206 P.2d 118 | Kan. | 1949
The opinion of the court was delivered by
Appellant was charged in the district court of Shawnee county by an information in due form of murder in the first degree of Trinidad Alejos. A trial by jury found him guilty
The evidence offered by the state, which the jury were authorized to believe, may be summarized as follows: Trinidad Alejos, a Mexican, twenty years of age, was married, his family consisting of his wife and one child. Jose Aguirre, also a Mexican, was a single man, forty-seven years old, who made his home with his mother and stepfather. They and other Mexicans lived in the vicinity of the Santa Fe shops, where the men were employed. The Spanish Village is located at the northwest corner of First and Jefferson streets in Topeka. It is a stucco building, about twenty feet wide and thirty-six feet long. It is a beer parlor where persons of Mexican extraction congregate to drink beer, visit and find entertainment. The front was well lighted. On Saturday, January 31, 1948, the ground was covered with snow. Trinidad Alejos did not work that day, as it was his day off. He spent the day with his family and on various errands. He went to the Spanish Village early in the evening, but soon left and returned about 11:00 p. m. His uncle, Louis Alejos, worked that day until about 9:00 p.m., when he left in order to complete plans for a birthday surprise party for his wife to be held the next morning. He visited the Spanish Village at various times to invite some of his friends whom he knew he would find there. He returned to the Spanish Village about 11:00 p. m. John Torrez early that evening had met Aguirre at a beer tavern known as the Paradise Inn and at the request of Aguirre went with him in his truck to a place on California Avenue where Aguirre wished to purchase a hunting license. The place was closed and they returned to the Paradise Inn. From there Torrez, driving his own automobile, went to the Spanish Village about 11:00 p. m. and parked his car on the west side of Jefferson street a short distance south of the Spanish Village. At that time'there were perhaps twenty or thirty persons in the Spanish Village. About 11:30 p. m. Aguirre arrived at the Spanish Village and joined a group of men who were drinking beer at the bar near the north end of the building. In the group near Aguirre were Torrez, Refugio Granada and Trinidad Alejos. All the men there were drinking beer. None of them was drunk. Louis Alejos was in a booth on the west side of the building with Jose Sanchez and his wife, talking about the party he was to give the following morning. The men near the bar
The next morning, about 9:00 o’clock, Jerome Brown, a detective of the police department, went to the hospital and talked to Louis Alejos and Aguirre. He then contacted the county' attorney and requested him to come to the hospital. The county attorney called an official court reporter of the district court and about 10:00' o’clock a. m. he, the reporter and Brown, after talking to the nurse in charge, went to the room of Aguirre and found that he was awake. The county attorney introduced himself, the reporter and Brown,' and asked Aguirre in regard to the happenings of the previous night. The questions were asked in English and the answers made in English. Defendant had no trouble understanding the questions or making answers because of the use of English. In answer to questions defendant told of the events of the preceding night and contended that he shot because of being attacked by the men in front of the Spanish Village. Briefly stated, it was a story of self defense. After talking to Aguirre the county attorney also talked to Louis Alejos in regard to the happenings of the preceding night. Later that day the injured men were transferred to the Santa Fe Hospital.
At the trial the defendant took the stand and testified in his own behalf. His testimony was in support of the theory of self
The county attorney, the court reporter, Mr. Brown, Doctor Joss, the nurse and the priest who saw Aguirre about 3:00 or 3:30 o’clock in the'morning, gave testimony before the court in the absence of the jury, which testimony pertained to the physical and mental condition of Aguirre, particularly at the time the statement was taken in the hospital on February 1. The county attorney made it clear to the court that his questions pertaining to that statement were asked for the purpose of impeachment. The court held the evidence to be competent. The jury was called and the cross-examination of the defendant proceeded. In the course of that the county attorney asked defendant if he had not made certain statements when questioned at the hospital which differed in some respects from the testimony he had given on the trial. His answers in each case were that he did not remember, or that he did not know whether the question was asked, and perhaps in some instances he positively denied that he had made the statements. The county attorney then planned to offer that portion of the statement concerning which the witness had been questioned. In doing so he advised the court that counsel for defendant insisted that if any part of the statement went in that it should all go in. Counsel
The principal questions relied upon by appellant for reversal pertain to the statement made by defendant at the hospital on February 1, 1948. Appellant contends the court erred in admitting the statement in evidence. As previously noted, the state introduced the statement in evidence only upon the insistence of counsel for defendant after certain questions and answers therein had been called to the attention of the defendant for the purpose of impeaching or discrediting his testimony. Hence, counsel for appellant cannot blame the state for introducing the entire statement in evidence. In urging that be done counsel-for defendant did so without waiving their objections previously made to the particular statements therein. The objection previously made was upon the ground that defendant was unconscious at the time the statement was made. This ground of objection appears to have been thoroughly disproved. Counsel for appellant here do not contend the defendant was unconscious at that time.
Appellant contends the court erred in treating the statement as a confession. The difficulty with that contention is that there is nothing in the record to indicate that the court treated the statement as a confession. Clearly it was not a confession, but on the other hand it was exculpatory in character and was a statement tending to show the shooting was prompted or necessitated for the defense of defendant’s own person and would be generally classified as showing self-defense. The record indicates it was substantially the same as the testimony of the witness in chief when testifying in his own defense. It differed from his testimony only in certain details. There is no more reason to characterize it as a confession than to so characterize his testimony in chief when he was a witness. (See State v. Smiley, ante, p. 261; State v. Myers, 154 Kan. 648, 121 P. 2d 286, citing State v. Campbell, 73 Kan. 688, 85 Pac. 784; State v. Turner, 82 Kan. 787, 109 Pac. 654, and other authorities. See, also, Wigmore on Evidence, § 821; 22 C. J. S. 1420, 1422; 20 Am. Jur. 417, and cases there cited.)
The case is unlike State v. Seward, 163 Kan. 136, 181 P. 2d 478, cited and relied upon by appellant. In that case -there had been a definite confession of guilt. In State v. Hayes, 106 Kan. 253, 187 Pac. 675, cited by appellant, there was a written confession and the question was whether it was voluntarily made. The trial court held it was so made, and this court affirmed.
Complaint is made of the refusal of the court to give a requested instruction as to how the jury should consider the statement made by defendant on February 1 at the hospital. We see no occasion for a particular instruction upon that question, and the wording of the one requested might very well have been construed less favorably to the defendant than his counsel desired. Counsel cite no authority in support of the view that their particular instruction should have been given. The statement had been referred to by the county attorney only for the purpose of tending to impeach the witness. The court specifically instructed the jury with reference to how to consider impeaching testimony and stated to the jury:
. . it is your province to determine to what extent that fact tends to impeach . . . the credibilty of the witness ... or to detract from the weight to be given to his testimony.”
There was no objection to instructions given, but we have examined them with care and find that they fairly presented the issues to the jury and in all instances placed the burden of proof, beyond a reasonable doubt, upon the state. The jury was specifically told that if the state failed to prove the various elements necessary for a conviction to their satisfaction and beyond a reasonable doubt they should acquit the defendant. In view of what we have said about the instruction requested and in view of the instructions given we feel compelled to hold that the court did not err by refusing to give the particular instruction requested.
Doctor Joss was called as a witness in rebuttal and testified that he was on emergency call when appellant was brought to the hospital and to the emergency room, and attended him on that occasion; that it was his duty to take care of any patient who came into the hospital for emergency treatment who did not have a physician of his own or was in such condition that he could not call a physician; that he observed appellant on that occasion and observed the smell of liquor upon his breath; that the appellant vomited and the witness observed that the vomit smelled very strongly of alcohol. This testimony was objected to upon the ground that it was privileged. The objection was overruled and
“Our statute (G. S. 1935, 60-2805) relating to the privilege of the testimony of one’s physician pertains to matters germane to the physician’s diagnosis and treatment of the patients.” (Syl.)
That case was a prosecution for fourth degree manslaughter by culpable negligence in driving a car so that another person was killed. The defendant and his wife were injured in the collision and were taken to a hospital, where the doctor treated both of them, for which treatment he presented a bill, which was paid. It was held this “did not render the doctor or his nurse incompetent to testify, over appellant’s objection, that they observed him while he was at the office and that in their opinion he was under the influence of intoxicating liquor.” The authorities supporting the court’s decision are set out in that opinion and the same are referred to here as supporting our conclusion in this case. The Townsend case, with others, is cited in 58 Am. Jur. 243, in support of the text stating the general rule in harmony with our decision. Counsel for appellant cite and rely upon Linscott v. Hughbanks, 140 Kan. 353, 37 P. 2d 26; but in that case the physician’s evidence sought to be introduced clearly related to diagnosis and treatment. That was so ruled in the Townsend case, swpra (p. 986).
Belatedly, in their brief (not in their abstract) counsel for appellant assigned as error the alleged abuse of discretion of the trial court in permitting the county attorney to continue as an attorney in the case after he had testified before the court (not in the presence of the jury) concerning the circumstances under which the statement was made at the hospital on February 1. When the trial of the case was resumed before the jury no objection was made to the county attorney continuing to appear in the case on behalf of the prosecution. Neither was the question raised in any other manner in the trial court. Hence, counsel for appellant are not in position to have it considered now. More than that, counsel for defendant had questioned the propriety of the county attorney taking the statement. Under the circumstances it was appropriate for the county attorney, either by his testimony or by a statement before the court, to explain the circumstances under which this statement was made. There was no objection to his doing so.
We find no error in the record. The judgment of the court below is affirmed.