29 Kan. 532 | Kan. | 1883
The opinion of the court was delivered by
The defendant was convicted in the district court of Trego county of the crime of petit larceny, and from such conviction has brought his appeal to this court. He alleges as error, first, that the district court erred in overruling his. application for a change of venue. This application was based on the ground of an alleged prejudice on the part of the inhabitants of Trego county. The application was both supported and opposed by many affidavits, and the question is, whether upon the affidavits such a showing of prejudice was made as icompels us to reverse the decision of the trial court. The statute under which the' case of Smith v. The State, 1 Kas. 365, was decided hás been changed, and the change of venue no longer rests upon the mere affidavit of the defendant. (Comp. Laws 1879, p.752, § 177; The State v. Horne, 9 Kas. 119; City of Emporia v. Volmer, 12 Kas. 622; The State v. Bohan, 15 Kas. 407; The State v. Adams, 20 Kas. 311.) The facts stated in support of the application are substantially, that the prosecuting witness is a local preacher and treasurer of the county, and by reason thereof, possessed of great influence; that he has given his unqualified opinion that the defendant is guilty of the crime charged; has publicly ex-expressed a determination to convict the defendant, even though it cost him a large portion of his salary; that another party, who was a witness on the preliminary examination, and assisted in the search for the property alleged to have been stolen, has caused certain articles to be published in The Wahéeney World, a paper published and of general circulation in said county, reflecting on the defendant and his witnesses and the methods employed by his counsel. The articles referred to are attached to the application. We have examined these articles, and find in them nothing more than ordinary newspaper accounts of an alleged crime, the arrest of the party charged,
Again, it is claimed that the court erred in overruling a question put to a juror on his voir dire. We think the question was competent and relevant, and should, not have been overruled; unless it be true, as suggested by the state in its brief, that the examination of the juror had been unnecessarily protracted and accompanied by needless repetitions. The record, however, contains only this single question; and that being the only one, we think the court should have permitted it. The- record also shows that this juror was one who was finally sworn and sat in the trial of the case. But the record
Again, it is claimed that the court erred in permitting the state to prove in the first instance that the defendant and his parents had the reputation of being thieves. That such testimony was incompetent is beyond dispute. (The State v. Thurtell, ante, p. 148.) Nevertheless, the error in its admission cannot avail the defendant, and this because no exception was saved to the ruling of the court admitting it. Further, it appears that after its admission the defendant moved to strike it out, and. thereupon the court instructed the jury to disregard all of such testimony.
Again, error is alleged in the following ruling of the court: As heretofore stated, the charge in this case was the larceny of a few sacks of wheat. The testimony disclosed that the prosecuting witness liad raised one hundred and ten bushels of wheat, that twenty-four bushels thereof were alleged to have been stolen, and the balance, eighty-six bushels, was sold and.delivered to a Mr. Rhett, a grain merchant at Ellis; that eighteen bushels of wheat were taken from the defendant’s cellar on a search warrant, and were at the time of the trial in the possession of the justice of the peace who issued the search warrant. This justice lived about fifteen miles from the place of the trial. Now in the midst of the trial the defendant moved the court to send the jury out to examine the wheat at the justice’s, or to send an officer with compulsory process to bring in the wheat, and stated that during the absence of the jury or the officer he would secure the attendance of Mr. Rhett as a witness. This was for the purpose of showing that the wheat found in defendant’s cellar was in weight, grade and quality unlike that sold to Mr. Rhett. The court declined to delay the trial for this purpose,'and of this action the appellant now. complains. ■ We see no error in the ruling. While a court may send a jury out to examine;the place in which
The only other question we deem of sufficient importance to require special notice arises on the motion for a new trial. It is claimed that the verdict was not the just expression of the convictions of all the jurors, but was simply a compromise between those who believed the defindant guilty of grand larceny and those who believed the defendant innocent of any crime. In support of this motion the affidavits of the bailiff and one of the jurors were filed. In regard to the affidavit of the juror, it may be remarked that the affidavits of jurors are seldom received to impeach a verdict, though often to* sustain it; (The State v. Horne, 9 Kas. 132; Perry v. Bailey, 12 Kas. 139;) and they are never received for -the purpose of impeachment to show anything that inheres essentially in a verdict such as the personal opinion of the jurors. Stripping these affidavits of all that show mere personal convictions of. the juror, and they show simply this: that at the close of the second ballot, which resulted in a vote of eleven for conviction and one for acquittal, the one juror who voted for acquittal said that he was surprised at the vote; that he believed the defendant innocent, but was willing to agree on a verdict of petit larceny, which on the next ballot was accepted by all. The value of the property charged to have been stolen does not appear to have been shown beyond dis
