State v. Tucker
| Decision Date | 12 January 1924 |
| Docket Number | 25,087 |
| Citation | 222 P. 96,115 Kan. 203 |
| Parties | THE STATE OF KANSAS, Appellee, v. JAMES M. TUCKER, Appellant |
| Court | Kansas Supreme Court |
Decided January, 1924.
Appeal from Chautauqua district court; ALLISON T. AYRES, judge.
Judgment affirmed.
SYLLABUS BY THE COURT.
1. CRIMINAL LAW -- Robbery -- Preliminary Examination Waived -- Plea in Abatement. Where an information charges but one offense of robbery in the first degree, and it was merely an elaboration of the charge contained in the original complaint and warrant, and the defendant waived his preliminary examination thereon, the defendant's plea in abatement on account of variance and because he was given no preliminary examination was properly overruled.
2. SAME--Transcript from Examining Magistrate Sufficient. When the transcript of the examining magistrate is sufficient to inform the district court as to what proceedings had transpired before him, it is sufficient; and the defendant's objection thereto may properly be overruled.
3. SAME--Evidence--Demurrer Properly Overruled. The evidence to prove the defendant's guilt of the crime of robbery in the first degree was sufficient to require its submission to a jury and defendant's demurrer thereto was properly overruled.
4. SAME--Instructions. The instructions examined and no error discerned therein.
J. E Brooks, R. O. Robbins, both of Sedan, and H. S. Hines, of Arkansas City, for the appellant.
Charles B. Griffith, attorney-general, John F. Rhodes, assistant attorney-general, and Ralph R. Rader, county attorney, for the appellee.
The defendant was convicted of robbery in the first degree, and appeals.
He first assigns error in overruling his plea in abatement which was based on an alleged variance between the complaint and warrant and the information, and because he had been given no preliminary examination on the charge contained in the information.
The complaint and warrant charged that defendant with willful assault on the person of J. A. Hoel took from him against his will, and by violence to his person, certain coins and bills, lawful money, with felonious intent to rob, etc.
The information was simply a formal elaboration of the recitals of the complaint and warrant. In describing the property taken from Hoel, mention was made of certain bank checks not included in the original complaint; but the defendant was informed against and prosecuted on but one count--the single offense of first degree robbery, which was the identical crime charged in the complaint. It was immaterial to the charge of first degree robbery whether the victim was robbed of ten cents or ten thousand dollars' worth of gold silver, and diamonds. (Crimes Act, § 116.) If the information had contained two counts, one charging defendant with robbery of Hoel's coins and currency, and another charging him with the robbery of Hoel's bank checks, and neither the complaint and warrant nor the evidence presented at the preliminary examination had given any intimation of defendant's forcible taking of the checks, it might be held that the information contained an added offense on which he had not been given a preliminary examination. (The State v. Fields, 70 Kan. 391, 78 P. 833.) But against a plea in abatement because of an insufficient preliminary examination, it is enough if the defendant has been given a fair opportunity to know, by a proffered preliminary examination, the general character and outlines of the crime charged against him, and it is not necessary that all the details and technical averments which by the tradition of pleaders is deemed requisite to be included in a formal indictment or information, should be set down in the original complaint and warrant which are the basis of...
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State v. Jones, 44964
...known to him at the time he sought the continuance. Under such circumstances the right to plead in abatement was waived. (State v. Tucker, 115 Kan. 203, 222 P. 96; State v. Bland, 120 Kan. 754, 755, 244 P. 860; State v. McCarther, 196 Kan. 665, 414 P.2d 59.) See, also, State v. Pittman, 199......
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State v. Addington
...known to him at the time he sought the continuance. Under such circumstances the right to plead in abatement was waived. (State v. Tucker, 115 Kan. 203, 222 P. 96; State v. Bland, 120 Kan. 754, 755, 244 P. 860; State v. McCarther, 196 Kan. 665, 414 P.2d 59.) See, also, State v. Pittman, 199......
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Scoggins v. State
...as the thing taken is property. (State v. Howard, 19 Kan. 507; In re Wheatley, Petitioner, 114 Kan. 747, 748, 220 P. 213; State v. Tucker, 115 Kan. 203, 204, 222 P. 96.) For his fourth point the petitioner asserts he was denied equal protection of the law by reason of the discriminatory app......
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State v. Gomez
...is the taking from the person or presence of the victim by threat of bodily harm or by force. Justice Dawson, in The State v. Tucker, 115 Kan. 203, 222 P. 96 (1924), observed "It was immaterial to the charge of first degree robbery whether the victim was robbed of ten cents or ten thousand ......