State v. Buton

• Court: Kansas Supreme Court
• Writing for the Court: HARVEY, J.:
• Citation: State v. Buton, 124 Kan. 509, 260 P. 634 (Kan. 1927)
• Decision Date: 05 November 1927
• Docket Number: 27,863
• Parties: THE STATE OF KANSAS, Appellee, v. CARTER BUTON, Appellant

260 P. 634

124 Kan. 509

THE STATE OF KANSAS, Appellee, v. CARTER BUTON, Appellant

No. 27,863

Supreme Court of Kansas

November 5, 1927

Decided July, 1927.

Appeal from Montgomery district court; JOSEPH W. HOLDREN, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. CRIMINAL LAW--New Trial--Recantation of Testimony by Witness. The recantation of his testimony, by a witness for the prosecution in a criminal case, does not necessarily entitle defendant to a new trial. Whether it does so or not depends on all the facts and circumstances disclosed by the evidence in the case, including that offered on the motion for a new trial.

2. SAME--New Trial--Recantation--Circumstance Indicating False Swearing. When a witness for the prosecution recants his testimony, and a consideration of all the facts and circumstances of the case lead to the conclusion that the recantation is false, the new trial should be refused.

J. F Sanford, Thomas E. Wagstaff and Jay W. Scovel, all of Independence, for the appellant.

William A. Smith, attorney-general, C. W. Mitchell, county attorney, and John M. Cook, assistant county attorney, for the appellee.

OPINION

HARVEY, J.:

Appellant was convicted of the violation of R. S. 21-2101. His sole complaint is that the court refused to grant a new trial. One Cecil Comstock was one of the material witnesses for the state at the trial, but he was not the only witness on any material point. In support of defendant's motion for a new trial, Comstock made an affidavit that the testimony he had given against defendant at the trial was false, explaining in detail how it came about that he had given the false testimony. These details were controverted by affidavits. In this situation appellant contends that it is the function of the jury to weigh the testimony, and that there was nothing for the court to do but to grant a new trial. This contention cannot be sustained. The court, not the jury, passes on the motion for a new trial, and any evidence offered in support of it. Obviously, a court is not compelled to give credence to false testimony offered in support of a motion for a new trial. One who recants his sworn testimony in court necessarily raises a serious question as to his own veracity. In 16 C. J. 1188, the rule is thus stated:

"But recantation by witnesses called on behalf of the prosecution does not necessarily entitle defendant to a new trial. The question whether a new trial shall be granted on this ground depends on all the circumstances of the case, including the testimony of the witnesses submitted on the motion for the new trial. Moreover, recanting testimony is exceedingly unreliable, and it is the duty of the court to deny a new trial where it is not satisfied that such testimony is...