53 Kan. 657 | Kan. | 1894
The opinion of the court was delivered by
A motion to quash should precede arraignment. (The State v. Otey, 7 Kas. 69; The State v. Ruth, 21 id. 583; 4 Am. & Eug. Encyc. of Law, 764.) The proper time to raise the question of the sufficiency of an information or indictment before a verdict is by a motion to quash; after verdict, by motion in arrest of judgment. It is not good practice to raise an objection to an information by objecting to the introduction of testimony. The question of the jurisdiction of the court may be presented at any time. (The State v. Ashe, 44 Kas. 84, and cases cited.) If a person, when arraigned, refuses to plead or answer, a plea of not guilty must be entered, and the same proceedings are then had in all respects as if he had formally pleaded not guilty. (Crim. Proc., § 161.) If the information was defective, the trial court ought to have permitted it to be amended. (Crim. Proc., § 72.) It would not have prejudiced the rights of the defendant to have stricken out “to maim” or “to kill,” as the prosecution might have elected. The general rule is, that duplicity in criminal cases cannot be made the subject of a motion in arrest of the judg
It is allowable to state in the same count of an information or indictment the successive gradations of statutory offenses conjunctively, when they are not repugnant. It is observed by Wharton that, where a statute makes two or more distinct acts connected with the same transaction indictable, each one of which may be considered as representing a phase in the same offense, it has been ruled that they may be coupled in one count. (Whar. Cr. Pl., §251; Commonwealth, v. Miller, 117 Pa. St. 276; Wingard v. The State, 13 Ga. 396.)
The judgment of the'district court will be reversed, and the ease remanded for further proceedings, in accordance with the views herein expressed. (In re Scrafford, 21 Kas. 735; The State v. Ashe, supra.)