State v. Goodwin

| Kan. | Jan 15, 1885

The opinion of the court was delivered by

PIojrtoN, C. J.:

After the district court of Cloud county ordered the venue of the information to be corrected, and directed that all the papers and proceedings be certified to the district court of Mitchell county, the clerk of the district court of Cloud county should have made out a full transcript of the record and proceedings in the cause, including the order of removal and the recognizance of appellant, and of all witnesses, and should have transmitted the same, duly certified under the seal of his court, to the district clerk of Mitchell county. There is no certified transcript in the record, and it does not appear that such transcript was either lost or destroyed. After the transcript of the record and proceedings of the case in the district court of Cloud county had been filed with the clerk of the district court of Mitchell county, then the latter court could have proceeded with the case in the same manner, as if it had been commenced there. Although the district court transferred the case under the provisions of § 231 of the criminal code, yet the transcript and proceedings thereafter should have conformed as nearly as possible with the provisions of §§188,189 and 190 of the criminal code.

The information was drawn, we suppose, under § 35 of the act relating to crimes and punishments, which reads:

“Every person who shall take away any female under the age of eighteen years from her father, mother, guardian or other person having legal charge of her person, without their consent, either for the purpose of prostitution or concubinage, shall upon conviction thereof, be punished by confinement and hard labor for the term of not exceeding five years.”

The information charges that the female, Nannie Lawson, was taken away Ur prostitution and concubinage. In the information the',e is a joinder of two distinct felonies in one count. .If , <.he appellant took away the female for the purpose of prostitution, under the circumstances alleged in the information, he would be guilty of one offense; .but if he took he-, away for the purpose of concubinage, but not for prostitu-ción, he would be guilty of another offense. If the appellant took the female away for the purpose of .prostitution, he did so for the purpose of devoting her to infamous purposes, that is, of offering her body to indiscriminate intercourse with men. If he took her away for concubinage only, then his purpose was to cohabit with her in sexual commerce, without the authority of law or a legal marriage. Now two.or more offenses may, under proper circumstances, be joined in one information, but it must be in separate counts. Each count, as a general thing, should embrace one complete statement of a cause of action, and one count should not include distinct offenses — at least, distinct felonies. There are many prominent exceptions to this rule, but as this case is not within the exceptions, they need not be noted. (Wharton’s Crim. PI. and Pr., §§244-254; 1 Bishop on Cr. Pro., §§433-440.)

Again, if the appellant took away the female for the purpose of - prostitution, the jurisdiction of the case was in Mitchell county, where the offense was committed, and also in Cloud county, where the female was brought, (Cr. Code, §25;) but if the female was taken away for the purpose of concubinage only, then the jurisdiction of the case was in Mitchell county, where the offense was committed, and not in Cloud county. The information was attacked by a motion to quash, and also by a motion to compel an election. Both were overruled. This was error, and also error prejudicial to the rights of the appellant. The evidence offered upon the trial tended to prove that the appellant took away the female for the purpose of concubinage only, yet the jury found a verdict that the appellant was guilty as charged in the information; therefore we cannot tell from the verdict whether the jury found the appellant guilty of taking away the female for the purpose of prostitution, or for the purpose of concubinage, or for both. (Wharton’s Crim. PI. and Pr., §255; 1 Bishop on Cr. Pro., §444.)

The rule herein announced does not apply in cases merely of misdemeanors. (The State v. Schwitzer, 27 Kan. 499" court="Kan." date_filed="1882-01-15" href="https://app.midpage.ai/document/state-v-schweiter-7885635?utm_source=webapp" opinion_id="7885635">27 Kas. 499; 1 Chitty on Crim. Law, p. 54.) In offenses inferior to felony, the practice of quashing the indictment, or calling upon the prosecutor to elect upon which charge he shall proceed, does not prevail.

The judgment of the district court will be reversed, and the cause remanded.

VALENTINE, J., concurring. Johnston, J., not sitting in the case.