56 Kan. 362 | Kan. | 1896
The opinion of the court was delivered by
: I. It is strongly urged by counsel for defendant that the court erred in refusing to grant a continuance on account of his sickness and disability. The embarrassing and delicate duty of passing upon the defendant's physical and mental condition was devolved upon the court. The proceedings ivere
“Continuances are largely within the discretion of the trial court; and, before error can be affirmed, it must be shown that such discretion has been abused. It is not enough that conditions and circumstances are shown which would justify a postponement; there must be those which compel such postponement. Any uncertainty or doubt in this respect must be resolved in favor of the ruling below. Abuse of discretion is never presumed; it must be proved.”
See, also, Cushenberry v. McMurray, 27 Kan. 328 ; Krapp v. Hauer, 38 id. 430 ; and Harlow v. Warren, 38 id. 480, where applications were made for continuances on the ground of the sickness of a party. In Hottenstein v. Conrad, 9 Kan. 435, 440, 441, it was held that whatever fact a court may inquire into on a motion it can also determine, and its determination establishes the fact for all the purposes of the motion. Upon the record, we cannot say that the court erred in its conclusion, nor that it abused its discretion in refusing to grant a continuance.
II. It is insisted that the court erred in admitting testimony over the defendant's objections. The prosecution offered to introduce in evidence some statements made by the defendant on the first trial by selecting and reading portions only of what was claimed to be his testimony, as shown on certain designated pages of the bill of exceptions. To this his counsel Objected that a part of such former testimony could not be introduced against him, but that it must all go to the jury, and the court took this view of the case ; and counsel for the state then proceeded, under
It was the theory of the prosecution that the crime was conceived by the defendant, and that he induced George H. Shirley to manage the destruction of the records, and that Shirley employed Harris, English, and Riffle, three professional burglars, to do the work. G. 0. Smith was -working in Matthews’ restaurant, which kept open day and night, and which Shirley often frequented in the night season ; and Smith was called as a witness to testify to Shirley’s conduct at the restaurant early in the morning that the offense was committed. The objection made to this testimony is that the crime had already been committed, and that evidence of Shirley’s conduct thereafter was inadmissible against his codefendant, who was being tried separately; but the record shows that the peculiar conduct of Shirley testified to by the witness was about four o’clock in •the morning, and this is just about the time that the professional housebreakers were engaged in their desperate business. The defendant also complains of the admission of the testimony of Thomas Carroll, who had been solicited by Shirley to assist him in destroying the records. It is said that there was no proof that any conspiracy had been formed at that time to which Rogers was a party. He testified that Shirley said he would see his partner, and it is claimed that this was inadmissible for the purpose of showing that a conspiracy then existed. It is true that such testimony would not be admissible for that purpose, but evidence was given on the trial tending to show that the conspiracy between the defendant and Shirley was formed before
III. The next complaint respects the giving* and refusal of instructions. No. 24, as given, reads as follows :
“You are instructed that, before you are warranted in finding the defendant guilty, each of you must be able to truthfully and conscientiously say that his guilt has been established by the evidence in the case beyond reasonable doubt; and if, after a consideration of the whole case and consulting with your fellow jurymen, any one of the jurors entertains a reasonable doubt as to whether defendant’s guilt has been established, you cannot convict the defendant; but you cannot acquit the defendant unless all the jurors entertain a reasonable doubt.”
The last clause is severely criticised, counsel saying that this would compel a person charged with the commission of an offense, in order to secure an acquittal, to establish a reasonable doubt of his guilt in the mind of each juror; and they asked an instruction to the effect that if a single juror entertained a reasonable doubt, then the defendant must be acquitted. That the instruction asked was erroneous is settled by the case of The State v. Witt, 34 Kan. 488, and we can conceive of no valid objection to the instruction as given, and this notwithstanding the case of Stitz v. The State, 104 Ind. 359, 362. In that case the court below instructed the jury that “ while each juror must be satisfied of the defendant’s guilt beyond
IV. The practice of calling in a jury and lecturing them upon the desirability of an agreement, although obtaining to a considerable extent in this state, is not to be commended. Jurors very generally understand the importance of agreement, and the inconveuience and expense of another trial. It is presumable that, in their arguments pro and con for many hours together, they chide each other sufficiently, and they ought not to be visited with a scolding by the court because differences of opinion still remain. In this case, however, the oral remarks of the court seem to have had no immediate or early effect, for there was no verdict until the next day ; and upon considering
V. It is argued that the conviction was erroneous and illegal, because the term at which the trial commenced ended by operation of law, and another term commenced in Harvey county on May 21,1895. It was held in In re Millington, 24 Kan. 214, that courts cannot be legally held at the same time in two counties of the same judicial district. But the district court of one county is not prohibited from adjourning to a time beyond the regular term in another county of the same district; (The State v. Montgomery, 8 Kan. 351, 356;) and in The State v. Palmer, 40 id. 474, 478, the court in one county was adjourned to a time one day subsequent to the commencement of the term in another county of the same district, which latter term was on the first day adjourned to a time beyond the adjourned term of the former county ; and this practice was held proper. This case would be exactly in point here if the oral statement of the trial judge should be taken as evidence, but this is objected to. We hold, however, that, in the absence of any showing that the court was held in Harvey county on May 22 and the following days of the trial of this case, the defendant’s objection to the regularity of the term cannot be sustained.
YI. It is said that the court erred in failing to admonish the jury on the adjournment of Saturday, May
We find no substantial error in the record prejudicial to the defendant, and the judgment of the court below must be affirmed.