State v. Abrams
| Decision Date | 09 February 1924 |
| Docket Number | 25,062 |
| Citation | 223 P. 301,115 Kan. 520 |
| Parties | THE STATE OF KANSAS, Appellee, v. JESSE ABRAMS, Appellant |
| Court | Kansas Supreme Court |
Decided January, 1924.
Appeal from Wyandotte district court, division No. 1; EDWARD L FISCHER, judge.
Judgment affirmed.
SYLLABUS BY THE COURT.
1. HOMICIDE--Evidence in Chief Offered in Rebuttal--Not Reversible Error. The admission in a criminal case of evidence for the prosecution in rebuttal, some of which might have been introduced in chief, is held not to be a ground of reversal.
2. SAME--Wife's Evidence Concerning Grounds of Her Estrangement From Her Husband -- Competent in Rebuttal of Her Husband's Testimony. Where the defendant in a murder case had testified that his separation from his wife was caused by her relations with the man whom he killed, her evidence in rebuttal concerning the grounds of her estrangement from her husband is held to have been either proper or nonprejudicial.
3. SAME--Self-defense--Competent for State in Rebuttal to Show that Deceased Was Unarmed. Where one on trial for murder testifies that he fired the fatal shot because he saw the man whom he killed in the apparent act of attempting to draw a weapon, it is competent for the state in rebuttal to show that the person killed was unarmed, the evidence being admissible as throwing light on the probability of the defendant's story.
4. SAME--Dying Declarations--Oral Proof Competent. Where the victim of a homicide has made a statement in circumstances making it admissible as dying declaration the fact that it was embodied in a writing which has been lost does not prevent a witness who heard it from testifying to what was said to and by the dying man, regardless of the contents of the writing.
5. SAME--No Request for Instruction Concerning Dying Declarations--No Error if Not Given. Where a dying declaration has been admitted in a murder trial and the jury are told that they are the exclusive judges of the facts proved, the weight of the evidence and the credibility of the witnesses, the omission to instruct concerning the effect to be given the evidence relating to the dying declaration is not error, in the absence of any request for such an instruction.
6. SAME -- Manslaughter in Fourth Degree -- Instructions. The definition of manslaughter in the fourth degree as "the involuntary killing of another by a weapon, or by means neither cruel nor unusual, in the heat of passion," having been held not to apply where the death was accomplished by the use of a dangerous weapon, no occasion arises for giving an instruction under it where the killing was done with a pistol shot.
David F. Carson, and C. A. Miller, both of Kansas City, for the appellant.
Justus N. Baird, Harry Hayward, and David E. Henderson, all of Kansas City, for the appellee.
Jesse Abrams appeals from a conviction of murder in the second degree. He admitted the killing (of Will Brown) and relied upon evidence tending to show that he acted in self-defense. He gave testimony tending to show these facts:
He had had some difficulty with his wife. She sued him for a divorce. Later they lived together for seven or eight months but were again separated. Two or three weeks before the latter separation he became suspicious of her relations with Brown. After this separation, but before a divorce which the defendant later obtained with her consent, he told Brown to stay away from his house because he did not want any trouble with him. One morning two weeks before his final separation from his wife he turned back after having started to his work and went to his house--a block and a half away--for a pistol, which he had a permit to carry. As he got to the front door Brown came out of the bedroom, followed by the defendant's wife. The defendant asked them what they meant. Brown put his hand in his hip pocket as if to draw a weapon and the defendant dashed into his room and got his pistol. When he came out Brown was gone. On the day of the homicide the defendant got on a street car, in accordance with his custom, to get some change from the conductor. He saw Brown, who was sitting next to the window, with the defendant's divorced wife, get up out of the seat with his hand in his hip pocket. He had been warned to be on his guard against Brown and knew of threats he had made; being frightened he took no chances, but shot him.
1. In rebuttal the prosecution called the defendant's divorced wife as a witness for the first time. Complaint is made on the ground that she should have been used, if at all, in making the state's case in chief. The code of criminal procedure provides that after the defendant has introduced his evidence the parties may offer only rebuttal testimony "unless the court, for good reason, in furtherance of justice, permit them to offer evidence upon the original case." The admission in rebuttal of evidence which ought to have been introduced earlier is not a ground of reversal unless the defendant is thereby hampered in presenting his case, for instance, where he is denied an opportunity to meet the new evidence. (The State v. Gibbs, 105 Kan. 52, 181 P. 569.) We do not think any substantial prejudice resulted from the testimony of his former wife being introduced in rebuttal instead of as a part of the original case. In the defendant's brief it is suggested that he did not have time or opportunity to meet the evidence given in rebuttal, but no showing appears to have been made to that effect. In behalf of the prosecution it is said that the witness was not used in chief because diligent efforts to find her had been unsuccessful at the time the state rested.
2. Special objection is made to the testimony of this witness concerning the causes of her separation from her husband and of the divorce. It is urged that the matter at issue was not whether Brown was in fact the cause of the estrangement between the defendant and his wife, but whether the defendant upon reasonable grounds believed so. The defendant testified that his separation from his wife was caused by Brown's relations with her. His version of his domestic troubles having been given it was competent for the state in rebuttal to disprove his assertions where they were material; and even where their materiality was doubtful it does not appear that serious prejudice could possibly have resulted save in one instance. She testified that before the first separation the defendant undertook to cash his pay check without her knowledge, and in a resulting controversy he struck her over the head, drew his gun and said he would kill her if she struck him back. We do not think there...
To continue reading
Request your trial
-
State v. Willis
...claim.... The second is, that under our decisions (see The State v. Gibbs, 105 Kan. 52, 181 Pac. 569 [ (1919) ]; The State v. Abrams, 115 Kan. 520, 223 Pac. 301 [ (1924) ]; The State v. McReynolds, 118 Kan. 356, 360, 234 Pac. 975 [ (1925) ]; State v. Haines, 128 Kan. 475, 477, 278 Pac. 767 ......
-
State v. Beam
...signature, was in his handwriting. The second is, that under our decisions, see State v. Gibbs, 105 Kan. 52, 181 P. 569; State v. Abrams, 115 Kan. 520, 223 P. 301; State v. McReynolds, 118 Kan. 356, 360, 234 P. 975; State v. Haines, 128 Kan. 475, 477, 278 P. 767, the admission of such evide......
-
State v. Frizzell
... ... other men at a place near the scene of the crime and at a ... time shortly after it was committed, which tended to rebut ... testimony of witnesses of defendant as to his whereabouts at ... that time. The evidence was competent in rebuttal. R. S ... 62--1438; 38 Cyc. 1413; State v. Abrams, 115 Kan ... 520, 223 P. 301; State v. Haines, 128 Kan. 475, 477, ... 278 P. 767; State v. Bauman, 133 Kan. 27, 298 P ... Appellant ... complains that the court admitted evidence of another similar ... offense. That question was determined adversely to the ... contention of the ... ...
- Goode v. Cummings