24 Kan. 457 | Kan. | 1880
In this case the defendant was charged by information with stealing “ national bank currency and United States treasury notes of the amount and value of one hundred and sixty-four dollars.” No motion was made to quash the information, and no plea in abatement was interposed, but, on the contrary, the defendant pleaded to the merits, “not guilty,” and went to trial before a jury upon the 'merits of the action. The jury, upon the evidence introduced and after due deliberation, found “the defendant guilty as charged in the information,” and found and assessed “ the value of the property stolen at the sum of one hundred and sixty-four dollars.” After this verdict was rendered, the defendant moved in arrest of judgment, “for the reason that the facts stated in said information do not constitute a public .offense,” and also moved for a new trial for the following reasons:
. “First, The verdict of the jury is not sustained by sufficient evidence.
“Second, The verdict is contrary to law.
“ Third, The court erred in giving instructions numbered 1, 2, 3, 4, 5, 6, 7, 8, 9, and 10, to the jury, and in giving each of said instructions.”
The court overruled both of these motions and rendered judgment against the defendant, sentencing him to imprisonment in the penitentiary for the term of four years. The defendant now appeals to this court, and claims that the court below erred in overruling said motions and in rendering said judgment.
I. Did the court below err in overruling the motion in arrest of judgment? — or, in other words, was the information fatally defective in not stating facts ■ sufficient to constitute a cause of action? 'We must answer these questions in the negative; for while the facts are stated in very general and indefinite language,' yet sufficient facts are stated, and stated sufficiently definitely to show beyond all question that a public
II. The overruling of the motion for a new trial presents a more difficult question. This question, however, really involves two questions: 1. Did the court below err to the pre
“The possession of property, proven to have been recently stolen, is evidence from which the jury may infer that the person in whose possession such property is found is guilty of the theft, provided that such possession is not explained; and so, when a certain amount of property is proven to have been stolen at the same time, and soon thereafter a portion of such stolen property is found in possession of the defendant, such possession, if unexplained, is evidence from which the jury may infer that the defendant- is guilty of the larceny of the entire amount of property then proven to have been stolen.”
Counsel for defendant refer us to the following Massachusetts decisions, for the purpose of showing that the court below erred in instructing the jury that they might find the defendant guilty if they found him guilty of stealing “national bank currency and United States treasury notes, or either.” (Hope v. Com., 50 Mass. [9 Metc.] 134; Com. v. Cahill, 94 Mass. [12 Allen] 540; Com. v. Lavery, [101 Mass.] 207.) These Massachusetts cases in effect hold that where an indictment alleges the stealing of two or more articles of different kinds, and gives only the aggregate value of such articles, and the verdict of the jury shows the stealing of only a portion of such articles, such verdict can not authorize or uphold any sentence or punishment of the defendant. And the grounds upon which these decisions were made seem to be as follows: Before any person can be sentenced or punished for a crime, it is necessary that both a grand jury and a petit jury should concur in finding that the defendant stole the same identical article, and that such article had some actual value; and the court then reasons, that if the grand jury should find that the defendant stole several articles, giving only their aggregate value, and the petit jury should afterward find that the defendant stole only a portion of such articles, it might be that the petit jury would thus
We do not think that the court below erred in. instructing the jury that they might find the' defendant guilty if they found that he stole “ national bank currency and United States treasury notes, or either;” and, under the circumstances of this case,' we do not think that the supposed error was material, even if the court did err.
The other.instruction above quoted we think is correct.
Finding no material error in any of the rulings of the court below, its judgment will be affirmed.