State v. Grewell , 19 Kan. 189 ( 1877 )

The opinion of the court was delivered by

Horton, C. J.:

The question to be determined ' in this case is, as to the sufficiency of an information purporting to charge defendant Grewell with the offense of violating the provisions of section 26 of ch.122, laws of 1876, p.287, relating to trespasses on school lands. The information states the offense in the words of the statute, but alleges no amount of damage, nor any value whatever, as the result of such alleged trespass. Said section 26 provides among other things, that “the person committing such trespass shall be deemed guilty of a misdemeanor, and may be indicted and fined in a sum not less than double the amount of damage proved to have been committed, and not exceeding one thousand dollars, and confined in the county jail not less than one month, and not more than six months.” As the plain requirement of the statute is, that a part of the punishment to be inflicted is a fine, and as such fine cannot be less than double the amount of damage proved, said fine is to some extent measured by the proof of the damage committed by the trespass, and therefore it seems the necessities of the case demand an averment of the value of the thing injured, or the amount of the damage committed. Unless such an allegation is made, no proof of damages can be given. In the absence of such proof, no fine can be inflicted; and thus, in no event could the penalties provided by the law be adjudged against a party upon an information like the one filed in this case. This condition of things brings this case within the exception to the general rule, that it is sufficient to describe a misdemeanor created by statute in the words of the statute, if this law is to be fully enforced, as an averment of value is necessary to determine a part of the punishment. (The State v. Armell, 8 Kas. 288.) While the statute provides for imprisonment in the county jail, as additional penalty for a violation of the statute, and thereon may be based some argument in favor of the sufficiency of the information, still, construing all of the section together, and considering the fact that the legislature clearly intended in such an action to obtain damages proportionate to the injury committed, and to accomplish this a fine not less than double the amount of damage proved, and not exceeding $1,000, must accompany the imprisonment, we think the true construction of the law applicable to the case to be, that all informations under said section should contain an allegation of the amount of damages alleged as committed by the defendant violating the provisions of such section.

The statute contemplates damages as an essential ingredient of the acts prohibited, as it expressly states damages are to be proved. If no damages can be proven, no conviction should be allowed; and no damage can be proven, if no averment is made thereof. If no damages can be adduced upon the trial of a defendant charged with the acts prohibited by this statute, it would seem wrong, almost malicious, to institute a public prosecution; and if damages can be proven, it would be also impolitic to permit the county attorney to omit such proof, and thereby waive so much of the penalty as requires the infliction of a fine on conviction. The learned attorney general, representing the state, suggests in his brief that the tf ascertainment of damages might be omitted by the state till after a verdict of guilty, then the court by the inherent powers with which it is invested, could, in some proper mode, ascertain the damages done, to enable it to fix the amount of the fine.” This, to us, seems a confession of the necessity of making proof of the amount of the damage to determine the punishment; and if this much is conceded, the argument is conclusive against the sufficiency of the information. In this case the court is restricted as to its infliction of punishment; and if proof must be submitted to determine the same, a defendant has the right to have a jury pass upon that proof, and decide whether the damage is one dollar, or $500, or nothing. Where a court may, upon a plea or verdict of guilty, pass sentence without any proof, of course, in its discretion, it may examine witnesses, or take the statements of the counsel on either side, as means to inform itself as to the true character of the offense committed, and as to what should be the sentence, within the limitations of the law; but when a court is bound to receive proof in a case to determine the punishment, and cannot inflict the punishment until such proof is received, the information or indictment should contain the averments upon which the proof is to be submitted. In all prosecutions, the accused shall be allowed to demand the nature and cause of the accusation against him; and can it be said that a defendant was fully informed of the nature of the charge, if after being convicted upon an information like the one in controversy, the court could by its inherent powers take testimony and find, perhaps upon the evidence of the complaining witness alone, that the amount of damage committed was $500, when such a finding must result in assessing the defendant to pay a fine of $1,000, and committing him to jail until such fine was paid ? With such a construction of the law, and such results to be obtained, could we say a defendant had had a trial by an impartial jury? We answer no. The guaranty of a trial by a jury to a person charged with a crime, is not complied with by permitting only a portion of the facts constituting the offense to be submitted to the jury, and leaving important questions, which are to be settled by proof, to be disposed of by the court in its own way, and according to its own chosen methods, regardless of the provisions of the constitution.

The order of the court arresting judgment upon the verdict will be affirmed.

All the Justices concurring.