105 Kan. 536 | Kan. | 1919
The opinion of the court was delivered by
The appellant was convicted of grand larceny in stealing and carrying away a Holstein calf, about one day old, which was the property of A.' W. Garvin.
The contention that the court erred in refusing a change of venue is not sustained by the record. The attempt to show prejudice against the appellant in the minds of the inhabitants of Douglas county was so weak that the state offered no
“It is contended by counsel that the plaintiff in this case is insane. It is also contended that if these parties are divorced they will remarry again within one year. Concerning this I have to say, that if this woman should remarry this man and again live with him within one year, that of itself would be the strongest evidence of her insanity that I have seen.”
The remark was doubtless based upon disclosures in the divorce case. It did not establish prejudice. See The State v. Tawney, supra, where it was held that unfavorable comment of the court in denying a motion for a new trial in a former trial of the same case was insufficient as a ground for reversing a decision refusing a change of venue. (See, also, The State v. Bohan, 19 Kan. 28.)
The cases cited also furnish a complete answer to appellant’s contention that prejudice in the mind of the judge was established by a statement in overruling the motion for a new trial, to the effect that if the jurors had heard the appellant’s little boy testify in the divorce case how appellant had tried to teach him to steal they would not have been out so long agreeing upon a verdict convicting him of stealing the calf. The qualifications of a judge to sit in the trial of a case are different from those required of a juror. The fact that the judge may believe the accused guilty of the crime charged is not sufficient to show prejudice, for two reasons: he is not the trier of the facts; and his legal training and experience enable him to pass upon the admissibility of evidence and to give the proper instructions regardless of his own belief as to the guilt or innocence of the accused.
The testimony of the state showed that Garvin operates a dairy farm north of Lawrence. On September 4, in the after
The appellant, Kagi, was in the dairy business, and lived about four miles north and east of the Garvin pasture. On the 6th of September, Morris, Garvin’s manager, went to Kagi’s place on other business, and found in Kagi’s henhouse a small calf bearing the same marks as the one Garvin had lost, and not more than two days old. On the day following, Garvin and Morris went to Kagi’s place and demanded the calf. Kagi told them to take it if'it was theirs.
On the trial appellant made a statement at much length in explanation of his possession of the calf. He testified that he owned a Holstein cow which he expected would drop a calf about that time, and that the last place he had seen his cow before she came up to the barn with the appearance of having delivered a calf was at a nook or corner of his pasture, which was cut off from the rest of the pasture by a certain draw, and that the way she acted indicated that she had hidden the calf up there somewhere, and that he finally found it there, and that it was the calf taken from his henhouse by Garvin. He admitted that on September 4 he stopped on the side of the road by Garvin’s farm, near the place testified to by plaintiff’s witnesses, and said he did so for the purpose of fixing a loose burr on his wagon and to get a switch to use on his horses; that he procured a stick just outside the pasture fence, and stepped one foot on the “little rise” in the ground near the fence; and that he saw no cow on Garvin’s farm at that time. In explaining why he thought it was possible that
One contention urged is that the evidence was insufficient to justify the verdict. We think it was amply sufficient. Besides, the trial court heard and saw the witnesses and approved the verdict. (The State v. Mumford, 70 Kan. 858, 79 Pac. 669.)
Complaint is made of the following instruction:
“Some evidence has been introduced tending to show that after the time that it is claimed the property of Mr. Garvin was stolen, it was found in the possession of the defendant. Touching this branch of the case, I have to say that the unexplained possession of stolen personal property shortly after the same is stolen, is prima facie evidence that the possessor is the thief. In this case, it is for the jury to say from the testimony, First, whether the personal property described in the information was stolen, and if it was stolen, was it found in the possession of the defendant recently thereafter, and if it was so found, is it now explained or unexplained by the defendant.”
The instruction states the rule of evidence in criminal cases very fairly, indeed, to both the- appellant and the state. The instruction is not nearly so strong against the appellant as one which was held not to be erroneous in The State v. White, 76 Kan. 654, 92 Pac. 829, and which in so many words charged that the burden of explaining the possession was upon the defendant, “and if unexplained, or if his explanation is not satisfactory, it is sufficient of itself to warrant a conviction.” (p. 663.)
The appellant complains that he was not permitted to offer evidence to show the value of the stolen calf. There was no error in this. Under section 121 of the crimes and punishments act (Gen. Stat. 1915, § 3448), the larceny of any “neat cattle” is made a felony without respect to the value of the animal stolen. It was unnecessary for the state to establish that the calf possessed any value; and the only effect of the proof offered by the appellant would have been to confuse the jury upon a matter not involved in the issues.
“The affidavits add nothing to and take nothing from the verdict, and it is to be interpreted precisely as if the affidavits had not been filed.” (The State v. Johnson, 99 Kan. 850, 851, 163 Pac. 462.)
The judgment is affirmed.