66 P. 1037 | Kan. | 1901
The opinion of the court was delivered by
The appeal in this case is from a judgment of conviction and sentence by the district court of Finney county for petit larceny. It is contended that the court below erred in refusing to give certain instructions; in giving others objected to by the appellant ; in overruling a motion for a new trial, and in rendering judgment and pronouncing sentence upon him.
“The supreme court may reverse, vacate and modify a judgment of a district court or other court, of record, except a probate court for errors appearing*813 on the record and in the reversal of such judgment or order may reverse, vacate or modify any intermediate order involving the merits of the action or any portion thereof. The supreme court may also reverse, vacate or modify any of the following orders, of a district court or other court of record, or a judge thereof, except a probate court: (1) A final order. (2) An order that grants or refuses a continuance ; discharges, vacates or modifies a provisional remedy ; that grants, refuses, vacates or modifies an injunction ; that grants ■or refuses a new trial; or that confirms or refuses to confirm the report of a referee, or that sustains or ovei’rules a demurrer. (3) An order that involves the merits of an action or some part thereof, but shall have no jurisdiction unless the amount or value in controversy exclusive of cqsts in civil actions exceeds one hundred dollars and in misdemeanors. And in cases involving the tax or revenue laws, or the title to real estate, or an action for damages in which ■slander, libel, malicious prosecution or false imprisonment is declared upon, or the constitution of this state, or the constitution, laws or treaties of the United States, and when the judge of the district or superior court trying any case involving less than one hundred dollars shall certify to the supreme court that the case is one belonging to the excepted classes.” (Gen. Stat. 1901, §5019.)
The contention of the state is that the clause limiting the jurisdiction of this court in civil actions includes within it appeals from convictions in misdemeanors ; that it is a positive denial of the jurisdiction of this court in such cases.
The different subjects of subdivision 3 of said act are inaccurately arranged. The limitation placed upon the jurisdiction of this court in civil actions is «disconnected from its qualifying clauses by the words “and in misdemeanors,” without reference to the unity of the sentence, and the clause is abruptly -ended by a period before,the sentence is completed.
Mr. Sutherland, in, his work on Statutory Construction, section 260, says:
“Legislative enactments are not any more than any other writings to be defeated on account of mistakes, errors, or omissions, provided the intention of the legislature can be collected from the whole statute. . . . Where one word has been erroneously used for another, or a word omitted, and the context affords the means of correction, the proper word will be deemed substituted or supplied.”
In the interpretation of statutes, the court will arrange and substitute, if necessary, to make the meaning clear. (Hamilton v. Steamboat R. B. Hamilton, 16 Ohio St. 428; Allen v. Russell, 39 id. 336.)
In Shriedley v. State of Ohio, 23 Ohio St. 130, 140, and in Albright v. Payne, 43 id. 8, 1 N. E. 16, it was said that, “in construing a statute, punctuation may aid, but does not control unless other means fail; and in rendering the meaning of a statute, punctuation may be changed or disregarded.” This rule has been adopted in this state. (Brook v. Blue Mound, 61 Kan. 184, 59 Pac. 273; Landrum v. Flannigan, 60 id. 436, 56 Pac. 753.)
To support the contention of the state, that this act expressly provided that this court should not have jurisdiction in such cases, would be to charge the legislature with having enacted an absurdity. It must be presumed that the legislature knew what the law then was, and if did not intend to confer jurisdiction on this court, in appeals from convictions in misdemeanors, it would not have referred to the subject at all. The only reason that can be offered for its reference to misdemeanors in the act is to authorize an appeal in such cases to this court. We think that is what was intended by this act, and it may be so read without doing violence to the rules of interpreta
“An order that involves the merits of an action or some part thereof, but shall have no jurisdiction unless the amount or value in controversy exclusive of costs in civil actions exceeds one hundred dollars. And in misdemeanors, and in cases involving the tax or revenue laws, or the title to real estate,” etc.
This would make sense and express the evident intention of the legislature. The statute will be so read. The motion to dismiss is overruled.
The court instructed the jury concerning the presumptions arising from the possession of recently •stolen property :
s incorrect-presumption “You are instructed that possession of the fruits ■of crime recently after its commission is prima facie ■evidence of guilty possession; and, if unexplained either by direct evidence or by the attending circumstances, or by the character and habits of life of the possessor or otherwise, it is taken as conclusive. Of course, it must be so recent after the time of the larceny as to render it morally certain that the possession could not have •changed hands since the larceny.”
This instruction cannot be sustained. Neither the ■possession nor unexplained possession of the fruits of a recent larceny is, as matter of law, conclusive evidence of the guilt of the possessor. They are facts which may be introduced in evidence, and it has been held by this court that, if the possession is immediate after the commission of the crime and unexplained, it is prima facie evidence of guilt, but nowhere have we been able to find an authority for saying, as matter of law, that it is conclusive. The unexplained pos•session of a subject of a recent larceny is prima facie evidence of the guilt of the accused, and is sufficient to authorize the jury in finding a verdict of guilty, but, as in all other circumstances, the jury is the exclusive judge of its conclusiveness.
Error is also predicated on the following instruction :
*818 i. Previous good charactor. *817 “You are further instructed that the evidence of previous good character is competent in favor of the party accused of a crime, as tending to show he would not be likely to commit the crime alleged against him ;*818 and in this case, if you believe from the evidence that, prior to the commission of the alleged crime, the defendant had always borne a good character for honesty and a law-abiding citizen among his acquaintances, and in the neighborhood where he lived, then it is a fact proper to be considered by you, with all the other evidence in the case, in determining the question whether the witnesses who have testified to facts tending to criminate the defendant have been mistaken, or have testified falsely or untruthfully ; and if, after a proper consideration of all the evidence in the case, including that bearing upon his previous good character, you entertain any reasonable doubt of the defendant’s guilt, then you should acquit him.”
The last part of the instruction is specific, and directs the attention of the jury to this character of evidence and its office. It was the evident intention of the court to inform the jury that when they should come to consider the question of whether the witnesses for the prosecution who testified to facts tending to criminate the defendant were mistaken or testified falsely, they might consider the evidence of previous good character; and that the evidence went only to the question of whether the witnesses for the prosecution were mistaken or wilfully falsified.
Evidence of previous good character is affirmative, and the better rule is that, in every prosecution where guilty knowledge or intention is of the essence of the crime, however conclusive the evidence of such guilt may appear, the defendant may introduce evidence of previous good character. Experience teaches us that one whose previous life has been one of rectitude and honesty is not likely to commit a crime. There are exceptions, but they are only exceptions. Evidence of previous good character goes to meet every phase of a case involving the guilty knowledge or intention
The judgment of the court below is reversed,