State v. Spencer

43 Kan. 114 | Kan. | 1890

The opinion of the court was delivered by

Horton, C. J.:

The defendant in the court below presented a motion to quash and set aside the information. This motion was sustained; and thereupon the state asked leave to amend the information, which request was denied. No brief has been filed upon the part of the defendant, nor any appearance made by him in this court, and therefore it is impossible to determine from the record the grounds upon which the district court acted. We have examined the information, and it seems to us sufficient. Our attention is not called to any alleged defects. If it were defective, the application to amend should have been granted. Section 72 of the criminal code provides that—

“An information may be amended in matter of substance or form at any time before the defendant pleads, without leave. The information may be amended on the trial as to all matters of form, at the discretion of the court, when the same can be done without prejudice to the rights of the defendant. No amendment shall cause any delay of the trial, unless for good cause shown by affidavit.”

The information was evidently drawn under § 88 of the crimesaet, Comp. Laws of 1885, p. 335. The venue is properly laid. The full given name of the defendant is not stated; but the reason for this omission is given, and is sufficient. The offense is alleged to have been committed within the time fixed by the statute of limitations for the commencement of the action, and in the county and state within which the offense was triable. The defendant is alleged to have been the agent, employé, bailee, and trustee of an express trust of a certain corporation therein named. It is stated that under and by virtue of his appointment as such agent, employé, bailee, and trustee of the corporation, he had in his possession and under his care a large amount of the property of the corporation. This property is particularly described and set out. Its value is stated to be $4,949.37. It is further alleged that the defendant feloniously took, embezzled and converted to his own use this property, which had come into his possession by virtue of his being the said agent, employé, bailee, and trustee of an express trust of the corporation.

The second count of the information is like the first, with the exception that it is therein charged that the defendant feloniously took, made way with, and secreted the said property' with the intent to embezzle and convert the same to his own use. Under the authority of The State v. Lillie, 21 Kas. 728, it was proper to charge the defendant with embezzling certain property received by him as agent, employé, bailee, and trustee of the corporation.

If the motion to quash the information be considered in the nature of a plea in abatement upon the ground of no proper preliminary examination having been had, the point is not tenable. In The State v. Spaulding, 24 Kas. 1, the syllabus reads:

“A preliminary examination was had upon a complaint charging defendant with the embezzlement, as city clerk, of certain moneys of the city of Leavenworth. Afterward an information was filed containing several counts, each charging the embezzlement of the same moneys at the same time, and as the property of the same party, but differing in this, that one charged him with embezzling as clerk, another as agent, another as servant, and so on. Held, That a special plea that defendant had had no preliminary examination, except upon the charge of embezzling as clerk, and that therefore all the other counts should be stricken out, was properly overruled.”

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

All the Justices concurring.