State v. Mortimer

| Kan. | Jan 15, 1878

The opinion of the court was delivered by

Yalentine, J.:

This was a criminal prosecution for burglary in the first degree, and for grand larceny. The first and principal question in the case is, whether the court below erred in permitting the witness D. A. Hook to testify concerning certain information which led to finding the stolen property, and which was given by the defendant under a promise from said witness, (who was at the time city marshal of the city of Leavenworth, and had the defendant under his charge,) and from the owner of the property, that the defendant should not be prosecuted. The object for introducing this testimony of Hook, and the extent to which it was allowed to influence the findings of the jury, will be shown by the following instructions given by the court to the jury:

“In this case you will not consider any evidence showing or tending to show a confession of the guilt of the defendant, but you may consider any evidence in the case tending to show that the property alleged to have been stolen was found at places indicated by the defendant.” * * * “In considering the evidence in this case, the jury may take into consideration the fact that-the information which led to finding the stolen property was given by the defendant.”

We do not think that the court below erred in permitting said evidence to be introduced. (See the numerous authorities cited by counsel for The State.) That the property alleged to have been stolen was stolen, and that the information which led to finding it was furnished by the defendant, were facts, not controverted in the court below, and were proved beyond all possible doubt; and hence the court below did not err in speaking of them as facts.

The defendant also claims that the court below erred in refusing to give the following instructions to the jury:

“The crime must be proved as alleged. The mere fact that the defendant showed the marshal where the goods were, is not evidence of the burglary charged in the information. It does not follow from the mere fact of the knowledge of where the goods were, that the defendant committed the burglary.”

“If the statements of the defendant were given by him, under a promise that he should not be prosecuted, such evidence is not sufficient to convict the prisoner.”

Now the court might possibly have given these instructions to the jury without committing any material error, but still their tendency would have been to mislead the jury. One proposition contained in them is, that “the mere fact that the defendant showed the marshal where the goods were, is not evidence of the burglary charged in the information.” Now everything charged by the state, in this case, was proved beyond all controversy, except the mere fact of the connection of the defendant with the burglary and larceny charged in the information. The burglary and larceny were committed at the same time, as parts and portions of the same transaction, and were proved on the trial beyond all controversy to have been committed by some one just as charged in the information; and all that was left doubtful in the case, or which required any serious consideration by the jury, was the question whether the defendant had any connection with said burglary and larceny. The state relied upon the fact, that the defendant knew where the stolen goods were, as some evidence tending to show that the defendant was in some way connected with the commission of the burglary and larceny. The instruction asked however was virtually to the effect that such fact was no evidence of the defendant’s connection with the burglary or larceny. We do not think that the court erred in refusing to give the same. (Walker v. Commonwealth, Court of Appeals of Virginia, July term 1877, 5 Reporter, 281.) All the instructions necessary to be given concerning this subject, or concerning any statements made by the defendant, were given by the court.

The defendant claims that the court below also erred in not giving all of its instructions in writing. Now from anything appearing in the record, all the instructions were in writing. But it is claimed that the court read certain sections of the statutes to the jury without incorporating them in its written charge, but merely referring to them therein. This is probably true, although the record does not show it; but if true, still we do not think that the court committed any material error, even if it committed any error at all. (Swartwout v. M. & L. Rld. Co., 24 Mich. 390, 407.) The reading of a statute applicable to the case, and the failure to incorporate the same in the written charge, will not, under such circumstances, be sufficient to authorize the reversal of the judgment.

The defendant claims that he ought to have a.new trial for the following reasons:

“During the argument of the'case [in the court below] the defendant’s counsel stated that the defendant had been in prison awaiting this trial since April last. The county attorney in his closing argument to the jury stated, by way of answer to the statement of defendant’s counsel, as a fact, that the defendant had been in prison since April last for a crime of which he had been previously convicted —to which statement the defendant by his counsel at the time objected; and the court then told the jury that they should pay no attention to, and not take into consideration, any such statement; and there was no evidence of either statement of counsel introduced in the case.”

The statement of the county attorney will not under the circumstances of this case authorize a new trial. The defendant, before objecting to the statement of the county attorney, should have repudiated the improper statement of his own counsel.

The judgment of the court below will be affirmed.

All the Justices concurring.