90 Kan. 438 | Kan. | 1913
The' opinion of the court was delivered by
Harry J. Taylor and William F. Richards were convicted upon a charge of concealing mortgaged personal property, and appeal.
The statute under which the defendants were prosecuted reads:
“Any mortgagor of personal property or any other person who shall injure, destroy or conceal any mortgaged property, or any part thereof, with intent to defraud the mortgagee, his executors, administrators, personal representatives, or assigns, or shall sell or dispose of the same without the written consent of the mortgagee or his executors, administrators, personal representatives or assigns, shall be deemed guilty of larceny.” (Laws 1911, ch. 226, § 1.)
The defendants urge that a motion to quash should have been sustained on the ground of duplicity, because the information charged two distinct offenses — (1) concealing the cattle with the intent to defraud the mortgagee, and (2) selling and disposing of the cattle without the written consent of the mortgagee. It has been held that the sale of mortgaged chattels without .written consent is not a violation of the' statute unless fraud is intended. (The State v. Miller, 74 Kan. 667, 87 Pac. 723.) A sufficient answer to this objection is found in the rule which has been thus stated:
“It is a well-settled rule of criminal pleading that when an offense against a criminal statute may be committed in one or more of several ways, the indictment may, in a single count, charge its commission in any or all of the ways specified in the statute. So where a penal statute mentions several acts disjunctively and prescribes that each shall constitute the same offense and be subject to the same punishment, an indictment may charge any or all of such acts conjunctively as .constituting a single offense. Or, as the same rule is frequently stated, where a statute makes either of two or more distinct acts connected with the same general offense and subject to the same measure and kind of punishment,, indictable separately and as distinct crimes when each shall have been committed by different persons and at different times, they may, when committed by the same person and at the same time, be coupled in one count as together constituting but one offense.” (22 Cyc. 380.)
In the latter form the rule has been frequently announced by this court, the cases being cited in a note to the, text quoted. The rule was applied in a case aris
The information is also objected to as not being sufficiently definite. It is urged that it should have alleged to whom the cattle were sold or disposed of, and how they were concealed. The defendants were convicted only of concealing the cattle, and any defects in charging the sale and other disposition are unimportant. The language of the statute was substantially followed, and we think no prejudice resulted from the want of a more detailed statement with regard to the concealment.
The defendants maintain also that the information should have been quashed on the ground that the statute is void because unintelligible. The penalty is thus defined, the phrase giving rise to the objection being italicised:
“For selling, injuring, destroying, concealing or disposing of such property of the value of twenty dollars and under, on which the mortgagee has a lien, or of the value of over twenty dollars, on which the mortgagee has a lien of not more than twenty dollars, such person shall be deemed guilty of petit larceny, and on conviction shall be punished by imprisonment in the county jail not exceeding one year, or by fine not exceeding one hundred dollars, or by both such fine and imprisonment; for selling, injuring, destroying, concealing or disposing of such property of the value of twenty dollars and over, on which the mortgagee has a lien to the amount of twenty dollars,' such person shall be deemed guilty of grand larceny, and on conviction, shall be punished by confinement and hard labor not exceeding five years. (Laws 1911, ch. 226, § 1.)
The statute, after declaring it to be petit larceny fraudulently to dispose of mortgaged property which is worth twenty dollars or less, or on which the lien
At the conclusion of the state’s evidence the defendants moved that the plaintiff be required to elect as to which offense it would rely upon — that of concealing mortgaged property, or that of selling and disposing of mortgaged property without the written consent of the owner. The motion was overruled. If there was any error in this it was cured by the instruction to the effect that a conviction could only be had upon the charge of concealment, and by the fact that the defendants were convicted only on that charge. (The State v. Bussey, 58 Kan. 679, 50 Pac. 891; The State v. Schaben, 69 Kan. 421, 76 Pac. 823.)
The refusal of the court to give several instructions requested is complained of. We think the general charge sufficiéntly covered, the matters to which they referred.
It is vigorously urged that the conviction was not warranted by the evidence. The court instructed the jury, in substance, that the word “conceal” as used in the information included the intentional handling or shifting of the property in such a manner as to mislead or confuse the mortgagee in its efforts to find it. This instruction is not specifically attacked and is sustained by the authorities. (Clement v. Dudley, 42 N. H. 367; The State v. Julien, 48 Iowa, 445; State v. Ward, 49 Conn. 429; Polk v. The State, 60 Tex. Crim. Rep. 150, 131 S. W. 580.)
The facts as to which there is no substantial dispute include the following: Taylor owned about twenty-five head of cattle which were mortgaged to the Bank of Tescott for $1000. With the consent of the bank Taylor, on October 8, 1911, removed them from the place where they had been kept, in Ottawa county, to a pasture in Saline county which was controlled by Richards. The next day they were taken by Richards to a pasture of his own. Taylor then obtained permission from W. F. O’Brien to place them iñ a pasture belonging to
The contention of the state is that at least a part of the mortgaged cattle were included in the bunch shipped by Richards. The1 defendants maintain that there is no evidence whatever to this effect. No particular animals covered by the mortgage were so described as to be thereby identified with any of those shipped by Richards. The case of the prosecution depends upon circumstantial evidence’justifying the inference that the mortgaged cattle, or a part of them, instead of having been turned into the O’Brien pasture, were driven to the railroad by Richards. As supporting this theory the state relies upon evidence tending to show these facts: Shortly before the cattle were removed from Ottawa county Richards told F. M. Weed that he was going to drive off Taylor’s cattle and ship them, and that he would get a good slice of money for doing the job. Weed told this to Samuel Christian, who helped Richards drive to the railroad the cattle that he shipped. Christian told Richards what Weed had said, and Richards responded by saying there was no danger of Christian getting into any trouble — that Taylor had everything fixed up so there would be no danger of any one getting into trouble. On the road they passed the house of a neighbor, who came out and spoke with them. Richards afterward told Christian that he would rather
We think this evidence was sufficient to take the case to the jury and to sustain the conviction. .
The jury found Taylor guilty of concealing mortgaged property worth five hundred dollars, and Richards guilty of concealing property worth two hundred and fifty dollars. The contention is made that the verdicts are inconsistent. But, as suggested in the plaintiff’s brief, the jury may have been convinced that Taylor concealed the entire herd of cattle, while entertaining some doubt whether more than half of them were included in the Richards shipment.
The judgment is affirmed.