial compliance with the requirements of the criminal code. (Gen. Stat. of 1889, P 5131; The State v. Montgomery, 8 Kan. 351; The State v. Nulf, 15 id. 404.)
It is contended in argument that the court erred in overruling a plea in abatement. It is claimed that this plea raised the question that the information charged a different and higher grade of offense than the one stated in the warrant upon which the defendant was arrested. The confused state of the record, however, with reference to when and in what respect the information was amended, precludes a determination of this question. Another sufficient reason is, that the grounds that were stated in the plea in abatement cannot be ascertained from the record.
It is contended that the defendant was tried for an offense not charged in the information. It charges --
"That on the 5th day of March, A. D. 1890, in the county of Grant and state of Kansas, one John Stoffel did then and there unlawfully, feloniously, forcibly, and violently, from the person and in the presence of one Karl Gall, then and there being, by putting him in fear of injury to his person and property, steal, take and carry away from the person and in the presence of the said Karl Gall one medium-sized black mare, three years old, of the value of $ 100, in the possession and in the control of the said Karl Gall, property belonging to Karl Gall, jr., and against the will of the said Karl Gall, and from the premises, person and presence of the said Karl Gall, with the intent feloniously to steal, take and carry said mare away, suffered by the said Karl Gall to be taken and carried away through fear of great injury and harm to the person and property of said Karl Gall, and to the persons of the members of his family, threatened to be inflicted by the said John Stoffel, at divers times prior to and at the time of the taking of said mare by the said John Stoffel, with the felonious intent of him, the said John Stoffel, in so doing, him, the said Karl Gall, then and there to rob," etc.
The case was tried upon the theory that the offense charged was robbery in the second degree, and the court instructed the jury that the defendant was charged with a violation of § 74 of the crimes act, which reads:
"Every person who shall be convicted of feloniously taking the personal property of another, in his presence or from his person, which shall have been delivered or suffered to be taken through fear of some injury to his person or property, or to the person of any relative or member of his family, threatened to be inflicted at some different time, which fear shall have been produced by the person so receiving or taking such property, shall be adjudged guilty of robbery in the second degree." (Gen. Stat. of 1889, P 2203.)
In this respect the court erred. It is probable that the charge is sufficient under § 73 of the crimes act to constitute robbery in the...
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