majority">

The opinion of the court was delivered by

JOHNSTON, J.:

This is a prosecution for the unlawful removal of buildings from mortgaged real estate without permission. (Gen. Stat. of 1889, ¶ 3900.) There was a conviction, following which the defendant was adjudged to pay a fine of $100, and be imprisoned in the county jail for a period of 60 days. •

The principal question presented upon the appeal arises upon the allegations of the information. It charges the removal of a barn from a certain lot in the city of St. John, Stafford county, upon which there was an unsatisfied mortgage of record, which is described; that the same remains unsatisfied ; and then follows the averment “ that said barn was removed from said lot 8 by the defendant, E. S. Decker, without first obtaining from the mortgagee or his agent written permission for the removal of said barn,” etc. The information contained no allegation that permission for the removal had not been obtained from the assign of the mortgagee. This was an essential averment. Under the statute, the act of removal becomes criminal only when it is made without written permission “from the mortgagee, his agent or assign.” In this case it appears from the foreclosure proceedings that the mortgage and note which it secures have actually been transferred by the mortgagee to another, and if Decker obtained permission to remove the barn from the person to whom they were transferred, no offense was committed. The want "of permission being an essential element of the crime, it was necessary for the state to allege it. In charging the jury, the trial court states that the prosecution must prove the want of permission from the mortgagee, his agent or as*195sign, but it did not require it to be alleged, and we find no attempt to prove a want of permission from the person to whom the mortgage was transferred.

Counsel for the state contend that the question cannot be raised now, for the reason that the objection was not raised by a motion to quash or by a motion in arrest of judgment. No motion to quash was filed, but in the motion for a new trial the sufficiency of the information was distinctly challenged. One of the grounds for setting aside the verdict was, “ that the information does not state facts sufficient to constitute an offense against the statute.” This averment was sufficient to challenge the attention of the court, and to require our consideration of the sufficiency of the information. (The State v. Jessup, 42 Kas. 422.) Treating the motion then as one in arrest of judgment, we are compelled to hold that the information is insufficient to sustain the conviction, and hence the judgment will be reversed and the cause remanded for further proceedings.

All the Justices concurring.

Citation profile

How this case has been treated — in progress