State v. Miller

84 Kan. 667 | Kan. | 1911

Per Curiam:

The facts in this case are stated in the former opinion. (The State v. Miller, 83 Kan. 410.) A rehearing was allowed, and it is now held that the court erred in not instructing the jury that if the appellant acted innocently, believing that he was aiding another in taking charge of and removing from the depot platform the other’s own property, he was not guilty of larceny. Although the particular instruction requested was faulty, as pointed out in'the former opinion, it was, as said in a recent case, “sufficient at least to challenge the court’s attention to the only defense upon which the defendant relied” (The State v Turner, 83 Kan. 183) and in support of which there was some substantial evidence offered. As no instruction was given which in any manner stated the law in reference to the appellant’s sole defense, the error must be regarded as prejudicial.

The judgment is reversed and the case remanded for further proceedings.