State v. Flowers, 50 P. 938

Allen, J.

The defendant was charged with breaking into a chicken house, within the ‍​‌​​​​​​​‌​‌​‌‌‌‌​‌‌‌‌‌​​​‌​‌​​‌​‌‌​​​‌‌‌​‌‌​‌​​‍curtilage of the dwelling оf Charles McCoy, in the nighttime, and stealing therefrom fourteen-chickens. After he was arrested, he was taken before one of the city courts of Kansas City, where a preliminary examination was held, as a result of which he was required to give bond for his appearance before the District Court to answer the charge against him. To the information there filed he interposed a plea in abatement. On the trial of the issue raised on the plea, it was admitted that, at the preliminary examination, the defendant requested ‍​‌​​​​​​​‌​‌​‌‌‌‌​‌‌‌‌‌​​​‌​‌​​‌​‌‌​​​‌‌‌​‌‌​‌​​‍the clerk of the court to take down the testimony in writing; that he took it down in shorthand but did not transcribe it. Section 7 of chapter 107 of the Laws of 1897, creating two city courts in Kansas City Township, prоvides that “in all preliminary examinations held before said judges in cases of persons accused of the commission of a felony, it shall be the duty of said clerks to take down аll the testimony in writing and file the same with the papers in the case.”

^ , „, no™roundfOTy abatement,when. It is claimed that the discharge of this duty by the clerks is one of the requisites of a valid preliminary examination, and that withоut it the District Court had no jurisdiction to put the accused on trial. The statute is plain in its terms, and it is dоubtless the duty of the clerk to comply requirements. So far as his action is concernеd, the statute is mandatory. His duties are merely clerical. ‍​‌​​​​​​​‌​‌​‌‌‌‌​‌‌‌‌‌​​​‌​‌​​‌​‌‌​​​‌‌‌​‌‌​‌​​‍The jurisdiction of the District Court deрends on the finding and order of the judge based on the testimony taken before him, and not on the action of the clerk. In case of an examination before a justice of thе peace in any other township in the State, the defendant would have no right to insist on hаving the testimony reduced to writing, and it can hardly be presumed that the Legislature -intended to mаke the performance of this duty a jurisdictional matter in ‍​‌​​​​​​​‌​‌​‌‌‌‌​‌‌‌‌‌​​​‌​‌​​‌​‌‌​​​‌‌‌​‌‌​‌​​‍preliminary examinations befоre the city courts. The plea was properly overruled.

2. Statements in presence of accused admissible, when. Complaint is made of thе admission of the statements of Ankerson, who was jointly charged with the 'defendant, made in the presence of Flowers, as to how they got into the chicken house. It is claimed that Flowers, Ankerson and Taylor were all under arrest and in confinement at the time of the conversation, and that the defendant had a right to keep silent, no matter what either of his сodefendants might say. A case of this kind may be imagined where it would seem a harsh rule to hold the defendant bound by the statements of another person accused of the same сrime. The testimony before us, however, does not present the case of a defendant who chose to keep silent. Flowers voluntarily ‍​‌​​​​​​​‌​‌​‌‌‌‌​‌‌‌‌‌​​​‌​‌​​‌​‌‌​​​‌‌‌​‌‌​‌​​‍took part in the conversation and admitted the larceny of the chickens. He also testified at the trial that the threе persons arrested took them from the chicken house, which he claimed was open when they went to it. There is nothing showing that he was urged to speak when he wished to be silent. A сonversation in which he took part and wdiich was not forced on him by duress, is clearly admissiblе, and all that was said by all the persons who took part in it may be shown. It is said that this was the only proof of the breaking ; but there is abundant evidence, given by other witnesses, showing that the door of the chicken house was .closed and fastened on the night of the larceny.

s Evidence of neTsnS^dSii On behalf of the defendant, an attempt was made to prove by his mother that his mind was weak, that hе was easily influenced and liable to be led into wrongdoing by, others. This testimony was excluded. It wаs not claimed that he was either insane or idiotic, nor was it pretended that he did not undеrstand the nature of the transaction in which he was engaged. Whenever moral weakness or an uncontrollable propensity to do wrong is accepted as an exсuse for crime, there will be little room for conviction of offenders. No person оf moral strength and a well-balanced mind commits crime. All wrong-doing is the result of ignorance and mental and moral defects. Yet society must protect itself and restrain the criminal сlasses. The testimony offered by the defendant would not have availed him if admitted, and no error was committed by its rejection.

The remarks of the county attorney, of which complaint is made, do not appear to have been objected to at the time, and are hardly such as would be likely to prejudice the jury against a defendant whose guilt was not clearly shown.

No error appearing in the record the judgment is affirmed.

Case Details

Case Name: State v. Flowers

Court Name: Supreme Court of Kansas

Date Published: Nov 6, 1897

Citations: 50 P. 938; 58 Kan. 702; 1897 Kan. LEXIS 167; No. 10911

Docket Number: No. 10911

Court Abbreviation: Kan.