95 Kan. 241 | Kan. | 1915
Lead Opinion
The opinion of the court was delivered by
In a prosecution begun before a justice of the peace the appellant Brungardt, together with A. Á. Dreiling, was found guilty of assault and battery. They appealed to the district court and were there convicted. Brungardt alone has appealed.
The rules respecting the making of abstracts have been wholly disregarded, and counsel has injected paragraph after paragraph of argumentative statements, some of them italicized and some in heavy boldface type. Such statements have no proper place in an abstract, the purpose of which is to present such portions of the record as are deemed to be pertinent to the appeal. It is intended to take the place of a transcript and to constitute here the record of the case, to be referred to by the court as the record in considering the case and for the use of both sides in preparing their briefs and in oral argument. No motion has been made to strike the abstract from the files, and the action being a criminal one, the court is not inclined of its own motion to enforce the rule or to refuse to hear the appeal.
Most of the assignments of error relate to matters that are of trivial importance. It was in the court’s discretion to refuse the appellant a separate trial in a misdemeanor, and there is no ground for the contention that there was an abuse of discretion in denying him the right. The appellant made no objection to going to trial on the theory that the transcript from the justice was not properly certified. A witness was
There is but one assignment of error which is of sufficient importance to require comment or reference to authorities. On the motion for a new trial' the appellant produced the affidavits of two jurors to the effect that in the jury room reference was made to the failure of the appellant to testify. One of the jurors stated in his affidavit that before agreeing to the verdict of guilty he took into consideration that neither of the defendants went upon the stand and testified; that he considered this as a circumstance against appellant, and that it had weight with him in agreeing to the verdict of guilty. The other juror testified that it was mentioned by several jurors, himself included, that it
The trial court in his opinion, after commenting upon the absurdity of any pretense or attempt by courts to require a literal enforcement of the statute (Crim. Code, § 215) forbidding jurors to consider the fact that a defendant in a criminal action has failed to take the witness stand in his own behalf, made this statement:
“The court will .add further that it does not believe the testimony of those two jurors who say they considered that . . . These are intelligent jurors. The coúrt saw them and heard them and knows what they said, and what they testified to, and does not believe that they willfully disregarded the instructions . . . No matter what they say about it now.”
The court further held the affidavits stronger than the court was justified in believing their literal terms, and refused to believe that the affidavits meant what they said.
It is fundamental that a juror can not impeach his verdict by an affidavit or testimony to the effect that he considered this or considered that, or by attempting to relate the working of his mind or the mental processes by which he arrived at an agreement to the verdict. (The State v. Clark, 34 Kan. 289, 292, 8 Pac. 528; The State v. Burwell, 34 Kan. 312, 313, 8 Pac. 470; 12 Cyc. 749, 750.)
“Any of the jurors are competent to testify whether the affidavits were before them during their deliberations, or not, and whether any one of the jurors read them, or not; for such facts do not constitute any part of their verdict; but none of the jurors could testify that their verdict was based upon the affidavits, or that the affidavits had any influence upon the jurors in forming their verdict, for such facts would constitute elements.inhering in the verdict itself.” (p. 292.)
. In The State v. Rambo, 69 Kan. 777, 77 Pac. 563, a juror testified that he mentioned in the presence of other jurors the fact that the defendant had failed to testify. Notwithstanding he further testified that the defendant’s failure to take the witness stand in his own behalf was not considered by him in arriving at a verdict, a conviction of murder was set aside. The doctrine of that case has never been extended, and the tendency of the court has been to restrict the effect of the decision as far as possible. It has been held in a recent case (The State v. Brooks, 74 Kan. 175, 85 Pac. 1013) that where the trial court, after hearing the testimony of jurors to the effect that they had considered and weighed such testimony, concludes that their statements are not true, there is no ground for enforcing the rule announced in the Rambo case. Under the authority of The State v. Brooks, supra, we approve the ruling of the trial court denying the motion for a new trial, and the judgment will be affirmed.
Concurrence Opinion
(concurring specially) : The decision in The State v. Rambo, 69 Kan. 777, 77 Pac. 563, if strictly adhered to would reverse the judgment in this case. Adherence to its doctrine would make it an easy matter to overturn a verdict of guilty in almost every case where the defendant fails to testify in his own behalf. The decision has never been followed, and I doubt if it ever will be. It has never met with the sanction and approval of the bench and bar, but on the contrary has been the subject of much criticism by judges and lawyers throughout the state. The language of the statute must be given a reasonable construction, not a literal one, because that leads to a manifest absurdity. Whenever a person charged with a crime fails to testify in his own behalf nothing is more natural than for jurors, courts and everyone to wonder why it is, and to consider his failure to testify as a circumstance against him. Legislative enactments can not repeal the law of gravitation, and a rule declaring that water shall run up in place of down hill would constitute no more of a brutum fulmen than section 215 of the criminal code forbidding courts or jurors to consider the fact that the defendant in a criminal action has failed to testify in his own behalf, if we give to this statute its literal meaning.
In The State v. Brooks, 74 Kan. 175, 85 Pac. 1013, it was said in the opinion:
“The prohibition can not reasonably be construed as absolutely forbidding the court and jury to take any thought whatever regarding such omission of the defendant — to deny it entrance to the mind in any aspect. Such a requirement would be impracticable. The very reference to the matter in the instructions of the court would be a violation of the law under such a construction. The statute provides that the prosecuting attorney must not refer to the circumstance that the defendant has not testified, but the language with regard to the court and jury is different; they must not*247 consider it — that is, give weight to it in arriving at a decision, attach to it the force of evidence, or draw any inference from it.” (p. 179.)
I think this is the time and place to overrule The State v. Rambo, supra.