33 Kan. 23 | Kan. | 1885
The opinion of the court was delivered by
This was a criminal prosecution under § 13 of the prohibitory liquor law of 1881, in which prosecution the defendant, James Hughes, was charged with keeping and maintaining a common nuisance, by keeping for sale and selling intoxicating liquors at a certain place in the city of Solomon, Kansas, in violation of the said prohibitory liquor law. The case was tried before the court and a jury, and the jury found the defendant guilty as charged. He was then sentenced to pay a fine of $250 and the costs of the prosecution, to stand committed to the county jail until such fine and costs were paid, and to give a bond in the sum of $1,000,
“ If defendant, Hughes, would pay him $50, he would run away and not be here to testify against him; that for that amount he would skip out, and all the sheriffs and deputy sheriffs in the state could not catch him.”
Dougherty testified, among other things, that Kestetter in a conversation with him, stated as follows:
“That if defendant, Hughes, would give him $50, he would skip out, and not be here to swear against him, and that Hughes had better put up, or he, Kestetter, would stick him.”
For the purposes of this case, it is not necessary to give any of the testimony of Lyda. Afterward, Kestetter was again introduced as a witness by the state, and in accordance with his previous testimony and denials, he then testified that the statements made by Joles and Dougherty were untrue; that he did not offer to “run away,” or to “skip out,” or to absent himself from the court for $50 or for any other sum, blit on the contrary, that both Joles and Dougherty attempted to bribe him by offering to pay him the sum of $125 if he
The question now presented is, whether this action on the part of the court constitutes material error or not. We must answer this question in the affirmative. The question as to whether the defendant was guilty or not, was not at all clear under the evidence. Much of the evidence, indeed, tended to prove that he was not guilty; and even with this decision on the part of the court as to the credibility of the witnesses and the weight of their testimony, the jury were ten hours deliberating upon their verdict before they arrived at the conclusion that the defendant was guilty. It may be that except for this decision on the part of the court, the jury would not have found the defendant guilty at all.
The claim on the part of the state that this decision on the part of the court did not constitute any material error, is twofold : First, that the whole thing was immaterial; and, second, that the court afterward rendered this decision harmless by giving the following instruction to the jury, to wit:
We think this claim on the part of the state is insufficient; for, even if the foregoing impeaching testimony was wholly incompetent in the case, still it was introduced in the case without objection, and the action of the court in deciding who told the truth and who did not tell the truth was highly prejudicial to the interests of the defendant, and the subsequent instruction given by the court to the jury would hardly render the previous action of the court harmless. Kestetter, it must be remembered, was one of the principal witnesses, if not the principal witness, against the defendant upon the merits of the case, and if he told the truth, there was sufficient evidence to sustain a conviction against the defendant; and the court in effect said he was a truthful witness. But such impeaching testimony was not incompetent. The defendant had a right to show the corrupt leanings and tendencies of the witness Kestetter with regard to the subject-matter of this particular case, after laying the proper foundation for the same as he did. ( Chamberlayne’s Best’s Principles of Evidence, § 644, p. 635; 1 Greenl. Ev., §459; Wharton’s Crim. Ev., §§476,477,488.) And when this was done, then the state had the right, within proper limits, to impeach the impeaching witnesses by introducing the testimony of Kestetter and the other witnesses, as it did, to show that the impeaching witnesses were unworthy of belief with regard to the particular matter concerning which they testified. All the foregoing testimony, however, was introduced without objection, and we cannot therefore treat it as wrongfully in the case, or as wholly immaterial in the case.
We think the aforesaid action on the part of the court constituted material error; and for such error the judgment of the court beloAv will be reversed, and the cause remanded for a new trial.