78 P. 429 | Kan. | 1904
The opinion of the court was delivered by :
Appellant was convicted of selling intoxicating liquor contrary to law. At the close of the state’s evidence a written election was made and filed with the papers in the case, specifying the transactions relied on for conviction. In its written instructions the court referred to the election, and advised the jury that their inquiries should be confined to the several transactions therein designated. In delivering the charge the written election was read, but it was not copied at length in the instructions. It is now contended that the conduct of the court in reading the election was violative of the statute requiring the charge to the jury to be in writing and to be filed with the papers in the case.
Technically the statute was complied with, because the election was written and was filed with the papers in the case, and the mere failure to rewrite it in the body of the charge was not, under the circumstances, sufficient to authorize a reversal of the judgment. (The State v. Mortimer, 20 Kan. 93.) The state’s election in such cases, however, may be, and usually is, communicated to the jury in other waye than by instructions. Counsel may make the announcement, or the court may do so by mere oral statement, if that method be preferred, and usually the jury are advised of the election at the time. After an election has been made the duty of the jury in the premises is proper matter of law to be explained by instructions, as was done in this case ; but the
On the trial appellant was not sworn as a witness in his own behalf. No request was made of the court to instruct the jury that the neglect or refusal of appellant to testify should not be considered by the jury, and should not raise any presumption of guilt, or be construed to affect his innocence or guilt (Gen. Stat. 1901, §§5657, 5658), and no such instruction was given. ’ It is now urged that the court should have instructed on this subject without request.
Under section 5681 of the General Statutes of 1901 the court is required to state to the jury all matters of law which are necessary for their information in-giving their verdict. Aside from such matters many others may appear in the trial of a criminal case of great importance to the defendant, but not of a character imperatively demanding exposition in order to afford opportunity for the return of a just verdict. The instructions contemplated by the statute are those which are indispensable. Those of the other class are monitory only, and, although a refusal to comply with a seasonable request that they be given is error, the law cannot say that a verdict reached without their guidance, when no request was made, is necessarily vitiated. The peculiar phraseology of the statutes relating to the privilege of the accused to waive his right to become a witness in his own behalf, and of the statute relating to the duty of the court in charging the jury, indicates that instructions on the subject should be assigned to the cautionary
The questions raised by such other of the assignments of error as might require consideration have been determined adversely to appellant by previous decisions of this court, and the judgment of the district court is affirmed.