McLaughlin v. State

10 Kan. 581 | Kan. | 1873

The opinion of the court was delivered by recognizance. A demurrer to the petition having been overruled, judgment was entered in favor of the state. Three points are presented for our consideration. It is insisted that the bond is void because it does not appear “that the defendant

Brewer, J.:

i. Recognizance; its requisites. The action in the district court was on a was legally in custody charged with a public 0ffense ” if by this is meant that the recognizance does not show this fact, it is unnecessary; if that the petition does not, it is incorrect. All that the recognizance need contain is the penalty, and the condition. It is unnecessary that it recite the antecedent steps in the prosecution. It is enough if those steps were taken, and proper evidence of them preserved in the records of the magistrate, or court. All these are alleged in the petition, and there being no answer are not controverted.

2. Rule for concognizances. Again, it is objected that the condition of the recognizance fails to show that the defendant is charged with a public offense, or prosecuted by the state. It reads “ To answer to the charge of Alonzo F. Dexter for embezzlement and converting to his own use moneys belonging to said A. E. Dexter while in his employ.” The petition shows that Alonzo E.. Dexter was the prosecuting witness, and made the affidavit upon which the defendant was arrested. While it is true, in precise legal language, that the charge is made by the state, yet there is no inaccuracy in the language according to the ordinary understanding. The prosecution is in the name of the state, and conducted by public officers, yet the charge is preferred by the prosecuting witness. To hold this recognizance void on this account would be straining a point even according to the strictness of the common law, and our statute has laid down a much more liberal rule of construction: Criminal code, Gen. Stat., 844, § 154.

„ . , S'própSy’í® junsdiotion. The last point is, that embezzlement may be a misdemeanor or felony according to the amount embezzled, and thus an offense of which the justice has final jurisdiction, or one in which he must bind over to the district court: aud that inasmuch as this recognizance does not fbg vaque 0f the property charged to have been embezzled it fails to show a crime for which the justice had jurisdiction to require a bond. Some cases can be found in the reports of other states where this objection has been held good. But in all of them the strict rule of the common law prevailed. That strictness of construction is, as we have stated, done away with by statute; and under the rule of that statute we are compelled to hold that this point also is not well taken. It may be remarked that - the proceedings anterior to the recognizance, as alleged in the petition, show that the amount charged to have been embezzled was $1,500, thus charging a crime over which a justice would have no final jurisdiction. These being all the objections to the judgment, it must be affirmed.

All the Justices concurring.