93 Kan. 819 | Kan. | 1915
The opinion of the court was delivered by
The appellant and his brother, Arthur Cole, were arrested upon a complaint, sworn to before
When the case was called for hearing before the justice of the peace on October 31, the justice read to the defendants the complaint and warrant, each of which contained the words “in the nighttime,” and the defendants each refused to plead thereto. The justice thereupon entered the plea of “not guilty” for each of them. A motion to quash the complaint was also filed and overruled. The complaint and warrant when issued and served charged a misdemeanor — the stealing of five bronze turkeys. of the value of $7.50, the property of one Frank Draper. The county attorney filed an information in the district court charging the defendants jointly with stealing in the nighttime five bronze turkeys, the property of Frank Draper — a felony.
The appellant was separately tried in the district court, and before the introduction of evidence filed a plea in abatement to the information, which plea set
This error alone, however, does not j ustify a reversal of the case. The justice was guilty of a gross abuse of discretion in permitting or proceeding with a hearing upon a complaint and warrant which had been changed without the issuance of new papers after the complaint had been filed and a warrant issued thereon had been executed. No court, when its attention is' called thereto, should permit its files to be tampered with.
However, the acquiescence of the defendant in the order of the justice, in binding him over to the district court, and in giving the bond required for his appearance in such court, constitutes a waiver of the alleged defects in the complaint and warrant. (The State v. Bjorkland, 34 Kan. 377, 8 Pac. 391; The State v. Longton, 35 Kan. 375, 11 Pac. 163; The State v. Moseli, 49 Kan. 142, 30 Pac. 189; Topeka v. Kersch, 70 Kan. 840, 79 Pac. 681, 80 Pac. 29.)
In The State v. Miller, 87 Kan. 454, 124 Pac. 361, it was said:
“No reason is suggested why the defendant might not have refused to give the recognizance and have brought proceedings in habeas corpus before the probate judge and thus have procured his discharge. Under the well-established rule as stated in the former decisions of this court, he waived all defects in the complaint by procuring his discharge upon the bond.” (p. 456.)
Frank Draper, the complainant and alleged owner of the turkeys, testified to the identity of two turkeys which were at the Cole place on October 23, as his. Five witnesses of the Cole family testified they owned them. As to the time he lost his turkeys, Draper testified :
“Q. You are not positive how long it was before the 22d of October you counted your turkeys, are you? A. Well, I think I counted them on the 21st. I counted them almost every day.
“Q. In your opinion, there would be some days you did n’t count them. A. Very seldom.
“Q. When did you first notice the loss of these turkeys? A. The five?
“Q. Yes, sir. A. Monday, on the 23d, when I was going to dinner.”
That the turkeys were stolen in the nighttime rests upon the evidence of Simmonds and Dustin who testified substantially the same; in substance, that on October 23, 1913, they' went to the Dustin place, past which the defendant had stated that he and his brother had driven on their return from Cedar on the night of October 22; that they measured horse tracks at different places in the road and in an alfalfa field and followed them north one and three-quarters miles and then a mile to the Cole place; there they asked for the spotted pony which was one of the team the accused had said he and his brother had driven from Cedar; that both horses were brought up from the pasture voluntarily by the accused and they measured the tracks made by each horse in dusty ground, made some allowance for the dust falling back over the track, and found them to be the same as the measurements taken at the Dustin place and at several different places where they had measured following the supposed trail;
As a means of identification the footprints of horses or of men, unless there is some peculiarity about them, are very uncertain evidence. The evidence as to the comparison of the horse tracks, simply as a question of size, seems fairly to show a correspondence; but more positively the measurements of the tracks of men tend to show that there was not a correspondence in the tracks at the Draper place, where the turkeys were alleged to have been stolen, and the shoes worn by the accused on the same day at their home. There is no evidence whatever of a change of shoes, and the evidence tends as strongly to show that the tracks made at Draper’s turkey yard were not made by the accused as it tends to show that the tracks of the horses, at Dustin’s and Draper’s and along the way, were made by the horses whose feet and tracks were measured at the Cole place.
In 2 Bishop’s New Criminal Procedure, 2d ed., p. 943, it is said:
“Foot-prints, on a question of identity, if they correspond to those which would be made by the boots probably worn, or the horse probably ridden, are admissible, yet alone are inadequate to justify a conviction.”
There was no showing that Draper or his family were at home or whether they could have discovered a theft of their turkeys during the daytime from the
The evidence is not legally sufficient upon this essential fact, and the judgment is reversed and the case is remanded for a new trial.