Winter v. Sass, 19 Kan. 556

Winter v. Sass

19 Kan. 556 | Kan. | 1878

The opinion of the court was delivered by

Brewer, J.:

On the 17th of January 1875, $2,601 were stolen from defendant in error, and this action was brought to recover that sum, and interest, from the plaintiff in error as one of the parties alleged to have committed the larceny. *563Two juries upon successive trials found in favor of the plaintiff Sass, and from the judgment rendered upon the last verdict this proceeding in error has been brought.

1 conflicting*011 testimony. The first matter to which our attention has been directed by counsel, and upon which special stress has been laid, is, the sufficiency of the testimony to sustain the verdict. We have examined the testimony, 4 J ' which is very voluminous, and do not think the claim of counsel can be sustained. One Grebe, admitting his own participation in the larceny, swears positively that Winter planned it, actually took the money, and subsequently gave him seven hundred dollars as his share of the proceeds. Winter denies this in toto. Outside of these two principal witnesses there is a mass of circumstantial testimony, some tending to implicate and some to exculpate' Winter. It would be a useless labor to attempt to enumerate all the circumstances. Among them may be noticed, that few knew that Sass had any money, and still fewer (not more than three or four, and among these Winter,) where he kept it; that it was taken by some one who knew where it was kept, for the thief entered the house, went to the-bureau-drawer, and took it from under some clothes, without' searching or disturbing anything else; that it was taken on Sunday evening, when Sass and his wife were at Winter’s, about two blocks off, playing cards; that while so playing Mrs. Winter excused herself to put the children to bed, and Winter went out and was absent about half an hour, and upon his return, and the resumption of the cards, neither Winter nor his wife seemed able to keep any track of the game; that immediately after the larceny was discovered, which was on the return of Sass to his home about 10 o’clock that evening, Winter was notified, and for some days was very officious throwing suspicions on different parties, some of whose houses he induced Sass to have searched, finally suggesting to Sass that Mrs. Sass must have taken it. Again, the thief entered the house through the back door, pressing the door until a screw which held the catch of the bolt gave *564way. A short time before, Winter had taken a knife and gone to the back door on pretense of fastening the screws, and had cautioned Sass and his wife about the care they should take of their money. Again: One of the pieces of money stolen was a gold dollar which had been used as a breast-pin, and while the pin was gone the catch to which the pin was fastened still remained. On the search of Winter’s house some weeks after a similar gold dollar was seen by one of the policemen. Then there was an anonymous and abusive letter sent by Winter to Sass, and contradictory statements of Winter. All this . made a mass of testimony, tending strongly to corroborate the positive testimony of Grebe. We do not mean that none of this testimony was contradicted. Much of it was positively denied by Winter and others, so that after all, the case must have turned upon the credibility of the various witnesses. As written down upon paper, it seems to us that the plaintiff’s testimony proved his case, and as the jury found in his favor we suppose they must have believed his witnesses. And we cannot say that they were not warranted in so doing.

2. competent A second error alleged is, in admitting the testimony of the witness Grebe. At the time of the trial Grebe was a convict in the penitentiary, serving out his sentence for the larceny or this very money. The statute is clear. Section 319 of the code provides, that, “No person shall be disqualified as a witness in any civil action * * * , or by reason of his conviction of a crime; but such * * * conviction may be shown for the purpose of affecting his credibility.” And section 335 provides for the examination of any person confined in prison.

3. fetter; eviAnother objection is made to the admission of the anonymous letter heretofore noticed. It was admitted to be in Winter’s handwriting, and Sass testified that he received it through the mail, and Winter that it was written some six or seven weeks alter the larceny. Ihe objection made is as to its relevancy. Prior to the time of writing the letter, as Winter testifies, he had *565heard that Sass was charging him with the larceny, and had also sent in a bill for some tailoring which was some ten or twelve dollars too large. Thereupon, and because of these two,matters, he wrote the letter. It commences, as translated —

“You old monster of men. As I am so far free from you, so at least you cannot make a double charge against me, so will I recall your black soul.”

It continues for several sentences in a similarly abusive strain. Now it seems to us that the ruling of the court must be sustained, and upon this principle, that where a charge is made against a man his reply to that charge is admissible against him in a subsequent action based upon that charge. Suppose Sass, meeting Winter, had personally charged him with the larceny. It would clearly be competent to prove what Winter said in reply, although it were simply a torrent of abuse, and with no direct reference to the charge. So here, Winter testifies that this letter was written partly on account of the excessive bill, but more because he had heard of the charge of larceny made by Sass against him. Instead of going to him personally, he writes him this anonymous letter. And while there is no more direct reference to the charge of the larceny than in the words quoted, it seems to us that the letter was competent as Winter’s reply to the charge, and as part of his conduct with reference thereto.

So far as the accusation against the juror is concerned, it is not sustained by the proof.

The testimony of Thomas Carney does not seem to have been of sufficient moment, even if outside the scope of legitimate inquiry, to justify a reversal of the judgment.

4. 4aefinargu?’ ment to jury. The remaining error complained of involves the action of the counsel for the plaintiff in his closing argument to the jury. He stated to the jury that a former jury had, on less evidence, found for the plaintiff, and when the other side objected to this statement he reiterated . . , it, and said that the records of the court disclosed this fact. After this however he stated that he re*566called the remarks, and wished the jury not to consider the same. And the court at the instance of the defendant gave this instruction:

“The jury have no business to consider the fact what the jury on a former trial of this case did, or the fact that the court set aside the finding of that jury. This case must now be determined on the facts of the case as appear by the evidence here.”

5. should be 1 • set aside. Ought the verdict for this irregularity to be set aside? We doubt not that many cases may arise in which the misconduct of counsel, in going outside of the evidence in his argument, may be such as to compel a reversal. No one can doubt the impropriety of such con- . A J duct. In doubtful cases it may be that which turns the scale, and determines the verdict. And a court, especially a trial court, should be exceedingly careful to restrain such misconduct, and punish the offender personally, and by setting aside every verdict which it has reason to believe has been affected thereby. But to hold that every such misconduct should be visited by a reversal of the judgment, would be unjustifiable rigor, and ofttimes doing as much or greater wrong than the misconduct itself. Who does not know that in the excitement of an argument there occasionally fall from the lips of counsel statements of matters not in evidence? Familiar with all the facts and history of the case, it is not strange that he sometimes refers to facts pot proven. Should the client suffer by loss of his verdict, for every such offense of his counsel? Clearly there would be no justice in that. All that can safely be laid down is, that whenever in the exercise of a sound discretion it appears to the court that the jury may have been influenced as to their verdict by such extrinsic matters, however thoughtlessly or innocently uttered, or that the statements were made by counsel in a conscious and defiant disregard of his duty, then the verdict should be set aside. In this case the trial court overruled the motion to set aside the verdict. Doubtless it appeared to it that there was no intentional *567wrong, and that the matter was not of itself sufficient to have influenced the minds of the jury; and with that we concur.

Two juries have passed upon the question of fact, each in the same way; and as it is principally a question of fact, and the weighing of conflicting and contradictory testimony, that conclusion ought to stand unless it is clearly and palpably wrong.

The judgment will be affirmed.

All the Justices concurring.