48 Kan. 364 | Kan. | 1892
The opinion of the court was delivered by
John Stoffel was prosecuted upon a charge of robbery, and convicted of grand larceny. He appeals, and his first ground of error is that the original complaint filed before the magistrate charged him with stealing the animal “lawfully” instead of “unlawfully;” and hence he urges that no crime was committed, and no reason exists for his arrest or prosecution. The word “lawfully” is the one used in the record, but, from the other terms employed in describing the offense, it would appear that this defect was a clerical error. However, it is unimportant now, as the warrant was the basis of the preliminary examination, and not the complaint. It served its purpose when the arrest of the defendant was accomplished, and if he desired to challenge its sufficiency, he should have done so by a motion to quash the warrant. (Redmond v. The State, 12 Kas. 172; The State v. Reedy, 44 id. 190.)
An objection is made to the verification of the information. It was verified upon the knowledge and belief «of the county attorney. This is a substantial compliance with the- requirements of the criminal code. (Gen. Stat. of 1889, ¶ 5131; The State v. Montgomery, 8 Kas. 351; The State v. Nulf, 15 id. 404.)
It is contended in argument that the court erred in overruling a plea in abatement. It is claimed that this plea raised
It is contended that the defendant was tried for an offense not charged in the information. It charges —
“That on the 5th day of March, A. D. 1890, in the county of Grant and state of Kansas, one John Stoffel did then and there unlawfully, feloniously, forcibly, and violently, from the person and in the presence of one Karl Gall, then and there being, by putting him in fear of injury to his person and property, steal, take and carry away from the person and in the presence of the said Karl Gall one medium-sized black mare, three years old, of the value of $100, in the possession and in the control of the said Karl Gall, property belonging to Karl Gall, jr., and against the will of the said Karl Gall, and from the premises, person and presence of the said Karl Gall, with the intent feloniously to steal, take and carry said mare away, suffered by the said Karl Gall to be taken and carried away through fear of great injury and harm to the person and property of said Karl Gall, and to the persons of the members of his family, threatened to be inflicted by the said John Stoffel, at divers times prior to and at the time of the taking of said mare by the said John Stoffel, with the felonious intent of him, the said John Stoffel, in so doing, him, the said Karl Gall, then and there to rob,” etc.
The case was tried upon the theory that the offense charged was robbery in the second degree, and ■ the court instructed the jury that the defendant was charged with a violation of § 74 of the crimes act, which reads:
“ Every person who shall be convicted of feloniously taking the personal property of another, in his presence or from his person, which shall have been delivered or suffered to be taken through fear of some injury to his person or property, or to the person of any relative or member of his family, threatened to be inflicted at some different time, which fear shall have been*367 produced by the person so receiving or taking such property, shall be adjudged guilty of robbery in the second degree.” (Gen. Stat. of 1889, ¶ 2203.)
In this respect the court erred. It is probable that the charge is sufficient under § 73 of the crimes act to constitute robbery in the first degree, but certainly it does not come within the statutory definition of robbery in the second degree. It will be observed that the information alleges that Gall suffered the property to be taken through fear of injury to himself and to members of his family, “threatened to be inflicted by the said John Stoffel at divers time prior to and at the time of the taking of the said mare.” The phrase used in § 74, “at some different time,” means “at some future different time.” One of the distinguishing characteristics between robbery in the first and second degree is, that in the one case the property is delivered or suffered to be taken through fear of some immediate injury, while in the other it is through fear of injury to be inflicted at some future and different time. This was the interpretation placed by the supreme court of Missouri upon a statute of that state, which is substantially similar to our own. The construction was placed upon the Missouri statute in 1865, and we are inclined to, follow it. ( The State v. Jenkins, 36 Mo. 372; Kelley, Crim. Law, §§ 577, 581.) According to the allegations of the information, the time for the infliction of the threatened injuries had passed. Gall may have been put in fear of immediate injury, but it. cannot be said from the averments of the charge that he suffered the property to be taken through fear of injury to be inflicted at some future time. In view of the fact that the defendant was found guilty of grand larceny only, this error is not of great importance, and may not have been prejudicial to the rights of the defendant.
The most serious complaint of the defendant, and one which must be held fatal, is the action of the court in giving oral instructions to the jury. Several hours after the case had been submitted, the court sent for the jury and learned that they did not fully understand the'law of the case or the
The action of the court was a plain violation of the statute. For good reasons, a court is required in criminal cases to reduce its instructions to writing and file them among the papers of the cause. (Crim. Code, § 236.) This is an imperative requirement, and it has been held that its violation is reversible error. (The State v. Huber, 8 Kas. 447; The State v. Potter, 15 id. 302; City of Atchison v. Jansen, 21 id. 560; Rich v. Lappin, 43 id. 666.)
Other errors are assigned, but in view of the fact that there must be another trial, they do not require attention.
The judgment of the district court will be reversed, and the cause remanded for another trial.
