State v. Toelkes

• Decision Date: 09 June 1934
• Docket Number: 31412.
• Citation: 33 P.2d 317,139 Kan. 682
• Parties: STATE v. TOELKES.
• Court: Kansas Supreme Court

33 P.2d 317

139 Kan. 682

STATE v. TOELKES.

No. 31412.

Supreme Court of Kansas

June 9, 1934

Syllabus by the Court.

Felonies and misdemeanors, and different felonies of like nature, may be joined in same indictment in separate counts where they are kindred in nature.

Counts of information charging violations of liquor laws, some charging felony, and others charging misdemeanors in separate counts, all of them being of same general character requiring same mode of trial and same kind of evidence, held not improper (Rev. St. 1923, 62--1023).

Judgment of conviction will be reversed only for prejudicial error (Rev. St. 1923, 62--1718).

Erroneous instruction as to limitation of time for prosecution of offense does not warrant reversal of conviction, where only evidence in record related to violations on particular day well within statutory limitation (Rev. St. 1923, 62--1718).

1. Counts of an information charging violations of the prohibitory liquor law, some of which charged defendant with a felony, and others charged what constitutes misdemeanors in separate counts, all of them being of the same general character, requiring the same mode of trial, the same kind of evidence, and the same kind of punishment, may be charged and tried together at one and the same time.

2. An error of the trial court in an instruction as to a limitation of time for prosecution of the offenses does not require a reversal of the judgment, where it appears that the only evidence in the record related to violations on a single day well within the statutory limitation, and was therefore without prejudice to the defendant. Only prejudicial error justifies a reversal of the judgment.

3. Other complaints and criticisms of the instructions considered and are not sustained.

Appeal from District Court, Rooks County; W. B. Ham, Judge.

Phillip Toelkes was convicted of a violation of the liquor laws, and he appeals.

Judgment affirmed.

O. O Osborn, of Stockton, and W. L. Sayers, of Hill City, for appellant.

Roland Boynton, Atty. Gen., and D. A. Hindman, Co. Atty., of Stockton, for the State.

JOHNSTON Chief Justice.

Phillip Toelkes was charged with and convicted of having in his possession intoxicating liquors on May 5, 1932. A second count alleged that he had been previously convicted in Rooks county of violating the prohibitory laws of the state, and that he permitted another to have, keep, and maintain intoxicating liquors for personal use and otherwise, upon his premises, describing them. On these two counts a preliminary examination was had on May 18, 1932. Later when an information was filed containing the two counts mentioned the county attorney included four additional misdemeanor counts, all of violation of the prohibitory liquor laws. He was convicted on the first count and acquitted on the other counts mentioned in the information. He appeals and assigns as error the permission to join counts 3, 4, 5, and 6, charging misdemeanors only.

A motion to quash the information and to strike from it counts 3, 4, 5, and 6 was overruled. A plea in abatement was filed as to each of these counts from 3 to 6, inclusive, and it was overruled. While the defendant was acquitted on these counts the complaint is that he was prejudiced by having to defend his conduct from the possession of intoxicating liquors on May 5, 1932, and was only required to defend himself for a period of two years from that date, and that he was prejudiced because it enabled the prosecution to prove offenses that could not otherwise have been proved or brought into the case.

There was no motion made to require the plaintiff to elect and no election was made. Of course there was no preliminary examination on the last four counts charging misdemeanors, and besides there was an acquittal on these.

Was error committed in joining the four counts charging misdemeanors with the two earlier counts which ranked as felonies? All of the offenses charged were violations of the prohibitory liquor law. They were kindred in character, required the same mode of trial, and the joinder did not necessarily result in any embarrassment to the defendant. The count on which the defendant was convicted charged the unlawful possession of the liquor and it charged that he was guilty of persistent violation of that law, to which a penalty is fixed, but if the state failed to prove that he was a persistent violator, he would have been punished as for a misdemeanor.

Some offenses are so graded as to constitute both felonies and misdemeanors, and so we have a statute providing that upon the trial of an indictment for a felony, the defendant may be found guilty of a misdemeanor. In larceny cases where the value of the property stolen makes the case a felony or a misdemeanor, one charged with a felony may be found guilty of a misdemeanor and punished therefor, and the same course is permissible in a number of other offenses. We have a statute providing that in prosecution of a party charged with a felony, conviction for a misdemeanor is permissible. It provides that: "Upon the trial of an indictment for a felony, the defendant may be found guilty of any other felony or misdemeanor necessarily included in that with which he is charged in the indictment or information." R. S. 62--1023.

In numerous instances persons charged with assault with intent to kill may be convicted of simple assault.

So far as the joinder of separate offenses in the same information is concerned, the test is: Are the charges of the same general nature and will the joinder deprive the defendant of an advantage in the trial, or are they incongruous and repugnant in character and will operate to deprive the defendant of some legal advantage? We see no reason why felonies and misdemeanors may not be...