91 P. 1068 | Kan. | 1907
Lead Opinion
The opinion of the court was delivered by
This is an appeal from the conviction of G. H. McKinney for the larceny of a mule. He was brought to trial before the court and jury on June 14, 1906, and when the testimony was concluded, at 11:30 o’clock in the forenoon, the court adjourned until 1:30 in the afternoon, but overlooked the duty of admonishing the jury as to their- conduct during adjournment. When-the court reconvened the appellant objected “to any further proceedings in this case for the reason that at the adjournment of this court
It is true that the discharge of a jury after the trial has begun without an overruling necessity or without the consent of the defendant will ordinarily operate as a bar to further prosecution. Here, however, there was consent, or the equivalent of consent, by the appellant, and it is well settled that if a jury is discharged at the instance of the defendant himself he cannot set up that fact as a bar to a subsequent prosecution. It is argued by appellant that he only interposed an objection and did not express any consent or intend to waive any of his rights. He objected, however, to proceeding further in the case because of a disqualification of that jury. The discharge of the jury was the necessary result of sustaining his objection, and he has no right to complain that the court took the action which he invited.
In a similar case in Ohio a question arose as to the qualification of a juror after the beginning of the trial, and the defendant objected to proceeding further before that jury, specifically stating that he did not intend to waive any of his rights, but it was held that “the discharge of the jury first ''impaneled was the necessary result 'of sustaining the objection interposed by the defendant himself, and so did not take place without his consent, but was an act done at his own instance, and would not therefore operate as an acquittal,
In People v. Gardner, 62 Mich. 307, 29 N. W. 19, a defendant objected to a jury before whom he stood in jeopardy, and coupled with the objection a statement that he did not intend to waive any of his rights. When the jury were discharged at his instance he claimed that the discharge operated as an acquittal, but the court ruled that his action amounted to consent, saying:
“There were but two possible courses-for the court to pursue at the time this objection was made by the respondent: one was to go on, against the respondent’s objection, and try the cause before the jury then impaneled; and the other was to accede to the objection made and discharge the jury.
“The discharge of the jury, under the circumstances of the case, must be deemed to have been done upon the request of the respondent, and with his consent. He has no right to complain that his objection was sustained, and the discharge of the jury with his consent cannot be set up as an acquittal.” (Page 312.)
(See, also, Mercer v. McPherson, 70 Kan. 617, 79 Pac. 118; The State v. Hibbard, ante, p. 376, 92 Pac. 304; Commonwealth v. Sholes, 95 Mass. 554; Peiffer v. The Commonwealth, 15 Pa. St. 468, 53 Am. Dec. 605; Hughes v. The State, 35 Ala. 351; State v. Davis, 80 N. C. 384; State v. Coleman, 54 S. C. 282, 32 S. E. 406; Arcia v. The State, 28 Tex. App. 198, 12 S. W. 599; The Commonwealth v. Cook and others, 6 S. & R. [Pa.] 577, 9 Am. Dec. 465; Rex v. Stokes, 6 C. & P. [Eng.] *151; Kinlock’s Case, 1 Fost. [Eng.] 16.)
It is next argued that the evidence does not support the conviction. It seems that the testimony offered in behalf of the state is singularly meager — less, it appears, than was produced on the first hearing. There is little, if any, testimony connecting the appellant with the offense other than his possession of the animal soon after it was stolen. It was shown that some mules .had been kept in a pasture in Finney county. Mr. Williams, the owner, saw them in the pasture April 8,
Looking at the testimony of the defendant explaining how he came into possession of the mule, and measuring it as testimony is ordinarily measured, we cannot say that the recent possession of the stolen property was unexplained or that the scant testimony offered in behalf of the state is sufficient to uphold a verdict. The judgment is therefore reversed and a new trial awarded.
Dissenting Opinion
(dissenting) : I am unable to concur in the conclusion that the testimony is insufficient to support the verdict of the jury and the judgment of the trial court. The conviction, it is true, rests mainly, upon the recent possession of the animal by the appel
But if it could be said that the only matter for the jury to consider was the unexplained recent possession of the stolen property, the verdict cannot well be overturned. It has frequently been decided that the unexplained possession of property found to have been recently stolen is evidence from which a jury may infer that the person in whose possession such property is found is guilty of larceny. (The State v. Cassady, 12 Kan. 550; The State v. Ingram, 16 Kan. 14; The State v. Henry, 24 Kan. 457; The State v. Hoffman, 53 Kan. 700, 37 Pac. 138.) Here the possession was recent-only- four days after the mule was last seen in the pasture by Williams, and within a day of the time that he missed it. This much without explanation made a prima facie case from which the appellant’s guilt might be inferred. Explanations were made by the appellant, but evidently the jury did not credit them. How much credence should be given to his statements was for the jury to decide. They were not compelled to accept his statements as true, and his appearance apd manner in testifying may have been such as to lead them to the belief that his explanations were untrue. It would be an invasion of the province of the jury to hold that the prima facie case established by the state had been overcome by the appellant’s testimony, which the jury