The Emporia news. [volume] (Emporia, Kan.) 1859-1881, 1878-09-13


ficient, and no concealment being estab-
lished, prosecution is debarred by the
statute of limitation.
Adjourned till o'clock p. m, at which
time Davis argued for the prosecution:
This question has never been brought
before the Kansas Supreme court, but
the tendency of our courts is to consider
the allegation of facts in the language of
the statute as sufficient in the indictment.
Gillett said he was aware of the Indiana
decision cited after the indictment was
drawn, but the question is, is that good
law in this State? Many courts hold
that no allegation is necessary. In the
14th Kansas, page 538, the Supreme court
recognizes that it is sufficient to charge
an offense in the language of the statute.
Tire cOncealment is not the offense itself
but an exception to the offense, and the
same logic would apply to it. The Kan
sas Supreme court has established a diff
ferent rule of construction from that of
Indiana, hence it should take the prefer
ence. The Indiana decision is at vari-
ance with common law. Ruggles quot
ed the decision in list Kansas, that when
a State adopts a law of a sister State, it
adopts also the construction of the law
by the courts of that State. Scott gave
examples intended to illustrate the alb
surdity of alleging the sufficiency of the
language of the statute in an Indictment
1t is impossible to specify crime without
going beyond the statute language. Gill
lett raised the point that the Indiana de
cision was rendered in 1860, the Kansas
criminal code adopted in 1859.
Scott claimed that this did not affect
the matter. An information must state
the facts. Davis said the facts of the
crime itself were stated in the indict-
ment. The court would without ques-
ton have Ovcrruled a motion to quash,
hence should override this objection to
the evidence. Question further discuss
ed by Gillett and Ruggles. The court
held that the Kansas Supreme court had
never decided that the statute language
was sufficient. The concealment of crime
must be some positive act, hence should
be specifically charged. Question re-
served on the part of the State.) This
decision would have had the effect of
throwing out the testimony by the statute
of limitations, but the point was raised
by the State that in the Bird count of the
Indictment it is alleged that on ] une 9th,
1877, demand was made on Bancroft
for the money, by representatives of the
Board of Regents, and the refusal to pay
over that money on demand constitutes
the act of embeZZlement Ruggles claim
ed that by Sec. 4 of the Normal school
land act, it is the duty of the agent to de
post the money in the State treasury on
receipt of it, therefore when the sale was
made and the money retained the crime
was complete. Question was further ar
gued by counsel on both sides, a4ad de
cision of the court rendered, in substance
as follows:
There are two facts to be proven: 1st
the sale of the land. End; The reception
of the money. The defendant cannot be
charged with embeZZlement until it is
shown that the money was converted tC
his own use. When such conversion
took place is question for the jury to
decide. If the money was received one
day prior to the two years, the statute OF
limitations could not be plead, because
a reasonable time must be given for the
transfer of money by the agent 10 it
rightful owner.
Ruggles asked a ruling of court 10 eX
clude all evidence of sales prior to Marcel
9th, 1876, or a reasonable time before
that. Gillett claimed there could be nc
ruling on this matter until the evidence
was heard. 1t must go 10 the jury as ;
part of the case, to be passed upon by
them under the courts instruction. Thu
indictment alleged that the conversion
took place June 9th, 1871 RHggles
held that that allegation was limited anC
controlled by other allegations in the in
dictment. Crichton said it was not falt
duty of the agent but the board to de
post the money in the State treasury
when they received it. The court finally
ruled that an agent simply collecting
money and not paying it over would no
amount to embeZZlement-hence the ev
idence was admitted.
The defense then took the position
that the indictment was faulty in that i
charged Z. p. Bancroft as the agent O
the State of Kansas, when in fact he wa.
the appointee and agent of the Board O
Regents. The statute expressly refers
to such appOintee as their authorized
agent. The prosecution took the ground
that the property sold is the property O
the State, hence the agent selling is tn,
State agent. Under the old law the agen
executed bond to the State as securit,
for the proper performance of his duties
Defense cited authorities from the els
volume of English common law, anC
claimed that the person appointed is heIC
to be the servant of the appointing pow
er. Attorney General Davis thought the
authorities cited did not apply to thu
case. The act of 1877 provides that "al
suits affecting the State Normal school
its property or its endowment, shall be il
the name of the State" Lynn took tn,
position that the State did not own tn,
property-Only held it in trust from tn,
general government. A correct constx7lc
ton of every definition of principal an6
agent laid down in the law books woGIC
make Bancroft agent of the board Tht
present law requires no bond, but secur
/ ity to the board of directors. Further
argument ensued, but the main point.
have been stated. The ruling of tht
court was to the effect that inasmuch a.
when the general government was di
vested of the title to the lands in cues
ton it passed to the State, the State i!
legal owner of the lands in question
the agent for the sale of the lands i!
agent for the State, and is spoken of il
the statute as agent for the directors il
the same manner as any sub-appOinte,
may be spoken of as the agent for al
agent. Under this ruling evidence wa
| admitted, and J. II. Crichton was re
called to the stand.
Mr.. Crichton testified as follows: FRS
attended meeting of the board in June
1874; knew defendant, but did not Al
that time know that he was agent for thu
sale of Normal lands. Learned it from
conversation with him sometime in the
winter or spring of 1877. March 21st
1877, Mr.. Bancroft came before the board
in session at DIR. Wright's office. Wit
ness told Bancroft that the board haC
just learned that a patent had been Civ
en- for 1GO acres of land to Patrick Hall
on his (Bancroft's) certificate of sale; anC
asked him how that patent came 10 be