State v. Braden

96 P. 840, 78 Kan. 576, 1908 Kan. LEXIS 105

• Court: Supreme Court of Kansas
• Decided: July 3, 1908
• Docket: No. 15,746
• Status: Published

Opinions

The opinion of the court was delivered by

Graves, J.:

The motion to dismiss was properly denied. The state is allowed three terms after the information is filed in which to bring a defendant to trial. In this case the information was not filed until November 9, 1906. The trial was had at the May term following. The information could have been filed at the October term, 1906, as the transcript from the justice of the peace who held the preliminary examination was filed September 18, 1906. If the defendant -desired to hasten the trial he should have made appli■cation to the court to require the information to be filed at the beginning of the October term.

The verdict in this case is too indefinite to indicate ■the offense of which the defendant was found guilty. 'It states that he is guilty of the crime of grand larceny as charged in the information. The information contains no charge of that offense. No facts are there stated which constitute such a crime, and no language therein indicates that the pleader had grand larceny in mind when the information was drawn. The facts which constitute the offense defined in the statute under which the information was drawn do not constitute larceny in any legal sense, but the newly created crime had to have a name, and larceny was selected. The word “robbery” would have served the same purpose. The only reference in this statute to grand or petit larceny is made for the purpose of fixing the punishment for the crime, by reference to another statute, and was not intended to define or describe the offense there created. This sufficiently shows how disconnected and remote the words “grand larceny,” as used by the jury in the verdict, are from the offense charged in the information or as it is defined in the statute.

Again, the verdict furnishes no facts which would enable the court intelligently to pronounce sentence. The value of the property disposed of is not given. Unlike the offense of grand larceny, where the value of the property taken, if cattle, is immaterial, in this offense it is important. The extent of punishment depends entirely upon the value of the property disposed of, and may be either five or seven years. In the absence of a finding as to the acts committed by the defendant or the value of the property disposed of the court can not know with certainty what sentence to pronounce.

It has been said that by considering the verdict, information and the statutes which define the offense charged and fix the punishment for grand and petit larceny together it is possible by inference, construction and conjecture to ascertain what the jury intended by the verdict, and that the verdict, so interpreted, should be regarded the same as if it read: “We, the jury, find that the defendant, at the time and place named in the information, did wilfully, unlawfully, and feloniously, and with intent to cheat, wrong and defraud the First National Bank of Independence, Kansas, sell and dispose of the property described in the information, which was then and there of the value of more than twenty dollars, and upon, which the said First National Bank then held a mortgage lien of more than twenty dollars, all of which was done in manner and form as charged in the information.” We can not concur in such a view. If verdicts may be supplied with material and important findings omitted by the jury by this kind of conjecture and guesswork, then the security of trial by jury, which we have long supposed to be a shield and protection to persons charged with crime, will have received a serious blow. A person charged with a crime is supposed to be innocent until a verdict which is the result of a lawfully conducted jury trial has been found, and which states in language so definite and certain that different minds can not fairly disagree as to its meaning that he is guilty of such offense. There may be cases where, by a reasonable degree of inference and interpretation, a verdict which is in some degree indefinite and uncertain may be rendered clear and certain beyond a reasonable doubt. In such cases it may be proper by construction to sustain the verdict. All that we decide here is that in this case, as presented, the construction and inferences which the district court must of necessity have resorted to in order to sustain the conviction of this defendant are too robust and far-fetched to be upheld. (The State v. Reddick, 7 Kan. 143; In re Howard, 72 Kan. 273, 83 Pac. 1032.) The defendant should have been given a new trial.

The judgment of the district court is reversed, with directions to grant a new trial and proceed in accordance with the views herein expressed.

Johnston, C. J., Burch, Smith, Porter, Benson, JJ., concurring.