48 Kan. 723 | Kan. | 1892
The opinion of the court was delivered by
On the night of Sunday, the 7th day of
Nolan was charged with arson in the first degree for setting' fire to and burning the house. He was convicted “of arson, as charged,” and was sentenced to the penitentiary of the state at hard labor for a period of 10 years. He appeals to this court. Pearson Potter, a witness examined on behalf of the state, testified as follows:
. “Ques. When you got to the house did you notice how the fire had started? Ans. Yes, sir.
“Q. Did it appear to have been started accidentally, or was it set on fire? A. Well, I think it was set on fire by some one.”
The defendant, George Nolan, is a poor colored man, almost without friends, except his attorneys, who have prosecuted this appeal in his interest as a matter of charity. In the opinion as originally filed we stated that it was incompetent for Pearson Potter, a witness for the prosecution, to testify against the defendant that “I think the house was set on fire by some
After a reexamination of all the testimony in the record, and especially in view of portions thereof which seem almost incredible, the members of the court are unanimously of the opinion that the ruling heretofore made must be changed. We cannot say that the error referred to was not material or prejudicial. It was decided in Gilleland v. Schuyler, 9 Kas. 569, that—
“Where testimony is erroneously received, which may have influenced the court or jury in the findings or verdict, the error cannot be considered immaterial.”
Mr. Justice Brewer, speaking for the court in that case, said:
“It may be said that the testimony was immaterial, and that the error worked no substantial injury to the plaintiffs in error, because, first, there was sufficient testimony without this to support the findings, and, secondly, there was no finding that these specific fraudulent votes, or indeed that any fraudulent votes, were cast. The rule that requires this court to sustain the findings of the district court, unless clearly against the weight of evidence, avoids the first reason, for we cannot say how much this testimony influenced the court in its findings, nor determine whether without it the findings would have been as they are. If testimony is erroneously received which may have influenced the court or jury in the finding or verdict, we cannot call the error immaterial. The findings or verdict must be based upon nothing but compe*727 tent testimony before any presumption in favor of their correctness will arise in this court. For, otherwise, the court or jury may, disbelieving the witnesses who give competent testimony, reach their determination mainly or wholly on the incompetent evidence, and so a party obtain a judgment he is not in fact entitled to. The record must be clean, which, when passed upon by court or jury, is sought to be sustained in this court because it has been so passed upon.” (See also Railway Co. v. Pointer, 9 Kas. 620; Muscott v. Hanna, 26 id. 770.)
■ This is a criminal case, in which the defendant is charged with a felony. Before he could be convicted, it was necessary to establish before the jury, beyond a reasonable doubt, that the dwelling-house of Edward Farris was “set on fire.” We cannot say how much the incompetent testimony influenced the jury; therefore, as it was erroneously received, and may have influenced the jury in their verdict upon an important issue of the case, we cannot call the error immaterial.
It is next contended that the court committed several errors in permitting the state to indorse the names of witnesses upon
The further contention is, that the sentence of the defendant to confinement and hard labor in the penitentiary of the state is in violation of the constitution of the United States» and not authorized by any statute of this state. The argument in support of this is, that a public offense, within the meaning of any statute of the state, is any act or omission for which the laws of the state prescribe a punishment; that public offenses are divided into felonies and misdemeanors; that a felony is an offense punishable by death or confinement and hard labor in the penitentiary; that all other public offenses are misdemeanors; that offenses committed against the laws of the state are punished in the county in which the offense is committed, except as may be otherwise provided by law, and that every person who is convicted of any degree of arson is to be punished as follows: “In the first degree, by confinement and hard labor not less than 10 years, nor more than 21 years,” etc. (Crim. Code, §§ 3, 4, 5, 20; Crimes Act, § 60.) Therefore, it-is concluded that as there is no express provision of the statute providing that a person convicted of arson in the first, or any other degree, shall be punished by confinement and hard labor in the penitentiary, the crime of arson is not a felony under the statute, but a misdemeanor only, if anything, and punishable, if at all, in the county in which the offense is committed.
The argument of counsel for the defendant against any confinement in the penitentiary for the crime of arson, very forcibly presented, is plausible, and upon first presentation seems of considerable force. But a consideration of other statutes inpari materia shows that the construction contended for would not only be unfortunate to the state, in opening the doors of the penitentiary to hundreds of convicts confined therein, but cannot be sustained. There are only two places of imprisonment provided by law: The penitentiary (Const.,
Section 60 of the crimes act reads:
“Every person who shall be convicted of any degree of arson shall be punished, by confinement to hard labor, as follows: First, in the first degree, by confinement and hard labor not less than ten years nor more than twenty-one years. Second, in the second degree, by confinement and hard labor not less than seven nor exceeding ten years. Third, in the third degree, by confinement and hard labor not less than five nor more than seven years. Fourth, in the fourth degree, by confinement and hard labor not more than four years, or by imprisonment in the county jail not less than six months.”
The obvious meaning of this section is, when its provisions are construed together, that, by use of the words “ by confinement and hard labor” for a term of years, the legislature plainly intended that the imprisonment therefor should not be in the county jail. Imprisonment in the county jail cannot be construed in the fourth subdivision to mean the same as “confinement and hard labor” in the first clause of this subdivision. “Confinement and hard labor not more than four years” is used disjunctively with the clause, “imprisonment in the county jail not less than six months.” See also §§ 426-435 of the crimes and punishments act. Section 434 of this act reads:
“A sentence of confinement and hard labor for a term less than life, suspends all civil rights of the person so sentenced during the term thereof, and forfeits all public offices and trusts, authority and power; and a person sentenced to -such confinement for life, shall thereafter be deemed civilly dead.”
It is not credible that the legislature of 1868, or any legislature since that date, intended that imprisonment in a county jail, with labor or without, suspends all the civil rights and forfeits all the public offices, trusts, and authority of a person restrained therein.
While we fully recognize the rule to be “ that the penal and criminal statutes are to be strictly construed in those particulars which are against persons charged with their violation, but liberally construed in those particulars which are in their favor,” yet, for the purpose of liberating couviets and releasing parties guilty of crime, we are not to unnecessarily strain any statute by construction so as to give it no force or meaning. In 1863, John Millar was convicted in Leavenworth county of the offense of assault with intent to kill. He was “sentenced to two years at hard labor in the penitentiary of the state.” At that time the statute, while defining a felony to be any offense for which the offender was liable to be punished by confinement and hard labor, provided that any one guilty of assault with intent to kill might be punished by confinement and hard labor for a term not exceeding 10 years, but did not state that the confinement was to be in the penitentiary. It was urged by Millar, upon his appeal to this court, that there was no statute of the state authorizing his punishment “'by confinement in the penitentiary.” But in the case this court decided that “the term ‘penitentiary’ is an English word in common use, signifying a prison or place of punishment, . . . and means the place of punishment in which convicts sentenced to confinement and hard labor are confined by authority of law.” (Millar v. The State, 2 Kas. 174.)
The judgment of the district court will be reversed and a new trial granted on account of the reception of incompetent evidence.