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53 Kan. 657

State v. Pryor

Supreme Court of Kansas

Decided July 15, 1894

Supreme Court of Kansas · decided 1894-07-15

The information in this case charged the defendant, under §38 of the act in relation to crimes and punishments, with a felonious assault with a deadly weapon on George Sims, with intent to maim, and kill said Sims. At the trial the defendant refused to plead, and thereupon a plea of not guilty was entered. A jury was called, and those called as jurors were examined as to their qualifications.

Relies on Wingard v. State

Good law ✅— No negative treatment on recordhow we know

Decided 1894-07-15

How this case has been cited

Cited by 12 later decisions — most recently November 1941

12 state decisions

40189419001910192019301940decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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¶1The opinion of the court was delivered by

Horton, C. J.:

¶2A motion to quash should precede arraignment. (The State v. Otey, 7 Kas. 69; The State v. Ruth, 21 id. 583; 4 Am. & Eug. Encyc. of Law, 764.) The proper time to raise the question of the sufficiency of an information or indictment before a verdict is by a motion to quash; after verdict, by motion in arrest of judgment. It is not good practice to raise an objection to an information by objecting to the introduction of testimony. The question of the jurisdiction of the court may be presented at any time. (The State v. Ashe, 44 Kas. 84, and cases cited.) If a person, when arraigned, refuses to plead or answer, a plea of not guilty must be entered, and the same proceedings are then had in all respects as if he had formally pleaded not guilty. (Crim. Proc., § 161.) If the information was defective, the trial court ought to have permitted it to be amended. (Crim. Proc., § 72.) It would not have prejudiced the rights of the defendant to have stricken out “to maim” or “to kill,” as the prosecution might have elected. The general rule is, that duplicity in criminal cases cannot be made the subject of a motion in arrest of the judg*659ment. It is cured generally by a verdict of guilty as to one of the offenses charged. (Whar. Cr. Pl., § 255.) Therefore it is important that the sufficiency of the information or indictment be disposed of before arraignment.

¶3It is allowable to state in the same count of an information or indictment the successive gradations of statutory offenses conjunctively, when they are not repugnant. It is observed by Wharton that, where a statute makes two or more distinct acts connected with the same transaction indictable, each one of which may be considered as representing a phase in the same offense, it has been ruled that they may be coupled in one count. (Whar. Cr. Pl., §251; Commonwealth, v. Miller, 117 Pa. St. 276; Wingard v. The State, 13 Ga. 396.)

¶4The judgment of the'district court will be reversed, and the ease remanded for further proceedings, in accordance with the views herein expressed. (In re Scrafford, 21 Kas. 735; The State v. Ashe, supra.)

All the Justices concurring.
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