81 P. 494 | Kan. | 1905
In an information containing two counts O. W. Finch was charged with manslaughter in the third and fourth degrees for the killing of M. Brooks. He was found guilty of manslaughter in the fourth degree, as charged in the second count. In his appeal numerous errors are assigned, some of which are not deemed to be material. The information, which closely follows the language of the statute, is challenged, but it clearly appears to be sufficient.
After the opening statement had been made in behalf of the state the defendant asked that the county attorney be required to elect under which count of the information he would rely for a conviction. The motion was denied, and without error. An election was required at the close of the testimony for the state, and the county attorney then elected to stand on the charge in the second count. That is an appropriate time to make an election when an election is necessary, and certainly there is no ground to complain that it was not made earlier.
The questions asked of the witness for the state on cross-examination as to whether the shooting was accidental involved conclusions related to one of the main issues submitted to the jury, and hence were properly excluded.
Nor was any error committed in the admission of the testimony as to conversations with the defendant in regard to his having and handling a gun before the shooting, and the use he intended to make of it. It went to the culpable negligence charged against him.
The principal complaint of the defendant is of the admission of testimony given by himself at the coroner’s inquest. The stenographer who took the testimony was introduced as a witness, and after qualifying she read from her notes the testimony that the defendant had given. There was an objection that her
The withdrawal of testimony erroneously admitted, coupled with an instruction to the jury to disregard it, will in most cases cure the eror. If, however, the testimony is very material, and of a kind calculated greatly to influence and prejudice the jury, a withdrawal of it ‘with an instruction to overlook it may not remove the prejudice or cure the error. Assuming that the effect of the evidence was not removed by its withdrawal, we find nothing in the record showing that it was inadmissible.
Like others, the defendant was subpoenaed as a witness to testify at the inquest as to the cause of Brooks’s death. For aught that appears he may have been anxious and swift to testify. There is not a hint in the record that he was led to testify through any inducement of promised favor, or by reason of any fear,' menace, or duress. Ordinarily, all that a defendant has said pertinent to the subject of inquiry may be received in evidence against him. The exceptions to this rule are when admissions have been extracted from him by means of promises or threats, or where testimony given or statements made have been compulsory or involuntary. The test of admissibility in this and like cases is, Were the statements made voluntarily and without compulsion? In this instance they were made in an inquiry where the defendant was a witness and not a party, and where he might have claimed the privileges of a witness. He was not in
' In an early New York case the subject was examined and' the cases reviewed, and it was held that upon a trial for murder statements made by the prisoner as a witness at a coroner’s inquest upon the body of the deceased, when the witness was not under arrest or accused of the crime, were admissible against him. (Hendrickson v. The People, 10 N. Y. 13, 61 Am. Dec. 721.) In a later case a witness at a coroner’s inquest who appeared in response to a subpoena testified, and on his subsequent trial the testimony was admitted against him, although he knew at the time he testified that he was under suspicion of having committed the
In People v. Molineux, 168 N. Y. 264, 61 N. E. 286, 62 L. R. A. 193, the defendant was charged with murder. At an inquest over the body of the deceased the defendant testified in pursuance to a subpoena issued by the coroner, and he was threatened with punishment if he refused to testify. At the close of the inquest he was arrested, charged with the crime. The court said:
“When a person is called upon to testify at a coroner’s inquest, convened to inquire into a crime, for the- commission of which such person is then under arrest, or upon which he has been formally accused, he occupies the same position, and he has the same rights, as though he were before an examining magistrate. (People v. Mondon, 103 N. Y. 211, 8 N. E. 496, 57 Am. Rep. 709.) So, on the other hand, if the person who testifies at the inquest does so simply as a witness, he has none of the rights or immunities of a party. This is the foundation of the rule which is now firmly established in this state — that when a person testifies at an inquest as an accused or arrested party, his testimony cannot be used against him upon a subsequent trial of an indictment growing out of the inquest, unless his testimony has been voluntarily given after he has been fully advised of all his rights and has been given an opportunity to avail himself of them. (People v. Chapleau, 121 N. Y. 267, 24 N. E. 469.) The logical and necessary corollary of that part of the rule stated is that when a person testifies simply as a witness and not as a party, his testimony can be used against him even though he is afterward indicted and tried for the commission of the crime disclosed by the inquest.” (Page 331.)
Other authorities supporting this rule are: Wilson v. The State, 110 Ala. 1, 20 South. 415, 55 Am. St. Rep. 17; Jones et al. v. The State, 120 id. 303, 25 South. 204; State v. Coffee, 56 Conn. 399, 16 Atl. 151; State v. Gilman, 51 Me. 206; Schoeffler v. The State, 3 Wis. 823; Williams v. The Commonwealth, 29 Pa. St. 102; Newton v. The State, 21 Fla. 53; Kirby v. The State,
Some of the courts have taken a different view. (The State v. Young, 119 Mo. 495, 24 S. W. 1038; State v. Young, 60 N. C. 126; State v. Senn, 32 S. C. 392, 11 S. E. 292; State v. O’Brien, 18 Mont. 1, 43 Pac. 1091, 44 Pac. 399.) It appears from the opinion of the supreme court of Missouri, in The State v. Young, supra, that the defendant was an ignorant German boy, and that his examination, upon its face, showed that its purpose was to elicit from him criminating admissions, and the examination was conducted as if he were the defendant in a preliminary examination. The same court, in The State v. Wisdom, 119 Mo. 539, 24 S. W. 1047, held that statements voluntarily made by a witness before .a coroner’s jury with a view of casting the guilt upon another were admissible against him on his trial for murder. In State v. Young, 60 N. C. 126, the witnesses were arrested and brought before the coroner, and while in custody statements were obtained from them implicating them in the homicide.
Attention is called to the case of The State v. Taylor, 36 Kan. 329, 13 Pac. 550, but there the testimony at the coroner’s inquest was admitted because it did not appear to be involuntary. In the course of the opinion it was said that if the defendant was compelled by subpoena or otherwise to give his testimony before the coroner’s inquest, and there was duress, it should be excluded; but that case is not an authority that testimony given under a subpoena and without compulsion and duress is inadmissible.
Testimony at a coroner’s inquest as to the cause of a death, given by a witness who is not accused nor under arrest, is not deemed, to be involuntary merely because he testified in response to a subpoena. Of course, if it appeared that he testified as a party rather than as a witness, or if he had been induced to
The criticisms of the instructions have been examined, and it is found that the charge given by the court fully covered the issues in the case and fairly presented the law applicable to them. Some of those requested and refused were inappropriate, but it appears that the pertinent principles of law in most of them were included in the instructions given. No error is seen in any of the rulings charging the jury, nor do we see any necessity for an extended review of the instructions.
After the jury had been out a considerable time they were recalled and inquiry was made by the court as to the probability of an agreement. The judge inquired if the disagreement was because of a failure to understand the instructions, and also if they disagreed as to the testimony. They informed the court that there was no misunderstanding as to the instructions, but that they did not agree as to the testimony. The judge then remarked: “Mr. Foreman, you may step to my desk and indicate with pencil and paper the two numbers that show how the jury stand at this time; not which side they are for, but just write the two numbers.” After this was done the jury were directed to return to their room for further deliberation. Of this action complaint is made. It will be observed that there was no admonition urging an early verdict, nor anything approaching coercion. Evidently the court was seeking information to determine whether there was reason to hope for an agreement upon a verdict, and there was no impropriety even in the action taken.
An attempt was made to impeach the verdict by the
We have also examined the testimony on the motion for a new trial with reference to the conduct and statements of .jurors Thompson and Griffin, and find nothing which disqualified them or indicated that the verdict was reached by improper influences.
Finding no prejudicial error, the judgment is affirmed.