37 Kan. 404 | Kan. | 1887
The opinion of the court was delivered by
On May 8, 1886, E. D. Parker was convicted and sentenced to the penitentiary of the state at hard labor for the term of ten years, for attempting to commit the offense of killing his wife, Kate Parker. On November 10, 1886, he died, in the penitentiary. This case is pending in this court as to the liability of his estate for the costs of the prosecution.
The information filed in the case contains two counts, the first averring the attempt to commit the offense of killing Mrs. Kate Parker, and the second the attempt to commit the offense of killing her daughter, Ollie Elenner. Upon the trial, the defendant was found guilty on both counts. Sentence, however, was pronounced against the defendant upon only the first count of the information, and the second count thereof, at the instance of the county attorney, was dismissed.
Upon the trial, Frank Dunn testified on the part of the prosecution in substance that on the 2d day of March, 1886, in Abilene, Dickinson county, the defendant agreed to pay him twenty-four dollars to go to Beloit and fire five shots from a revolver into a window in a house in that city, and that defendant showed him a diagram which located the
Mrs. Kate Parker testified that she was the wife of defendant, and that Ollie Flenner, the girl named in the second count of the information, was her daughter, aged seven years; that she was married to defendant in May, 1885, and lived with him until October of that year, when they separated; that at the time she married defendant she and Ollie had real estate in Beloit, of the value of about seven thousand dollars, which they had inherited from her deceased husband, George Flenner; that while defendant lived with her he wanted to control this property, and that they had trouble about such property a number of times; that defendant charged her with being criminally intimate with Dr. Guibor and other men, and with committing an abortion in his absence; that on the night of March 2, 1886, she and Ollie were sleeping in a bed in front of the window which Dunn said he was to shoot into, and in front of which he did shoot three shots from a revolving pistol given him by Parker.
The contention is, that two distinct felonies were charged in the information, and therefore that the trial court committed errors in not quashing the information or compelling an election thereon. In our view of the case, it is uot necessary to decide whether separate and distinct offenses were charged in the information. It is said, however, in Bishop’s Criminal Practice, volume 1, §437, “that a count in an indictment charging a man with one endeavor to procure the commission of two offenses, is not bad for duplicity, because the endeavor
An information may be nol. pros, after a conviction and before judgment. In this case the second count of the information was nol. pros, by the county attorney before judgment; thereby leaving the defendantpunishable for the offense charged in the first count only. (31 Me. 592; Commonwealth v. Tuck, 20 Pick. 356.)
One argument which lies against duplicity in a criminal pleading is, that it subjects the defendant to inconvenience and danger by requiring him to prepare himself to meet several charges at the same time. Another is, that the prosecution in a criminal case ought not to have the advantage of proving to the jury several acts entirely disconnected with each other, but each tending to prove the defendant guilty of a separate offense, and thereby creating in the minds of a jury the conviction that the accused is a bad man generally and likely to be guilty. Therefore, in a case of felony it is the rule that where the information or indictment charges several entirely distinct felonies, the court will either quash or compel the prosecutor to elect. But in this case, even if two offenses are charged in the information, yet as they spring out of the same transaction, and as the proof on both counts was precisely the same, no injury could possibly have accrued to the defendant. (The People v. McKinney, 10 Mich. 54.) No evidence was admitted to sustain the second count of the information not pertinent to the allegations of the first count. “ On an appeal, the court must give judgment without regard to technical errors or defects, or to exceptions which do not affect the substantial rights of the parties.” (Crim. Codej § 293.)
The defendant was not prejudiced by the refusal of the court to instruct the jury further on the question of venue. . The instructions given sufficiently covered that matter. If the defendant was guilty of the attempt to kill his wife, he committed that offense in Mitchell county. The evidence fully
There are other errors relied upon, but after a careful examination of them, we find nothing prejudicial; therefore, the judgment of the district court will be affirmed.