State v. Bean, 40007
| Decision Date | 07 April 1956 |
| Docket Number | No. 40007,40007 |
| Citation | 179 Kan. 373,295 P.2d 600 |
| Parties | The STATE of Kansas, Appellee, v. W. T. BEAN, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. In the trial of a criminal case one of the functions and duties of the trial judge is to see to it that the full truth of the matter in issue is developed by the the trial judge may resort to measures the trial judge may resort to measures such as cross-examining witnesses, including the defendant, or use other means as, under the circumstances, reasonably appear necessary in order to develop fully the truth of the matter in issue, and such action by the trial judge does not constitute a ground for a new trial unless it appears that such action is of such a prejudicial nature as would tend reasonably to influence the minds of the jury against the defendant, thus denying him the right to a fair and impartial trial.
2. In those instances in criminal prosecutions where the trial judge deems it necessary to cross-examine a witness, and particularly the defendant, or to resort to other means in order to accomplish the full development of the truth of the matter in issue, he is bound to exercise extreme care to prevent giving to the jury the impression that he is biased against the defendant or that he does not consider the witness or the defendant worthy of belief, the he should not, by the form, manner or extent of his questioning and remarks, indicate to the jury his opinion as to the defendant's guilt.
3. In a criminal prosecution during which the trial judge undertook to cross-examine defendant and in connection therewith made certain comments and remarks in the presence of the jury, all as fully set forth in the opinion, the record is examined and considered and it is held: Such action by the trial judge, under the facts and circumstances disclosed, could serve no purpose other than to bias and influence the jury against defendant, and constituted prejudicial error entitling defendant to a new trial.
Clair D. Hyter and Elmer Goering, Hutchinson, were on the briefs for appellant.
Granville M. Bush, County Atty., Lyons argued the cause, and Paul E. Wilson, Asst. Atty. Gen., was with him on the briefs for appellee.
The sole question presented is whether remarks and conduct of the trial court in the course of a criminal prosecution constituted prejudicial error, thus entitling defendant to a new trial.
For reasons which will hereinafter appear we feel compelled to hold that the question must be answered in the affirmative.
The defendant was charged with two counts, one being grand larceny and the other with cheating and defrauding by means of false pretenses. The charge of grand larceny arose out of the alleged theft by defendant of 65 sacks of cement belonging to one Mrs. Patterson, an elderly lady, and the fraud count arose out of defendant's having obtained a deed to certain property owned by Mrs. Patterson, the deed being made to defendant's wife, defendant thereby obtaining a beneficial interest and use in the property.
Defendant had been employed by Mrs. Patterson to move a house belonging to her and to place it on a foundation to be built by him. In addition, she had employed him to build a small house in Lyons. In view of the only question presented on this appeal it is unnecessary to detail the evidence with respect to defendant's guilt, and it is enough to say that it was sufficient to support the jury's verdict of guilty on both counts.
While defendant was testifying in his own behalf he admitted, under cross-examination, that Mrs. Patterson had executed the deed to his wife which was the basis of the second count of the information. Counsel, in an apparent effort to establish a direct financial benefit accruing to defendant, sought to bring out the fact that he and his wife later deeded the property to one of his attorneys and that he used a part of the consideration received therefor to pay certain bills. During his cross-examination he was confronted with a copy of this purported deed in which he and his wife were grantors. Their names as grantors were typed in and he was not shown the original deed. At this point, in order to show precisely what transpired, it will be necessary to quote a portion of the record. It is as follows:
'Q. Did you sign the deed? A. Well, it is like this, if we got the money to do what we wanted to do with, and the papers were fixed up later on, and I am busy working all the time, I let her transact the business part, and I do the work.
'Q. When did you sign this deed to Mr. Hyter? A. I don't think I ever signed any deed.
'Q. You didn't? A. I don't recall if I did; in fact, I don't think I have ever had my hands on a deed.
'Q. I hand you something here, and you look that over, if you will, please? A. I still don't see where I signed it.
'Q. What does this say? What does that purport to be, Mr. Bean? Does that purport to be a copy of a deed? A. It says a true copy, but I still don't see where I signed it. That is not my signature.
'Q. No, that is not your signature; it is typed in. You say you never signed the deed? A. I don't say I didn't, I say I don't recall signing it. I don't remember signing it.
'Q. What did you do with this---- A. Lot of times my wife will have things, hand me a piece of paper and say, 'Here, you have got to sign it,' and I don't remember it; I just sign it because she says it is all right.
'Q. What did you use this money for you borrowed from Mr. Hyter? A. Well, seemed to me like I cleared some indebtedness with it.
'Q. Cleared some of your indebtedness, is that right? A. Yes.
'Q. How much did you borrow from Mr. Hyter? A. It was better than $1000.00.
'Q. Better than $1000? A. Yes.
'Q. You gave him a deed to the property? A. I never had no deed to give him, my wife probably gave him a deed.
'Q. And you don't know whether or not you signed the deed, is that right? A. This is right.
'Q. But the money obtained through this deed, you used to take care of some indebtedness, is that correct? A. That's all I could figure it went with, that is generally what I do with my money, is pay my bills.
'Q. How much more than $1000 did you borrow from Mr. Hyter? A. I wouldn't know, unless I had something to go by, how much I----
'Q. You know how much you borrowed on this property, don't you, Mr. Bean? A. It was something between one thousand and $2000; I couldn't state exactly for I don't know.
'Q. Instead of giving Mr. Hyter a mortgage, you gave him a deed to the property, is that right? A. I told you I didn't have nothing to do with it, giving it to him.
'Q. You talked it over with your wife, didn't you? A. We agreed to give him the holt on something we had for the money.
'Q. You have him a hold on your property? A. A mortgage on something, and I suppose Mr. Hyter figured it would be better that way than it would be the other way. I don't know what they decided on. I leave at seven o'clock in the morning, and a lot of times I don't even come in until four o'clock on Saturday evening.
'By the Court: Q. They didn't do that in your absence, did they? A. Not unbeknownst to me, Judge.
'Q. You signed the deed? A. I don't recall it, I don't recollect signing it, I could have signed it, but I don't recollect signing it, Judge. That has been quite a little bit ago. I don't recollect that.
'Q. You are under oath, Mr. Bean, and you know whether or not you signed a deed to that property with your wife to this gentleman mentioned; is that right? Answer my question, you know whether or not you did, don't you? A. No, I don't.
'The Court: Mr. Bailiff, you will take this gentleman over to jail until his memory improves--this gentleman here. You will take him over to the sheriff. Mr. Sheriff, you will take this gentleman over to the jail until his memory improves. A. Judge, if I could see my signature, I would know it, but in that way, I would have knowledge of it, but I am trying to tell you the truth, Judge. I don't know, I don't recollect whether I did or not.
'The Court: Well, I am trying to help you tell the truth. A. Well, honest to God, I am telling it, cross my heart to die.
'The Court: This is all I am interested in this case is just---- A. I am very sorry if you have misjudged me.
'The Court: I am not misjudging you. A. Could I see my signature.
'The Court: Yes, you can see your signature. A. Well, let me see---- 'The Court: Who is the party that is supposed to have the deed? A. Well----
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