State v. Saindon

[123] The opinion of the court was delivered by Dawson, J.: The defendant was convicted of statutory rape on three counts. He assigns error in overruling his motion to quash two of the three counts charged in the information against him, which motion was based on the pretense that at his preliminary examination before the justice of the peace he had only been bound over to the district court to answer on one count. The motion to quash was properly overruled, because such motion would only reach some defect apparent on the face of the information; it would not raise an issue on the want or insufficiency of a preliminary examination. That point would have to be raised by a plea in abatement. (The State v. Finley, 6 Kan. 366; The State v. Blakesley, 43 Kan. 250, 23 Pac. 570; The State v. Woods, 49 Kan. 237, 243, 31 Pac. 786.) Moreover, the question of the sufficiency of the preliminary examination was inquired into by the trial court on the hearing of the motion for a new trial, at which time it clearly appeared that the preliminary complaint and warrant charged defendant in three counts with the crime of statutory rape, giving specific instances and dates. Evidence in support of these three distinct counts was introduced, which culminated in defendant being bound over to answer therefor in the district court. The information covered the same specific offenses which had been inquired into by the justice of the peace and no others; and the only basis for the claim that plaintiff was bound over to answer on only one count lay in the fact that the justice, in making up his record, recited that from the evidence it appeared that the offense of rape as charged in the complaint and warrant had been committed and that there were reasonable grounds for believing the defendant guilty, etc. But it was clearly shown that this recital was merely defective in grammatical construction, the singular being erroneously used for the plural, and that there had been no material want of conformity with the rules of procedure in criminal cases. It follows that the judgment cannot be disturbed. (R. S. 62-1718; The State v. Seidel, 113 Kan. 390, 392, 214 Pac. 565.) Affirmed. Buech, J., not sitting.