40 Kan. 311 | Kan. | 1888
Lead Opinion
This is a criminal prosecution upon an indictment in which it is alleged that the defendant, Hugh H. Fry, gave aid to C. C. Parker for the purpose that Parker might avoid a criminal prosecution. The defendant was convicted and sentenced, and he now appeals to this court. The counsel for the state urge that this court cannot enter into any examination of the merits of the case, for the reason that that portion of the record brought to this court which purports to be a bill of exceptions, is not a bill of exceptions. And this they urge for the alleged reason that the supposed bill of exceptions was not allowed by the court or made a part of the record, but was a mere chambers order. Now this bill of exceptions purports in every respect to be a bill of exceptions; and at its close the following language is found:
“ Wherefore, the said defendant presents this his bill of exceptions to the court, and prays the court to allow, sign and seal the same, and make it a part of the record in this case. And the court, on this 21st day of April, 1888, having the above bill of exceptions presented, and having examined the same, finds the same to be a true and correct bill of exceptions in the above-entitled cause, hereby allows, signs and orders the same to be placed on file with the pleadings in said cause, and the same is hereby made a part of the record in this case.”
This bill of exceptions is signed by the judge of the court, and filed by the clerk; and it purports to be the action of the coui't, and not merely that of the judge at chambers. The only thing lacking to make this bill of exceptions perfect in every respect, is a journal entry by the clerk showing that the bill of exceptions was allowed by the court and made a part of
The principal facts of this case, briefly stated, are substan
As before stated, she told her mother on December 16,1887, which was the next day after they had been at Dr. Parker’s office, of what had occurred between her and Dr. Parker during their night’s ride in October. Her father was away from home at the time. That morning he had taken a load of corn for Fry to Girard. He returned just after noon. On his way home he saw Dr. Parker’s team at John Doctor’s. When he returned home the gild’s mother told him what the girl had told her. According to the testimony of Andrew W. Fry, who was near by at the time, the girl’s father then made threats of killing Dr. Parker. The girl’s father, however, denied this, or partially denied it. On the same day and in the afternoon of that day, the girl’s father, Brown, went to the defendant Fry’s house and communicated to Fry what had occurred between Dr. Parker and his daughter. Fry and
If the evidence in this case is sufficient to send a man to the penitentiary, then no man’s liberty is safe. But before commenting upon the evidence, we shall consider some preliminary matters. The statute upon which this prosecution is based reads as follows:
“Sec. 288. Every person who shall be convicted of having concealed any offender after the commission of any felony, or of having given to such offender any other aid, knowing that he has committed a felony, with the intent and in order that he may escape or avoid arrest, trial, conviction or punishment, and no other, shall be deemed an accessory after the fact; and upon conviction shall be punished by confinement and hard labor not exceeding five years, or in the county jail not exceeding one year nor less than six months, or by fine not less than four hundred dollars, or by both a fine not less than one hundred dollars and imprisonment in a county jail not less than three months.” (Comp. Laws of 1885, eh. 31, §288.)
It is not claimed that the defendant in this case, Pry, ever “concealed” the offender, Parker; but it is claimed only that he gave to such offender “other aid,” and this “other aid” claimed to have been given was merely information claimed to have been given by Pry to Parker that a warrant was about to be issued for Parker’s arrest. This “ other aid ” was mere
But passing over all these matters as of but little consequence, and supposing that Fry may have said something on the day that he was at Parker’s office that caused Parker to abscond, still is Fry guilty ? As before stated, there is no evidence that Fry ever communicated a word to Parker or to anyone else that would render Fry in the least guilty; and Fry testified on the trial that he did not so communicate any such thing, and Fry’s evidence in this respect is uncontradicted. The fact that Fry wanted additional security, may, with the other facts of which Parker had knowledge, have given Parker the alarm, and may have caused Parker to leave the county; but that would not render Fry guilty of any offense. Suppose that when Fry went into Parker’s office Fry had even stated to Parker that he (Parker) was about to get into trouble, or that a criminal prosecution was about to be commenced against him, or that a criminal warrant was about to be issued for him, or that he was about to be arrested, would even that have made Fry guilty of any offense unless Fry intended at the time to thereby enable Parker to escape ? If Fry went to Parker’s office, and to see Parker, only for the purpose of obtaining additional security on the notes on which Fry and his wife were surety, and only incidentally and in connection with his business communicated this other matter to Parker, then Fry would certainly not be guilty of any offense. If Fry had gone into Parker’s office for any legitimate object, and in accomplishing that object had incidentally stated to Parker that a
“A few facts, or a multitude of facts proven, all consistent with the supposition of guilt, are not enough to warrant a verdict of guilty; but in order to convict on circumstantial evidence, it is held necessary not only that the circumstances all concur to show that the prisoner committed the crime, but that they all be inconsistent with any other rational conclusion.” (Horne v. The State, 1 Kas. 42, 72.)
In the present case the facts proved are not only not inconsistent with the defendant’s innocence, but the uncontradicted evidence of the defendant is wholly inconsistent with his guilt. There is no evidence of any words ever being uttered by Pry,
It is claimed on the part of the defendant that the court below committed many errors in the admission of evidence and in giving instructions, but as we believe the verdict and judgment in this case are wholly unsustained by the
Believing the evidence to be' wholly insufficient to sustain the verdict and judgment, *the judgment of the court below will be reversed.
Concurrence Opinion
Conceding, for the purposes of this case, that Fry imparted the alleged information to Parker; and conceding that § 288 of the act regulating crimes and punishments is broad enough to embrace within the words “any other aid,” the imparting of information, I cannot, upon the evidence preserved in the record, consent to the affirmation of the sentence imposed, because, to my mind, it clearly appears that if Fry imparted the alleged information to Parker, he did not do so solely that he might escape justice. There is no positive evidence showing, or tending to show, that Fry imparted any information or warning to Parker for the purpose of aiding him to escape.
If we roam over into the possibilities and the uncertainties of the case, and say that the acts of Fry and Parker indicate that Fry gave him the alleged information or warning, the answer to all this is, that after Fry had been told by Brown of the ravishment of his daughter, he had ample reason to see Parker at once on account of their business matters, and for his own security. If he had omitted to see Parker, after being informed of the trouble he was in, he would not have acted as an ordinary prudent business man. The business