117 Kan. 124 | Kan. | 1924
The opinion, of the court was delivered by
Appellant was charged in an information containing four counts. The first count charged appellant and Martin Sanders with robbery from the person by putting in fear; the second charged appellant and Sanders with grand larceny; the third charged appellant with being an accessory after the fact of a robbery from the person committed by Sanders; and the fourth charged appellant with being an accessory after the fact of grand larceny committed by Sanders. Appellant was found guilty on the third count and appealed, and contends that his motion to quash the information for misjoinder and his motion to require the state to elect upon which count it would proceed to trial should have been sustained, that improper evidence was admitted and that the evidence is not sufficient to sustain the verdict.
On March 1, 1923, appellant and others were engaged in an out
The next day after the robbery Sanders was anxious to know whether or not he was likely to be arrested in Kansas. Appellant drove up to the county seat of Chautauqua county, made inquiries, and found a warrant was issued for Sanders; went back to Oklahoma and advised Sanders of that fact. Sanders concluded it was not safe for him to be staying around too close and that he had better get farther away to avoid arrest and prosecution, and at his request, appellant took his car and drove Sanders through Chautauqua county to the station of Hoosier in Cowley county, where Sanders could catch a train and get out of the country. Sanders was later apprehended, pleaded guilty and was sentenced, so at the time of the trial appellant alone stood charged by the information.
Appellant filed a motion to quash the information “for the reason that there is improperly joined in said information separate and distinct felonies.” There was also a motion to require the state to elect upon which count it would proceed to trial. These motions were overruled and appellant complains - of that ruling. The offense defined by R. S. 21-106, of having concealed any offender after the commission of any felony, or of having given to such offender any other aid, knowing that he has committed a
But this reasoning seems not to be sound. In 2 Hawkins’ Pleas of the Crown, ch. 29, § 47, it is said:
“It seems to be settled at this day, that if the principal and accessory appear together, and the principal plead the general issue, the accessory shall be put to plead also; and that if he likewise plead the general issue, both may be tried by one inquest.”
And in the note it is stated:
“Where the principal and accessory are tried by the same inquest, the accessory may enter into the full defense of the principal, and avail himself of eveiy matter of fact, and of every point of law tending to his acquittal. . . (M’Daniel’s Case, Foster, 121, 10 State Trials, 417.”
In Rex v. Blackson, 8 C. & P. 43, it was held that a defendant may be charged as an accessory before the fact in one count, and as accessory after the fact in another count, to the same felony, without putting the prosecutor to his election, and may be convicted' on both counts.
To the same effect is Rex v. Mitchel, 6 St. Tr., n. s., 599, 620, 621.
In Rex v. Brannon, 14 Cox 394, it was said that where the defendant was charged as principal in one count, and as accessory after the fact in another count, to the same felony, the prosecution was compelled to elect upon which count they would proceed.
But this decision was criticised in Rex v. Tuffin, 19 Times, L. R. 640, where it was held upon a similar indictment that the decision of Rex v. Blackson should be preferred to that in Rex v. Brannon.
In Archbold’s Criminal Pleading, 24th ed., 1452, is given the form of the indictment used in English practice where one person is charged with the principal offense and others are-charged as accessory after the fact in the same count, as follows:
*127 “[After stating the offense of the principal, and immediately before the conclusion of the indictment, charge the accesory after the fact thus:] And the jurors aforesaid, upon their oath aforesaid, do further present, that J. W. [X. Y. and A. B.] well knowing the said J. S. to have done and committed the said felony in form aforesaid, afterwards, to wit, ori the day and year aforesaid, him the same J. S. did feloniously receive, harbour and maintain; against the form, etc.”
In Bulloch v. State, 10 Ga. 47, it was held:
“The principal offender and accessories after the fact may be properly included in the general count in the indictment, and when so charged in the manner prescribed by the penal code of this state the charge against the principal and the charge against the accessories will not be considered as separate and distinct counts, but the accusation against all will be considered as embraced in one count.” (Syl. ff 6.)
In State v. Barbage, 51 S. C. 284, it was held:
“One count in an indictment charging the defendant with murder, and another count charging him as accessory after the fact, are not misjoinders nor are they repugnant.” (Syl. H 2.)
In Tully v. Commonwealth, 74 Ky. 154, 157, in speaking of an accessory after the fact at common law, it was said:
“The mode of proceeding was to indict the principal and accessory jointly, and unless proceeded against in this manner no indictment could be maintained against accessory until the principal had been tried and convicted.”
In Bishop v. The State, 118 Ga. 799, it was held:
“Principals in the first and second degree and accessories before and after the fact may all be joined in the same count.” (Syl. ¶ 5.)
To charge a principal in one count and accessory after the fact in another appears to be a common practice. (State v. Neddo, 92 Maine 71; State v. Butler, 17 Vt. 145, 150; Blakely v. State, 24 Tex. App. 616.)
- The accessory after the fact may, of course, be charged in a separate information (State v. King, 88 Minn. 175), and in this state may be tried whether the principal has been tried or charged. (R. S. 62-1017.)
In view of the above authorities we decline to follow State v. Christian, 253 Mo. 382.
A question very closely akin to the one here presented, though not exactly the same, was decided by this court in The State v. Blakesley, 43 Kan. 250, 23 Pac. 570, where it was held:
“Counts for grand larceny, and for unlawfully and feloniously receiving the stolen property described in the count for larceny, may be properly joined in the same information or indictment.”
Appellant complains of the admission of evidence. After he was arrested he made a written statement reciting the manner in which the robbery occurred, and somewhat in detail what he and Sanders did the two or three days following the robbery, most of which occurred in Oklahoma. Appellant’s contention is that the part of the statement describing what took place in Oklahoma was incompetent for the reason that appellant could not be prosecuted for what took place in another state. There is no merit in this contention. Appellant was not convicted for what took place in Oklahoma. What took place in Kansas was ample to justify his conviction. He came to Kansas to ascertain whether or not a warrant had been issued for Sanders and went back to advise him what had been learned. More than that, he took Sanders to the train to enable him to get out of the country to escape arrest and prosecution, and in doing so brought him through Chautauqua county, Kansas. What he did in Kansas to conceal and aid the escape of Sanders is the thing for which he was tried and convicted. The evidence concerning what they did in Oklahoma was competent to show the intent and purpose of the acts which were done in Kansas. Lastly, appellant argues that the evidence was not sufficient to sustain a conviction. From what has been heretofore said, there is no merit in this contention.
The judgment of the court will be affirmed.