| Kan. | Jan 15, 1891
The opinion of the court was delivered by
This was a criminal prosecution upon information in which the defendant, Ira M. Hodges, was charged in eight separate counts with the commission of eight separate and distinct embezzlements of property belonging to the State Bank of Irving, a banking corporation, as officer, cashier and secretary of such corporation. A trial was had before the court and a jury, and at the close of the evidence on the part of the state, the prosecution elected to dismiss the prosecution as to the eighth count and to proceed with the trial upon only the other seven counts, as follows: Upon the first six counts, upon the charges therein contained of actual embezzlement; and upon the seventh count, upon the charge of taking, making way with and secreting a certain diamond pin, with the intent to convert the same to the defendant’s own use. And the prosecution also elected to rely for a conviction upon a separate and single transaction, as shown by the evidence for each separate count of the information. At the close of the trial the jury found the defendant guilty upon the first six counts, and not guilty as to the seventh; and the court sentenced the
I. The first alleged ground of error is, that the court below erred in refusing to grant the defendant a continuance. The ground for the continuance was, that the defendant in order to prepare for his defense needed to make an inspection of certain books, records and papers belonging to the State Bank of Irving, which books, records and papers were, and had been for a long time, in the custody of W. W. Armstrong, who was the receiver of said bank; that the defendant had not been able to procure such books, records and papers. The offenses with which the defendant was charged and found guilty, were charged to have been committed, and were, in fact, committed, during the month of November, 1889. When this prosecution was commenced is not shown, but it was probably commenced soon after the time of the alleged commission of the offenses. The information, however, was not filed until May 3,1890, and this application for a continuance was made on May 8, 1890. Now if these books, records and papers should be considered as being in the custody of the prosecution, which they were not, then the defendant’s remedy to ob- ' tain an inspection or copies of them was under § 209 of the criminal code, and §§ 368 and 369 of the civil code. But if they should be considered as being in^he custody of W. W. Armstrong, the receiver, as in fact they were, then the defendant could have procured an inspection or copies of them by merely applying to the court or judge for an order to that effect upon the receiver. And of course the defendant had the power to obtain them as evidence at the trial by merely causing a subpcena duces tecum, to be issued for them. (Civil Code, § 325.) But he took no legal steps to compel the pro-
II. The next ground of alleged error has reference to a supposed error in the information, in charging in one and the same instrument, though in separate counts, several separate and distinct felonies, and in the court’s requiring the defendant to be tried for all of such felonies in one and the same trial. Now there can certainly be no such substantial error in this as will require a reversal of the judgment of the court below, provided, of course, that only one offense is charged in each of the several counts of the information. Several separate and distinct felonies may be charged in separate counts of one and the same information, where all of the offenses charged are of the same general character, requiring the same mode of trial, the same kind of evidence, and the same kind of punishment. (Whar. Cr. Pl. & Pr., § 285, et seq., and eases there cited; 1 Bish. Cr. Proc., 3d ed., §§ 424, 450, 451; 4 Am. & Eng. Encyc. of Law, 754-756; The State v. Bancroft, 22 Kan. 170" court="Kan." date_filed="1879-01-15" href="https://app.midpage.ai/document/state-v-bancroft-7884832?utm_source=webapp" opinion_id="7884832">22 Kas. 170; The State v. Chandler, 31 id. 201; The State v. Goodwin, 33 id. 538; The State v. Fisher, 37 id. 404.) The defendant may be tried upon all the several counts of the information at one and the same time, and in one trial; but all this rests in the souncf judicial discretion of the trial court. In some cases the trial court might, without committing material error, quash such an information; or it might require the state to elect upon which one or more of the several counts it would proceed to trial or rely for a verdict; but we cannot say that in this case the court abused its discretion or committed any material error.
III. The next alleged ground of error is that each count of
“Sec. 121. Upon an indictment for an offense consisting of different degrees, the jury may find the defendant not guilty of the decree charged in the indictment, and guilty of any degree inferior thereto, or an attempt to commit the offense.
“Sec. 122. Upon thp trial of an indictment for a felony,*394 the defendant may be found guilty of any other felony or misdemeanor necessarily included in that with which he is charged in the indictment or information.”
Section 283 of the act relating to crimes and punishments makes an attempt to commit an offense an offense of itself, and so far as it is necessary to quote such section, it reads as follows:
“Sec. 283. Every person who shall attempt to commit an offense prohibited by law, and in such attempt shall do any act toward the commission of such offense, but shall fail in the perpetration thereof, or shall be prevented or intercepted in executing the same, upon conviction thereof, shall, in cases where no provision is made by law for the punishment of such attempt, be punished as follows: ” etc.
And Mr. Wharton in his Precedents of Indictments gives the form of an indictment for embezzlement, which includes, among others, the following words: A. B., the defendant, “fraudulently and feloniously did take, make way with and secrete, and did embezzle and convert to his own use, without the assent of the said C. D., his master and employer, the said ” embezzled property, etc.
See also 1 Bish. Cr. Proc., 3d ed., §§ 436, 443; 4 Am. & Eng. Encyc. of Law, 756; The State v. Lillie, 21 Kan. 728" court="Ark." date_filed="1879-01-15" href="https://app.midpage.ai/document/state-v-lillie-7884798?utm_source=webapp" opinion_id="7884798">21 Kas. 728; The State v. Blakesly, 43 id. 250.
As we understand, it is claimed that the present information is not good, for the reason that each count first charges the crime of actual embezzlement, and then charges a second offense by charging that the defendant made way with the same property and secreted it with the intent to embezzle and convert the same to his own use. This certainly does not render the information bad, for all these charges could have been shown under the single charge of actual embezzlement; for if a person commits the offense of actual embezzlement he must commit all the rest above specified. He cannot commit the offense of actual embezzlement without also attempting and intending to commit such offense; and he cannot commit the offense without also converting the property of his em
IV. The next question presented is with regard to the introduction of evidence. It is claimed that the court below erred in permitting the prosecution to introduce incompetent and irrelevant evidence, to the prejudice of the substantial rights of the defendant; and again, the question is presented whether two or more criminal charges can be included in one and the same information, though in separate counts, and tried upon a single trial. It is claimed that they cannot, for the reason that evidence competent to prove one charge would necessarily be irrelevant and incompetent as to the other charges, and that the introduction of such evidence would be prejudicial to the substantial rights of the defendant. Of course the first part of this claim is generally true, and the last part of the same is sometimes true; but where the last part is true, the court in its discretion will require that a separate trial shall be had upon each separate charge. We do not think that the rights of the defendant were improperly prejudiced in the present case. Undoubtedly the court and the jury understood perfectly well for what purpose each item of the evidence was introduced; and the jury did not use the evidence, introduced to prove one charge, for the purpose of sustaining some other charge. This question, however, was sufficiently considered in the consideration of the question whether charges for separate and distinct felonies could be united in separate counts of one information. There was
"V. The next complaint of the defendant is, that the jury were permitted to separate after the trial and before they had rendered their verdict. The facts were these: The trial was closed just before the adjournment for the day, on May 14, 1890, at eight o’clock in the evening. Before the adjournment, the court instructed the jury that if they should agree upon a verdict before the meeting of the court on the next morning, they might reduce their verdict to writing, inclose it in a sealed envelope and then separate until the meeting of the court the next morning, and then return the verdict into court; and the court also properly admonished the jury with regard to their conduct during the separation. The jury in fact agreed upon a verdict during the night, reduced it to writing, inclosed it in a sealed envelope, then separated, and on the next morning returned it into court, where the envelope was opened and the verdict'read to the jury, and they were asked if that was their verdict, and they answered in the affirmative. No objection to the above was interposed by the defendant or his counsel, although they, as well as the counsel for the state, were present in the court when it all occurred. Certainly no material error, if any error at all, was committed in this. (See Criminal Code, §235; The State v. Muir, 32 Kan. 481" court="Kan." date_filed="1884-07-15" href="https://app.midpage.ai/document/state-v-muir-7886364?utm_source=webapp" opinion_id="7886364">32 Kas. 481; Bishop v. Mugler, 33 id. 145.)
YI. Complaint is also made that the court below erred in rendering a cumulative sentence. The court below sentenced the defendant upon four different charges, set forth in four sep
We think no material error has been committed in this case, and the judgment of the court below will be affirmed.
The facts of the case of The State of Kansas y. A. C. Emmons, from Marshall district court, and the questions of law involved therein, are substantially the same as those in the case of The State v. Hodges, just decided, and this case will be decided upon the authority of that case. Judgment affirmed.