State v. White

• Decision Date: 09 November 1907
• Docket Number: 15,359
• Parties: THE STATE OF KANSAS v. FRANK WHITE
• Court: Kansas Supreme Court

92 P. 829

76 Kan. 654

THE STATE OF KANSAS v. FRANK WHITE

No. 15,359

Supreme Court of Kansas

November 9, 1907

Decided July, 1907.

Appeal from Barber district court; PRESTON B. GILLETT, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. CRIMINAL LAW--Limitation of Action--Beginning of Prosecution. A prosecution by information for a felony is commenced on the date the warrant which is executed is placed in the hands of the officer for service, and not on the date the information is filed; and upon the hearing of a motion to quash an information which states an offense the prosecution of which is apparently barred the court may examine the prior proceedings to ascertain the time when the action was in fact begun.

2. CRIMINAL LAW--Complaint and Warrant--Waiver of Defects. If upon his arrest for a felony the party charged consents to a continuance, and without objection to the complaint or warrant gives bond to appear at a later date and answer, he waives all defects in the complaint and warrant and thereafter cannot be heard to say they were insufficient to begin a criminal action against him and arrest the running of the statute of limitations.

3. CRIMINAL LAW--Detention for Preliminary Examination--Sufficiency of Complaint and Warrant. A complaint and warrant for a felony which state the date of the offense as "the blank day" or "the $ day" of a month and year named are sufficient to authorize the detention of the party charged until a preliminary examination can be held; and this is true although the prosecution apparently is barred by the statute of limitations.

4. LARCENY--Property Brought into this State--Conflict of Laws. In a prosecution under section 285 of the crimes act (Gen. Stat. 1901, § 2286), providing that every person who shall steal or obtain by robbery the property of another in any other state, territory or country, and shall bring the same into this state, may be convicted and punished for larceny in the same manner as if such property had been feloniously stolen or taken within this state, the question whether the property brought into the state was stolen is to be determined by the law of this state.

5. LARCENY--Changing Brands on Cattle. If a person in another state mark or brand, or alter the mark or brand of any animal the subject of larceny and the property of another, with intent to steal it or to convert it to his own use, so that if the marking, branding or alteration were done in this state he would be guilty of the larceny defined by section 83 of the crimes act (Gen. Stat. 1901, § 2076), and then brings such animal into this state, he may be convicted of the offense denounced by section 285 of the crimes act.

6. LARCENY--Information. In a case of the character just described the offense may be charged in the information as simple larceny.

7. LARCENY--Instructions--Recent and Unexplained Possession of Stolen Property. An instruction regarding the incriminating effect of the recent and unexplained possession of stolen property modeled after the fifth paragraph of the syllabus of the case of The State v. Cassady, 12 Kan. 550, criticized but not condemned.

Fred S. Jackson, attorney-general, and Samuel Griffin, for The State.

Noble & Tincher, and Jackson & Noble, for appellant.

OPINION

BURCH, J.:

On February 16, 1906, a complaint was filed before a justice of the peace charging the appellant with taking, stealing and carrying away two steers, the property of J. M. Hale, on the "blank day of February, 1904." A warrant was issued and immediately executed which stated the offense in the same language as the complaint, except that the date was given as "the day of February, 1904." By agreement of parties further proceedings were postponed until March 1, 1906, and appellant entered into a recognizance to appear before the justice on that day to answer the complaint made against him. On the day fixed a preliminary examination occurred, and appellant was held for trial. On May 14, 1906, an information was filed in the district court charging appellant with larceny of the steers described on February 29, 1904. At the commencement of the preliminary examination the complaint and warrant were attacked by a motion to quash, which was denied; and a motion in the district court to quash the information was denied. Appellant was tried and convicted, a motion in arrest of judgment was denied, and he appeals. The foregoing proceedings furnish the basis for the first assignment of error.

It is argued that the face of the information disclosed the fact that the prosecution was barred by the statute of limitations. It has been decided that the commencement of a criminal proceeding does not date from the filing of the information, but from the issuance of the warrant which is served. The information need not allege the facts relied on to avoid the bar, but the court will look into the prior proceedings and from them ascertain the point at which the running of the statute was arrested. (See The State v. Waterman, 75 Kan. 253, 88 P. 1074, and cases cited in the opinion.)

Appellant says that an examination of the prior proceedings discloses that the complaint and warrant were void because the date of the offense was charged in blank, so that it did not appear but that prosecution was barred. The attack made upon the complaint and warrant came too late. The motion to quash was not filed until the day of the preliminary examination. The complaint and warrant had then spent their force. On February 16 appellant agreed to a continuance, and undertook to respond to the charge made against him. From that time he was held upon his recognizance. Having submitted to the arrest made under the warrant, and having given bond without objection to appear and answer, he waived all defects in the complaint and warrant. (The State v. Bjorkland, 34 Kan. 377, 8 P. 391; The State v. Longton, 35 Kan. 375, 11 P. 163; Junction City v. Keeffe, 40 Kan. 275, 19 P. 735; The State v. Moseli, 49 Kan. 142, 30 P. 189; The State v. Dugan, 52 Kan. 23, 27, 34 P. 409; Topeka v. Kersch, 70 Kan. 840, 79 P. 681, 80 P. 29.) Thereafter he could not be heard to say no proceeding was pending against him, and under the well-known rule he could be bound over for any felony which the preliminary examination disclosed. It makes no difference that he was not apprised of the date of the larceny charged until the preliminary examination. The prosecution nevertheless had been commenced and the running of the statute of limitations had been suspended.

Besides what has been said, the court is unable to agree with appellant upon the merits of his claim. The complaint and warrant were merely indefinite in respect to a matter upon which neither of them need be exact. They charged a larceny in February, 1904. Since under this charge the prosecution might not be barred they were not nullities or even subject to a motion to quash. If they had fixed the date of the crime so that apparently a prosecution would be barred, still they would not be void. It was expressly so held in the case of In re Stewart, 60 Kan. 781, 57 P. 976. The decision is based upon the reiterated doctrine that the chief purpose of a warrant is not notice, but the detention of a person charged with crime until a preliminary examination can be held; that it may merely state the imputed offense by name and be sufficient; that technical accuracy, formal precision and exhaustive detail are not necessary in either the complaint or warrant, and that the party charged receives his notice of the nature of the offense not from the complaint and warrant alone but from all the proceedings, and even then only in its general character and outlines, the full and formal statement being reserved for the information. This being true, no matter how indefinite, defective and irregular the charging part of the complaint and warrant may have been they initiated a prosecution and arrested the running of the statute of limitations.

Appellant lived in Oklahoma. While the steers in question were in the custody of their owner they were kept part of the time in Oklahoma and part of the time in Kansas. Under the evidence they might have been stolen in either jurisdiction. They were sold in Oklahoma by appellant and his partner (with whom he was jointly charged), and were delivered to the purchaser at Kiowa, Kan., on February 29, 1904. Therefore the matter of venue became important. The court instructed the jury as follows:

"In order to convict the defendants, or either of them, of the crime of grand larceny as charged in the information, the burden of proof is upon the state to establish to the satisfaction of the jury, beyond a reasonable doubt, each and all the following material allegations, to wit:

"(1) That the defendants, Frank White and Elmer Williams, or either of them if they were acting in concert, as partners or counseling, aiding and abetting each other in the commission of the crime, did wilfully, unlawfully and feloniously, take, steal and carry away the two steers charged to have been stolen in the information, or either of them, branded with 2 (commonly called 76 connected) on the left hip and with a bar as follows / (commonly called bar) on the left jaw, ear marked with an underbit in each ear.

"(2) That said offense was committed in Barber county, Kansas, or if not committed in Barber county, Kansas, then that the steers, or either of them, the property of James M. Hale having been stolen by the defendants, or either of them, in Oklahoma Territory, were brought by the defendants, or either of them, when acting in concert, as partners, or while counseling, aiding or abetting each other in the commission of the crime, into the state of Kansas; or that the defendants...