In re Schurman

40 Kan. 533

Opinion

The opinion of the court was delivered by

JoiiNSTON, J.:

The imprisonment from which the petitioners seek to be released is alleged to be illegal, on the grounds that the judge of the district court, who acted as magistrate, had no authority to commit them for trial in the district court of Kearney county; that there was no authority to hold a term of court in Kearney county at the term when the information was filed and the warrant issued; and finally, that the information did not charge the petitioners with the commission of a public offense.

In respect to the first ground, it appears that when the preliminary examination was held before the district judge and the petitioners committed for trial in the district court of Kearney county, that county was then unorganized and attached for judicial purposes to Hamilton county. Until a permanent organization was effected, no district court existed, and no trial could be had in that county. For the time being, and for judicial purposes, it was a part of Hamilton county, and to the district court of that county the petitioners should have been committed for trial. The early organization of Kearney county was doubtless contemplated when the examination was had, and, as the parties “were probably to be tried in the new county, when organized, the judge was erroneously led to commit them for trial there. This erroneous order, however, does not affect the legality of the present custody of -preliminary emmeous the petitioners. They have had a proper and suflicient preliminary examination. It was conducted before the iudge of the district court, a competent magistrate; a full investigation of the charge was made, and he found there was probable cause to believe they were guilty of the offense charged, and held them for trial. They have had such an examination as the statute requires preliminary to the filing of an information, and the fact that they were committed in the wrong jail, or for trial in the wrong county, does not invalidate the examination, nor prevent the filing of an information in the proper county. An application for a release from imprisonment under that order could only have resulted in a transfer of the petitioners to Hamilton county for custody and trial. The information was properly filed in Kearney county when organized; the offense was committed within the bounds of Kearney county while it was a part of Hamilton county; and as Kearney was organized before an information or indictment was filed, the offenders must be tried in the new county. (The State v. Bunker, 38 Kas. 737.) We must assume, for want of proof to the contrary, that Kearney county was organized soon after the commitment of the petitioners, and before the information was filed against them in the district court of that county; and if they had been committed for trial in Hamilton county, as they should have been, the prosecution must necessarily have occurred in Kearney county, when its organization was completed, and it was provided with a district court.

The objection that Kearney county is not within the twenty-seventh judicial district is not good. There is no statute, it is true, declaring in terms that Kearney county constitutes a portion of that district; but there is one making Hamilton county a part of the district. Kearney waa a township of 2 counties-or-fuaíctoíaisJ tll0t' Hamilton, and in the abscence of any special pro-vision to the contrary it must be held to be in-eluded in the district, the same as the other portions of Hamilton county. Then, by § 8 of chapter 147 of the Laws of 1887, it was enacted that terms of court should be held in the unorganized counties of the district, at such ■ times as the judge thereof shall appoint, after the same shall have been organized. These provisions furnished authority for the holding of a term of court when the county was organized; and since it is shown that a term was held, we must presume that the county was organized, and that the conditions under which a term of court could be rightfully held existed.

The third ground of illegality relates to the sufficiency of the information, and we have concluded that it is fatally defective. The information was filed under § 283 of the crimes act, which provides for the punishment of those who attempt the commission of public offenses. It was intended to charge the petitioners with attempting to commit the offense of obtaining money from the Provident Savings Life Assurance Com pany of New York, by false pretenses. The pretenses and means by which the attempt was made are set out; but in our opinion they do not constitute an indictable attempt. It is alleged in substance that the defendants caused the issuance of a policy on the life of Geo. T. Reddington, one of their number, by which the insurance company agreed to pay to Mrs. Nettie Reddington, the wife of Geo. T. Reddington, the sum of $5,000 at his death; that they agreed among themselves that Geo. T. Reddington should pretend to be hurt, and subsequently to die; and that in pursuance of this conspiracy they pretended that Geo. T. Reddington was seriously injured while walking home on the evening of November 22, 1887, and that the injury resulted in his death; and further, that they purchased a coffin and pretended to have a funeral and to bury the body of Reddington; and that subsequently they opened the grave and the coffin and took therefrom weights which had been.placed therein; and that all these things were done with the intention to cheat and defraud the insurance company by obtaining therefrom the insurance-money; as it is alleged that Reddington was not injured, did not die, and was not buried, as represented. Nowhere is it alleged that Nettie Reddington, the beneficiary of the policy, was implicated in any way in the conspiracy, or had any knowledge of the steps taken by the defendants, or that she even believed her husband to be dead. It is not charged that the policy had been assigned, or that the beneficiary therein had been changed, nor yet that the defendants had control of the policy and intended to forge an assignment or transfer of the same. The pretenses are not alleged to have been brought to the attention of the beneficiary, and there is no statement that it was intended to induce her to apply for the insurance-money, either fraudulently or in good faith. It is not even stated that the false representations were made to the company, or to any of its agents. The company could not be defrauded unless the beneficiary, or some one for her, represented to it that he was dead, and applied for the insurance. None of the defendants had any interest in the policy, or any right to de- maud payment of the same, even if the insured had been actually dead. The means stated to have been employed for the purpose of obtaining the money were of themselves futile and vain to accomplish the intended end. They were not adequate nor suitable for the purpose, nor were they such as would apparently produce the desired result. The offense intended to be charged is defined “to be a deliberate crime which is begun, but, through circumstances independent of the will of the actor, left unfinished. More strictly, it is such an intentional preparatory act as will apparently result, if not extrinsically hindered, in a crime which it was designed to effect.” (1 Wharton’s Crim. Law, §173.) With reference to attempt, it has also been said that, “ If all which the accused person intended, would, had it been done, constitute no substantive crime, it cannot be a crime under the name ‘ attempt,’ to do with the same purpose a part of this thing. One reason is, that the specific attempt, which we have seen is always necessary in a criminal attempt, is wanting. Another reason relates to the act; namely, if a series of acts together will not constitute an offense, one of the series alone will not.” (1 Bishop’s Crim. Law, §747.) To charge the offense of obtaining money by false pretenses, the material facts necessary to be established must be set out. As every promise or pretense is not criminal, those relied upon must be plainly alleged, to enable the court to determine their indictable quality. The pretenses must be specifically negatived, and it must be stated that they were made to some person to be injuriously affected by them, and that upon the faith of such pretenses the money was obtained. The approved method of charging an attempt to commit the offense is to follow the form as for an accomplished fraud, charging the facts as fully and definitely as in the substantive crime, except in the ending, where, instead of alleging that the money was unlawfully obtained, to state that the defendants did then and thereby unlawfully attempt to obtain it. (2 Bishop’s Crim. Pro., §§194,195.) And where the acts charged to have been done and intended to be done would not, if consummated, constitute the substantive offense, the attempt will not of itself amount to a punishable crime. .There is a general allegation in the information, that the petitioners intended to cheat the insurance company out of the $5,000 promised in the policy; but this is not enough. The means by which it was intended to accomplish the purpose must be set forth. Some courts have held that to constitute a criminal attempt, the means used and intended must be suitable and adequate to effectuate the purpose; but the prevailing doctrine is that they must be such that in the ordinary course of things they would, if not interrupted, have apparently resulted in a crime; and the overt acts committed, together with the steps intended to accomplish the fraud, should be averred. Dr. Wharton, in speaking of an information for this offense, says the facts must be so fully set forth as to show that the attempt, is criminal in itself; and an information charging simply that the defendant obtained goods by false pretenses “ would be scouted out of court.” (1 Wharton’s Grim. Law, §192.) When the facts are so alleged, the means must at least ‘be apparently sufficient to have accomplished the fraud if the attempt had not been frustrated. Here Mrs. Reddington, the beneficiary, stood between the attempt and the execution. All of the steps taken and specifically alleged to have been intended, would not have operated to defraud the company. If Reddington was injured, had died, and had been buried, as was pretended, then, so far as the information shows, there was still no apparent ability on the part of the defendants to commit the fraud. Mrs. Red-dington, as has been stated, is not charged with cooperating in any way with the intended fraud. There is no statement that it was their intention to use her or the policy which she held to effect their purpose. Being the beneficiary, with the control of the policy, she effectually blocked the defendants from perpetrating a fraud on the company. If what was charged would naturally have resulted in inducing the company to part with its money, such attempt would probably be an offense; “ but when between the attempt and the execution is interposed the volition of an independent moral agent, then, by stress of the definition just given, an indictable attempt is not made out.” (1 Wharton’s Crim. Law, §§ 177,178.) 3. False pretenses -information —insufficiency. We think the information as it now stands does , , it/y> -1,1 not charge a public ofiense, and the commit- ° -*- / ♦ . . ment of the defendants thereunder is illegal. (The State v. Brannan, 3 Nev. 238; The State v. Wilson, 30 Conn. 500; Randolph v. Commonwealth, 6 S. & R. 397; Commonwealth v. Clark, 6 Gratt. 675; Mears v. Commonwealth, 2 Grant’s Cas. 385; Beasley v. The State, 18 Ala. 535; Anthony v. The State, 29 id. 27; Ladd v. The State, 17 Fla. 215; United States v. Stephens, 12 Fed. Rep. 52; Rex v. Powles, 4 C. & P. 571; Rex v. Marsh, 1 Den. C. C. 505.)

As the state may desire to file another or amended information, stating facts which would constitute a punishable attempt, time will be given for that purpose. The petitioners will be remanded to custody for ten days, when they will be discharged unless such an information is filed, and they are taken and held upon a commitment issued thereunder.

All the Justices concurring.