54 Kan. 161 | Kan. | 1894
The opinion of the court was delivered by
Numerous questions are raised by the appellant, which we will consider in the order in which they are presented in the brief.
It is urged in this connection that the language used by the court at the time this part of the instructions was withdrawn indicated that the court still believed it to be sound, and that the jury might have been influenced by it, notwithstanding its withdrawal, believing that the judge was right in the first instance. We do not perceive any special force in the argument. In all cases where a trial judge gives an erroneous instruction, it is to be presumed that, at the time he wrote it, he thought it was a correct expression of the law, and, in any case where an instruction is withdrawn, it might be argued that because the judge had once asserted that it was a correct proposition of law that it would necessarily have influenced the jury. Juries are presumed to act intelligently, as well as courts; and when the court has withdrawn from their consideration a portion of the instructions, it is to be presumed that they will not give it any weight in their deliberations.
IV. We think the definition of “ reasonable doubt” is about as good as is ordinarily given, and the expression that all that can ordinarily be obtained in human affairs is reasonable certainty does not convey an essentially different idea from that of the absence of reasonable doubt.
The forty-second instruction is criticised, and especially the first part of it. When read in connection with the one which immediately follows it, we do not perceive that it is open to the criticism urged by counsel, nor that the two instructions as a whole could be at all prejudicial to the defendant. Ordinarily, it may be better to omit anything like a discussion of general policy, or of the duty of jurors in reference to the enforcement of criminal laws, and of the effect that a verdict may have on the welfare of the body politic, yet we are not prepared to say that it would in all cases be improper for the court to advert to such matters. We perceive nothing harmful in the language used in this case.
YI. The scope of the cross-examination of the defendant ou the witness stand is complained of. In the case of The State v. Pfefferle, supra, the second and third paragraphs of the syllabus are as follows:
“ 2. Where a defendant in a criminal case takes the witness stand to testify in his own behalf, he assumes the character of a witness, and is entitled to the same privileges, and subject to the same tests, and to be contradicted, discredited, or impeached, the same as any other witness.
“3. The extent to which a witness may be cross-examined on matters irrelevant and collateral to the main issue, with a view of impairing his credibility, depends upon the appearance and conduct of the witness, and all the circumstances of the case, and necessarily rests in the sound discretion of the*169 trial court; and only where there has been a clear abuse of that discretion will error lie.”
Many authorities bearing on the question were carefully reviewed, and are cited in the opinion. (See, also, Rice, Ev., p. 350, note.)
The defendant having testified in his own behalf, counsel for the state on cross-examination asked him with reference to his occupation, his past life, and particular difficulties and quarrels he had had, and with reference to his having carried and used dangerous weapons at other times. It is insisted that such examination was improper, and that it was at least the imperative duty of the court to instruct the jury that the evidence given by the defendant in answer to these questions, could be used only for the purpose of affecting his credibility. No such instruction was given. In the case of People v. Casey, 72 N. Y. 393, it was said by Earl, J., in delivering the opinion of the court:
4. wftneá-* “ ination.am" “Upon the trial the prisoner was a witness in his own behalf, and it is now complained that the counsel for the people, on cross-examination, was permitted to question him as tu other altercations in which he had been engaged and other assaults which he had committed. This complaint is not well founded. When a prisoner offers himself as a witness in his own behalf, he is subject to the same rules upon cross-examination as any other witness. He may be asked questions disclosing his past life and conduct, and thus impairing his credibility. ‘Such questions may tend to show that he has before been guilty of the same crime as that for which he is upon trial, but they are not on that account incompetent. When he offers himself as a witness, and seeks to take the benefit of the statute which authorizes him to testify in his own behalf, he takes the hazard of such questions. He must determine before he offers himself whether his examination will benefit or injure him. The extent to which such an examination may go to test the witness’s credibility is largely in the discretion of the trial court.” (See, also, People v. Irving, 95 N. Y. 541.)
VIII. On the oral argument, it was strenuously insisted by counsel that the evidence in this case fails to uphold the verdict; that it is apparent from the testimony of all the witnesses that the defendant was not only drunk, but so drunk that he utterly failed to know what he was doing at the time he killed Warren. This really was the main question passed on by the jury at the trial. That the defendant had been