State v. Tilney

Decision Date10 March 1888
Citation17 P. 606,38 Kan. 714
CourtKansas Supreme Court

Appeal from Marshall District Court.

PROSECUTION for grand larceny. From a conviction and sentence at the August Term, 1887, the defendant Tilney appeals. The facts appear in the opinion.

Judgment reversed.

Lowe & Smith, and J. A. Broughten, for appellant;

S. B Bradford, attorney general, for The State.

JOHNSTON J. All the Justices concurring.



In August, 1887, Robert Tilney was convicted on a charge of grand larceny, and sentenced to confinement at hard labor in the state penitentiary for a term of four years. The information on which the conviction rests charges that he "did then and there unlawfully and feloniously steal take, and carry away national bank notes, United States treasury notes, and United States silver certificates, money of the amount and value of one thousand dollars." It was contended in the trial court, and the same point is here made, that the information is fatally defective in not describing with sufficient certainty the money alleged to have been stolen. This point was raised at different stages of the prosecution: First, by a motion to quash the information; second, by an objection to the introduction of testimony; and finally, by a motion in arrest of judgment -- each of which was overruled, and exceptions were taken. It will be observed that three kinds of money are charged to have been stolen, but the number, denomination, or amount of each kind, or of any of the notes or certificates, is not stated. No reason is stated for the meager and indefinite description given, nor is there any statement of inability on the part of the prosecution to give a more particular description of the money claimed to have been stolen.

We cannot hold the information to be sufficient. While the criminal code of our state has relaxed somewhat the common-law rules respecting matters of form in criminal pleading, still in matters of substance there has been practically no change. The constitution ordains that in all prosecutions the accused is entitled to demand the nature and cause of the accusation against him; and § 104 of the criminal code enacts that "the indictment or information must be direct and certain, as it regards the party and the offense charged." In a prosecution for larceny, a definite description of the property stolen is important and necessary, in order that the court may determine whether that which is imputed against the defendant amounts to a crime, and whether it has jurisdiction of the same; and also to inform the defendant of the precise charge and enable him to prepare for his defense; and further, to enable the court to properly pronounce judgment, and to make that judgment available as a bar to any subsequent prosecution or conviction of the defendant for the stealing of the same property. These requirements are not satisfied by the general description that was given in the present case. The rules of law and fairness to the accused require that as definite a description as the nature of the property stolen will admit of should be given; and where the grand jury or prosecutor is unable to give a definite description, the fact should be stated. In The People v. Ball, 14 Cal. 101, an indictment for larceny describing the money as "$ 3,000 lawful money of the United States," was held to be insufficient. The court remarked that "in an indictment for larceny, money should be described as so many pieces of the current gold or silver coin of the country, of a particular denomination, according to the facts." In a prosecution for larceny in Michigan, the information described the property as "$ 135 of the property, goods and chattels of John C. Connell," and gave no excuse for the want of greater particularity. The court held that by the well-settled principles of common-law pleading the defendant was entitled in fairness to either a statement of the kind, denomination and number of the pieces, notes or bills claimed to have been stolen, or to an allegation of some excuse for the omission, and held the information to be fatally defective. ( Merwin v. The People, 26 Mich. 298.) The supreme court of Kentucky held an indictment to be insufficient which charged that the defendants took and carried away "one lot of treasury notes called greenbacks, the issue of the treasury of the United States of America, and one lot of Kentucky bank notes, and fifteen dollars in gold coin." In deciding the case, the court stated that "a minute description of all the treasury and bank notes might be impossible and therefore is not required, but a nearer approach to it than this indictment makes may be presumed to have been easy and ought to have been required." (Rhodus v. Commonwealth, 2 Duv. 159.)

An indictment which described the property as "sundry pieces of silver coin made current by law, usage and custom within the state of Alabama, amounting together to the sum of $ 530.15," was held not to describe the money with sufficient precision, and it was said that the number and denomination of the coin should have been stated. (The State v. Murphy, 6 Ala. 845.) In Stewart v Commonwealth, 4 Serge. & Rawle 194, the indictment charged the larceny of sundry promissory notes amounting to the sum of $ 80, and the judgment of conviction was reversed because of an insufficient description. In The State v. Longbottoms, 11 Hum. 39, the...

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9 cases
  • State v. Lucas, 48227
    • United States
    • United States State Supreme Court of Kansas
    • December 11, 1976
    ...cases where the court required a high degree of precision in the description of the money that was taken in a robbery. (State v. Tilney, 38 Kan. 714, 17 P. 606; State v. Ready, 44 Kan. 697, 26 P. 58; State v. Collins, 79 Kan. 411, 99 P. 817; State v. Ferron, 122 Kan. 845, 253 P. 402; State ......
  • Sullivan v. State
    • United States
    • United States State Supreme Court of Florida
    • March 11, 1902
    ......State, 35 Ohio St. 81;. State v. Segermond, 40 Kan. 107, 19 P. 370, 10 Am. St. Rep. 169; Merwin v. People, 26 Mich. 298, 12 Am. Rep. 314; Leonard v. State, 115 Ala. 80, 22 So. 564;. Merrill v. State, 45 Miss. 651; Dukes v. State, 22 Tex.App. 192, 2 S.W. 590; State v. Tilney, 38 Kan. 714, 17 P. 606; Territory v. Shipley, 4 Mont. 468, 2 P. 313. . . The. court erred in denying the motion in arrest for the reasons. stated, and the judgment of conviction will be reversed, with. directions to the court below to arrest the ......
  • Keating v. People
    • United States
    • Supreme Court of Illinois
    • March 28, 1896
    ...and has not been recovered, the owner will generally be unable to specify with legal certainty the bills and coins taken.’ State v. Tilney, 38 Kan. 714, 17 Pac. 606. See, also, State v. Henry, 24 Kan. 457; State v. Anderson, 25 Minn. 66;Hickey v. State, 23 Ind. 21; Burton v. Brooks, 25 Ark.......
  • State v. Segermond
    • United States
    • United States State Supreme Court of Kansas
    • October 6, 1888
    ...... show such acquittal, if again charged with the same offense. And this practice does not leave it to conjecture alone to. determine whether such charge be identical with some former. one, on which an acquittal has been had, but it must be. specific to be available. (The State v. Tilney, 38. Kan. 714.). . . In the. case of The State v. Longbottoms, 11 Hum. 39, the indictment for larceny charged the defendant with. having stolen "ten dollars good and lawful money of the. state of Tennessee," and it was held that this was not a. sufficient description of the thing ......
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