The opinion of the court was delivered by
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 un
“In this case you will not consider any evidence showing or tending to show а confession of the guilt of the defendant, but you may consider any evidence in the case tending to shоw that the property alleged to have been stolen was found at places indicated by the dеfendant.” * * * “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 thе 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 belоw did not err in speaking of them as facts.
The defendant also claims that the court below erred in refusing tо give the following instructions to the jury:
“The crime must be proved as alleged. The mere fact that the defеndant 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 defеndant 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 hаve given these instructions to the jury without committing any material error, but still their tendency would have been to mislеad the jury. One proposition contained in them is, that “the mere fact that the defendant showed the marshal where thе goods were, is not evidence of the burglary charged in the information.” Now everything charged by the state, in this case, was proved
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 truе, 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.,
The defendant claims that he ought to have a.new trial for the following reasons:
*100 “During thе argument of the'case [in the court below] the defendant’s counsel stated that the defendant had bеen in prison awaiting this trial since April last. The county attorney in his closing argument to the jury stated, by way of answеr 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 defendаnt 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 cirсumstances 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.