State v. Whitby

Supreme Court of Kansas

State v. Whitby

15 Kan. 402

DecidedJuly 15, 1875

StatusPublished

This text of 15 Kan. 402 (State v. Whitby) is published on Counsel Stack Legal Research, covering Supreme Court of Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

State v. Whitby, 15 Kan. 402 (kan 1875).

Pincite

Opinion

The opinion of the court was delivered by

Brewer, J.:

Appellant was sentenced to the penitentiary for the term of twelve years, as upon conviction upon an information for burglary in the first degree. A motion in arrest of judgment was overruled, and this is the error complained of. The attorney-general, after an examination of the information, very properly concedes the error. The in-' formation is for burglary, but fails to charge any entry. , It charges that defendant “feloniously and burglariously, forcibly burst and did break, with intent,” etc. It is well settled that to constitute burglary there must be both a breaking and [404]*404an entry. Our statute makes no change in the law in that respect. The motion in arrest ought therefore to have been sustained, and the judgment of the district court will be reversed, and the case remanded with instructions to sustain the motion in arrest. The defendant will be returned from the penitentiary, and delivered over to the jailor of Crawford county, to abide the further order of the district court. Under §§ 279 and 280 of the criminal code a new information can be filed, and the defendant put upon trial thereunder.

All the Justices concurring.

Free access — add to your briefcase to read the full text and ask questions with AI

The opinion of the court was delivered by

Brewer, J.:

Appellant was sentenced to the penitentiary for the term of twelve years, as upon conviction upon an information for burglary in the first degree. A motion in arrest of judgment was overruled, and this is the error complained of. The attorney-general, after an examination of the information, very properly concedes the error. The in-' formation is for burglary, but fails to charge any entry. , It charges that defendant “feloniously and burglariously, forcibly burst and did break, with intent,” etc. It is well settled that to constitute burglary there must be both a breaking and [404]*404an entry. Our statute makes no change in the law in that respect. The motion in arrest ought therefore to have been sustained, and the judgment of the district court will be reversed, and the case remanded with instructions to sustain the motion in arrest. The defendant will be returned from the penitentiary, and delivered over to the jailor of Crawford county, to abide the further order of the district court. Under §§ 279 and 280 of the criminal code a new information can be filed, and the defendant put upon trial thereunder.

All the Justices concurring.

Cite This Page — Counsel Stack

Bluebook (online)

15 Kan. 402, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-whitby-kan-1875.

Opinion

Related

Cite This Page — Counsel Stack