State v. Schaben

Citations

• 69 Kan. 421
• 76 P. 823
• 1904 Kan. LEXIS 265

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Larceny—Motion to Quash the Information Properly Overruled. An information under the statute making it larceny to alter the brand of an animal with intent to steal it, after stating facts constituting the offense, added in the same count a formal charge of larceny, manifestly referring to the same act. The de.fendants moved to quash because two felonies were charged in one count. The court struck out the language peculiar to ordiL nary larceny and overruled the motion. Held, that the defendants were not injured by the act or ruling of the court.</p> <p>2. -Error in Refusing to Require an Election between Counts Cured by Withdrawal of One. Where an information contains one count charging the larceny of certain cattle and another charging the larceny of other cattle belonging to a different •owner, and the opening statement of the prosecutor discloses that •it is claimed that all of the property was stolen by the same act, the error, if any, in overruling a motion to require an election be- • tween the counts is cured by the withdrawal of one count from the consideration of the j ury at the conclusion of the state’s testimony, where no evidence has been admitted which was not pertinent to the remaining count.</p> <p>3. Jury and Jurors — Misconduct—Record Insufficient for Rev ew. Where the jury during their deliberations wrongfully obtain possession of a publication described as an “ almanac,” and a motion for a new trial is made based on such misconduct, to which motion such publication is attached as an exhibit, and the • trial court denies the motion, such ruling cannot be reviewed in this court upon a record which does not contain a copy of the publication or any statement as to its contents.</p>