The opinion of the court was delivered by
Albert J. Hibbs was convicted in police 'court of violating ordinances of the city of Wichita prohibiting the driving of a motor vehicle on the public streets of that city while under the influence of intoxicating liquor and the destruction of city property. He appealed to the district court of Sedgwick county, where he was again tried and found guilty. The appeal is from the judgment of conviction and sentence imposed by the district court.
The record discloses the'following facts: Shortly after midnight on August 2, 1942, two policemen of the city of Wichita found a
In the district court, prior to the opening statement of appellant, immediately subsequent thereto, and at divers other times during the trial, appellant objected to trial and formally moved for his discharge on the ground there had been no complaint in writing or verified complaint of any character made against him and no warrant issued for his arrest. The first error of which appellant complains is the overruling of all such objections and motions. This complaint entirely overlooks the fact that, without objecting to the sufficiency of the oral complaint made against him or demanding the filing of a written one and without challenging the right of appellee to cause his arrest without the issuance of a warrant, appellant entered into a recognizance for his appearance at the trial in police court and still later executed and filed his bond appealing from the judgment there rendered against him. The contention there was no verified charge of any character made against appellant is not
It is urged the trial court erred in admitting the accident report which was signed by appellant the morning after the accident, the objection being that since the law requires the making of a report by one involved in an accident of the kind here involved, such report cannot be used in a subsequent criminal proceeding for the reason that it in effect compels the accused to testify against himself in violation of both the state and federal constitutions. We doubt the soundness of appellant’s position but there is no occasion to determine the question urged by him. The record does not disclose the admission of the report tended to prove or disprove the charge defendant was driving while intoxicated or had destroyed property. In fact the only statement to be found therein which was in anyway material to such issues was one disclosing who was the driver of the car on the night the accident occurred. Appellant himself made no'denial of the fact he was the driver and so testified as a witness in his own behalf. Even if the statement had been inadmissible for the reasons urged by appellant’s counsel its introduction under such conditions merely resulted in the production of cumulative evidence, and certainly did not prejudice the accused.
The appellant testified as a witness in his own behalf and during the course of his direct examination denied he had used intoxicating liquors on the date of the accident or that he ever touched alcohol or whiskey in any form. On cross-examination he was interrogated by appellee as to his use of intoxicants and whether he had previously been arrested for being drunk or driving while intoxicated. During his examination he admitted he had been arrested on one occasion for drunken driving. Appellant’s counsel objected to questions pertaining to former arrests and insisted that appellee’s interrogations be restricted to whether the defendant had ever been convicted of criminal offenses. After some colloquy between court and counsel the trial court sustained the motion of the appellant that all evidence relative to former arrests be stricken and instructed the jury to disregard all evidence theretofore admitted pertaining to such former arrests. Notwithstanding the evidence was stricken, appellant insists the conduct of counsel for appellee in interrogating the accused on such matters and the action of the court in permitting counsel to do so was so prejudicial to the rights of the appellant as to constitute reversible error. The objection is too trivial to require much comment. This court has long been committed to the rule that where done in good faith and for the purpose of impairing his credibility, a defendant may be cross-examined concerning previous offenses and subjects involving him in degradation and disgrace even though they do not pertain to the charge for which he is then on trial. Also, that the extent of cross-examination touching the credibility of a defendant in a criminal action rests within the sound discretion of the trial court. (See State v. Story, 144 Kan.
Appellant complains of the conduct of the city attorney in making his closing argument and of the fact certain photographs and other papers, not used by the appellee, were permitted to remain on the counsel table during the trial and argument, all of which he urges was prejudicial and influenced the jury in returning a verdict against him. It does not appear any objection was made to the remarks or action of the city attorney while addressing the jury. Nor is it claimed any objection was made during any stage of the trial to the photographs and other papers in his file or on the counsel table. If counsel thought the matters now complained of were prejudicial to the rights of the accused it was incumbent on him to call them to the trial court’s attention during the trial so that it might rule upon his objection. He had no right to sit idly by, ignore matters claimed by him to be trial error, take his chances of an acquittal, and then when convicted, for the first time on motion for a new trial present his objections and insist they were sufficient to require the granting of a new trial. When counsel see fit to follow that course and present their objections for the first time on the hearing of a post-trial motion, this court on appeal will not disturb the ruling of the trial court in refusing to grant a new trial.
Complaint is made of the failure of the trial court to permit the jury to view the automobile driven by appellant at the time of the accident. A motion for such permission was filed during the trial and the court, on appellant’s assurance transportation would be furnished for the jury to go to the appellant’s home where the vehicle was then stored or that it would be brought to the courthouse, agreed to an inspection thereof. At the close of appellant’s evidence
Another complaint is that the jury was guilty of misconduct. Appellant sought to offer evidence tending to impeach the verdict. This court has held many times that a juror will not be permitted to impeach his own verdict. (See State v. Buseman, 124 Kan. 496, 260 Pac. 641; State v. Cole, 136 Kan. 381, 384, 15 P. 2d 452, and State v. Lammon, 153 Kan. 822, 113 P. 2d 1052. The question of misconduct on the part of the jury in the first instance is for the trial court. In the instant case the trial judge specifically stated that in his opinion the jury had reached a just conclusion and he could see no reason to disturb the verdict. In the face of such a finding we fail to find anything in the record which would justify this court in setting aside the order refusing to grant a new trial.
Other alleged errors are complained of but we find nothing in them of sufficient importance to require discussion. In our examination of them and the matters herein specifically referred to, alleged by the appellant to be erroneous, we find no error affecting his substantial rights. The judgment of the district court is affirmed.