State v. Hollon , 22 Kan. 580 ( 1879 )

The opinion of the court was delivered by

Valentine, J.:

This is an appeal by the state of Kansas from an order of the court below quashing a criminal information, charging the defendant with committing an escape from the custody of the sheriff of Marion county while being taken to the penitentiary, under a sentence to be imprisoned therein for the period of three years, for the crime of perjury. The defendant has made no appearance in this court, and therefore we are at a loss to know upon what specific ground or grounds the court below quashed the said information. Probably it was upon the ground that the information did not in terms allege that the sheriff had a duly-certified copy •of said sentence in his possession when the defendant made the escape. (Gen. Stat., p. 861, § 256.) This we think is the-strongest ground upon which to place the order of the court •quashing the information. But even in this respect the counsel for the state claims that the information was not fatally •defective. It gave a copy of the order and judgment sentencing the defendant to be imprisoned in the penitentiary as .aforesaid, and then states that while the defendant was “in the lawful custody of the sheriff,” “under and by virtue of the order and judgment aforesaid as entered of record,” “and while going to the place of confinement aforesaid, to wit, to the penitentiary of the state of Kansas,” “ under and by virtue of said order and judgment aforesaid, the said Joseph Hollon did, at Marion Centre,” “then and there feloniously break -such custody of the sheriff,” “and did then and there ■escape therefrom.” The counsel for the state seems to claim that the fact that the sheriff had a copy of the sentence, Although a necessary fact, is nevertheless such a minor and .subordinate fact that it need not be set out in the information in any great detail, or with any great particularity or definiteness, and therefore that the allegations contained in the •information tending to allege this fact are sufficient. He seems to claim that the allegations that the defendant, “while in the ■lawful custody of the sheriff,” “ under and by authority of the •order and judgment” containing the sentence, “and while going to the place of confinement,” “under and by virtue of •said order and judgment,” escaped, are equivalent to allegations that the sheriff had all the necessary authority and papers, including a duly-certified copy of the sentence with which rand by which to hold the defendant in custody. We are inclined to agree with counsel for the state, that the fact of the sheriff having a certified copy of the sentence is such a minor .and subordinate fact that it need not be set out in the information with any great degree of fullness. In fact, we think that if it were set out in any form, even in the most general terms, it would be sufficient. But we think it should be set-out in some form. See, upon a kindred question, State v. Beebe, 13 Kas. 589, 595. Now we do not think that this-fact is set out in any form in the present information. Of course, the information says the defendant was in “lawful custody.” But in “lawful custody” how? This is merely a conclusion of law from the matters and things afterward alleged in the information. The defendant was in the “lawful custody of the sheriff of Marion county, Kansas,” [because as it would seem the sheriff was generally] “the custodian of criminals therein,” [and because he was in custody] “under and by virtue of the order and judgment aforesaid.”' But he was not in custody under a duly-certified copy of such judgment and order then in the hands of the sheriff, but he was in custody “under and by virtue of the order and judgment aforesaid, as entered of record upon such conviction and sentence aforesaid.” In other words, the “lawful custody” mentioned in the information is shown to have been founded upon nothing but the general authority given by law to sheriffs with proper papers to hold criminals in custody, and the judgment as rendered against the defendant on the records-of the district court. It would seem that the sheriff’ did not have any paper of any kind with which or by which to hold the defendant in custody. Therefore the said supposed “lawful custody” was not lawful custody at all, and the defendant did not commit the crime intended to be charged by escaping therefrom.

The order and judgment of the court below quashing the information will be affirmed.

All the Justices concurring.