107 Kan. 568 | Kan. | 1920
The opinion of the court was delivered by
James McDonald was prosecuted jointly with Dan Ryan for the offense of burning several stacks of rye owned by McDonald, which had been insured against loss by fire, and that it had been done with the intent to defraud and prejudice the insurance company. On a separate trial McDonald was found guilty of arson in the third degree and from the judgment of conviction he appeals:
Dan Ryan was a witness in behalf of the state, and his evidence was to the effect that he had set fire to the stacks upon the request and by the procurement of the defendant, who agreed to give him fifty dollars for the accomplishment of the purpose; that defendant desired to use the insurance money to
There is a complaint that error was committed in admitting the testimony of Ryan as to the arrangement made for the burning of the rye as he was an accomplice and conspirator, and that the witness having confessed himself to be a coqonspirator, he was not a competent witness to prove the conspiracy. The crime charged was not that of conspiracy but of arson. The defendants were jointly charged with that crime, and the evidence offered was to the effect that the defendant had aided and abetted the offense, and in fact had procured it to be committed. Under the statute “any person who counsels, aids and abets in the commission of any offense may be charged, tried and convicted in the same manner as if he were a principal.” (Crim. Code, § 115, Gen. Stat. 1915, § 8029.) The defendant having been charged with arson which he advised and procured another to commit was properly tried as if he were a principal, and the testimony of one through whom he acted, even if it had not been corroborated, was competent. In The State v. Patterson, 52 Kan. 335, 34 Pac. 784, it was decided that the uncorroborated testimony of an accomplice is legally sufficient to sustain a verdict of guilty, but of course the credit to be given to the testimony of an accomplice is a matter for the determination of the jury. And the same rule was applied in The State v. Bratcher, 105 Kan. 593, 185 Pac. 734. It may be said, however, that considerable evidence was offered corroborating the testimony of Ryan in several important features of the offense.
There is complaint of the exclusion of testimony to the effect that Ryan was a member of the I. W. W.; that there was a stranger in the neighborhood at the time of the burning, suspected of being a member of that organization, and that Ryan had been seen talking with him. Obviously this was too remote to be of any evidential force, either to prove that the offense was committed by the stranger or to impeach Ryan.
Some declarations made by Ryan in the absence of the defendant were erroneously admitted, but upon the objection of
Another assignment is that the court erred in giving the following instruction:
“. . .You are instructed that under the law of Kansas, any one who aids, abets, or assists another or others in the commission of any crime, either by conspiring or confederating together, counseling and advising in the commission of such crime and preparation thereof, is equally guilty with the one actually committing the crime, and .you are therefore instructed in this case, that should you find that the defendant conspired and confederated with Dan Ryan for the commission of the crime alleged in the information, and that he did in any way aid, assist, or abet in its commission, either by counsel or concealment, then he is guilty as though he had himself, without assistance, committed the crime.”
It is urged that the word “aid” is open to more than one interpretation, and therefore, it should have been defined by the court. It is doubtful if the meaning of the term could have been made clearer or aided in any way by a definition. There was no likelihood that the jury would infer that he aided in the commission of arson by doing some innocent act towards its accomplishment. If there was anything in the evidence indicating a necessity for such definition, it was the duty of the defendant to request an instruction on that feature of the case, but no such request was made.
Exception is also taken to that part of the instruction in which it was said that if the defendant did in any way aid, assist or abet in the commission of the offense, “either by counsel or concealment, then he is guilty as though he had himself, without assistance, committed the crime.” The objection is that the word “concealment” was not defined. The prosecution did not offer evidence as to, or rely upon concealment of the crime, but rather that the defendant directly bargained for and procured the burning of the rye. There was nothing in the evidence which required a definition or even mention of con
Complaint is made of instruction six in which the jury were told in effect that if the defendant requested and procured Ryan to burn the rye with the intent to defraud or prejudice the insurance company, and in pursuance of which he did burn it, they would be justified in finding the defendant guilty. It is said that the court did not tell the jury that such belief must be based on evidence and established by evidence beyond a reasonable doubt. In other parts of the charge the court plainly instructed the jury that every element of the offense must be established by the evidence and proven beyond a reasonable doubt. This general admonition was made applicable to every feature of the prosecution and every ingredient of the offense, and there was no occasion for repeating it in every instruction given. Although complaint is made we find no inconsistency between this instruction and the following ones as to motive or intent.
Nor is there any ground for the complaint that in the thirteenth instruction the court took from the jury the right to determine who was principal and who an accomplice, since under the law both are regarded as principals, and besides, the testimony, if true, showed beyond a peradventure that the defendant was the principal who procured Ryan to act as his tool in the accomplishment of his criminal purpose.
Defendant also complained of the instruction relating to circumstantial evidence. The jury were told that some of the evidence in the case was-circumstantial and that such testimony is, many times, as conclusive in its convincing power as the direct and positive evidence of eyewitnesses; that it should have its fair and just weight, and if, when all taken together and candidly weighed, it convinces the guarded judgment of the jury beyond a reasonable doubt of the defendant’s guilt, a conviction might rest upon such testimony alone. The court added that in order to convict on circumstantial evidence alone, not only all the circumstances must all concur to show the guilt of the defendant, but they must be inconsistent with any other rational conclusion. It is said that by this instruction the jury were informed they might convict the defendant upon the cir
Other objections are made to rulings on evidence and to the instructions, but we find no substantial error in them, nor anything which requires special comment. The evidence is abundantly sufficient to sustain the verdict, and finding no material error in the proceedings, the judgment is affirmed.
