State v. Clark

• Decision Date: 08 April 1899
• Docket Number: 11321
• Citation: 60 Kan. 450,56 P. 767
• Parties: THE STATE OF KANSAS v. E. C. CLARK
• Court: Kansas Supreme Court

56 P. 767

60 Kan. 450

THE STATE OF KANSAS v. E. C. CLARK

No. 11321

Supreme Court of Kansas

April 8, 1899

Decided January, 1899.

Appeal from Reno district court; MATTHEW P. SIMPSON, judge.

Judgment reversed and cause remanded for new trial.

Carr W Taylor, county attorney, and L. M. Fall, for The State.

J. C Ellis and H. Fierce, for the appellant.

DOSTER C. J., and SMITH, J., concurring. JOHNSTON, J., dissenting from the first paragraph of the syllabus and the corresponding portion of the opinion.

OPINION

JOHNSTON, J.:

E. C. Clark was charged with counseling, aiding and abetting in the murder of W. C. Boyd, and was found guilty of manslaughter in the second degree. The sentence imposed was imprisonment at hard labor for a term of five years, and the defendant appeals, alleging that several rulings of the court were erroneous and prejudicial. The court sustained the information as against an attack that it did not specifically charge the defendant as though he was a principal with the murderer of Boyd. The information first sets out at length the charge that Harry Postlewaite murdered W. C. Boyd, stating the place where, the time when and the manner in which it was done. It then proceeds in appropriate language to allege that E. C. Clark did aid, counsel, abet, hire and command Harry Postlewaite to commit the felony and murder in the manner alleged. The statute provides that "any person who counsels, aids or abets in the commission of any offense may be charged, tried and convicted in the same manner as if he were a principal." (Gen. Stat. 1897, ch. 102, § 228; Gen. Stat. 1889, P 5180.) Under this provision the defendant might have been charged as principal with the murder of Boyd, and then if the evidence had been sufficient to prove that he aided and abetted in the murder he could have been convicted as if he were the principal. The claim is made that he can only be charged as a principal, and that, as the information charged him as accessory to the murder, it was insufficient.

He has no cause to complain. The information as drawn states the nature and cause of the accusation against him with more directness and certainty than it would have done if it had charged him as principal. He was, therefore, better informed as to the attitude which the state would assume when the case was brought to trial than if the charge had been made in the manner he suggests. The distinctions of the common law between principals in the first and second degree and accessories before the fact have been largely abolished, so that a guilty accessory may now be punished although the principal escape. (The State v. Bogue, 52 Kan. 79, 34 P. 410.) In the cited case it is remarked that "if the crime be committed through the instrumentality of another the act of such instrument essential to establish the guilt of the person on trial must be shown," and it certainly is to the advantage of the defendant to set forth a complete statement of the crime, including the essential fact that it was committed through the instrumentality of another. It is conceded that the charge is sufficient to constitute the defendant an accessory at common law, and we think it is sufficient under the statute. It is clear that the defendant suffered no prejudice by reason of the form of the information.

It is strongly urged that error was committed in the admission of testimony of Harry Postlewaite. When he was offered as a witness in behalf of the state, an objection to his competency was made, and the preliminary inquiry disclosed that about two years before that time he had been convicted of grand larceny in Sedgwick county, and being then only about seventeen years of age he was sentenced to be taken to the state industrial reformatory and there confined until the managers or trustees thereof should declare that he was fully reformed. It was not shown that a pardon had been granted nor that the sentence had in any way been abrogated. No claim of that kind was made, but on the other hand the contention is that the conviction and sentence did not affect his civil rights, and that therefore no pardon was necessary. If the conviction and sentence rendered Postlewaite incompetent to testify, it would seem that a prima facie showing of incompetency was made when proof of the conviction and sentence was offered. While all witnesses tendered in court are presumed to be competent and credible, proof of a conviction and sentence for an infamous crime creates a presumption of incompetency, and it then devolves on the party offering the witness to overcome the presumption by showing that the conviction and sentence are without force. The question remains, however, whether a person between sixteen and twenty-five years of age who has been convicted of grand larceny and is adjudged to be taken to and confined at the reformatory loses his civil rights and is incompetent to testify.

At common law a person found and adjudged guilty of an infamous crime is deemed incompetent to testify as a witness in any court of justice unless the judgment of conviction has been reversed or a pardon granted. Our statute has modified the common law to the extent that in civil cases the conviction for a crime affects the credibility but not the competency of witnesses. It is provided that "no person shall be disqualified as a witness in any civil action or proceeding by reason of his interest in the event of the same as a party or otherwise, or by reason of his conviction of a crime, but such interest or conviction may be shown for the purpose of affecting his credibility." (Gen. Stat. 1897, ch. 95, § 330; Gen. Stat. 1889, P 4414.) See, also, Winter v. Sass, 19 Kan. 556. No like provision is to be found in criminal procedure, and the one with reference to the competency of witnesses does not except convicts from the common-law rule of disqualification. (Gen. Stat. 1897, ch. 102, § 217; Gen. Stat. 1889, P 5280.) It has, therefore, been held that "a person convicted of grand larceny and sentenced to imprisonment in the penitentiary is not a competent witness in a criminal case while the sentence remains unrevoked and such person not pardoned." (The State v. Howard, 19 Kan. 507.) As the witness Postlewaite was not sentenced to imprisonment in the penitentiary, the question remains whether he is disqualified as a witness.

It is conceded that if the convict has been rendered infamous he is incompetent to testify in a criminal proceeding. But what is it that renders him infamous? Is it the nature of the crime of which he is convicted, or the character of the punishment inflicted? "Infamy" has been defined as a state of incompetency "implying such a dereliction of moral principle as carries with it a conclusion of a total disregard to the obligation of an oath." (1 Greenl. Ev., § 373.) At common law treason, felony and such crimes as involve falsehood and were deemed to affect the administration of justice work the disqualification of a witness; and prior to the adoption of the federal constitution it was held that the infamy which disqualified a convict to be a witness depended upon the character of the crime and not upon the nature of the punishment. (Pendock v. McKinder, Willes, 665; Gilbert's Ev. 143; 2 Hawk., ch. 46, § 102.) The fifth amendment to the federal constitution, which provides that no person shall be held to answer for a capital or otherwise infamous crime unless on a presentment or indictment of a grand jury, etc., has given rise to frequent definitions of the term infamous crime."

In some of the earlier decisions there was a tendency on the part of the courts to hold that the question of infamy was to be determined by the nature of the crime and not at all by the character of the punishment, but the supreme court of the United States settled that the test to be applied in determining whether an offense is an infamous crime is the character of the punishment which may be inflicted. (Ex parte Wilson, 114 U.S. 417, 5 S.Ct. 935, 29 L.Ed. 89; Mackin v. The United States, 117 id. 352, 6 S.Ct 777; In re Claasen, 140 id. 200, 11 S.Ct. 735; Ex parte McClusky, 40 F. 71; 10 A. & E. Encycl. of L. 603; 1 Bouv. Law Dict. 1026.) In Ex parte Wilson, supra, however, it was held that the real criterion to be applied in such cases is whether the crime is one for which the statute authorizes the court to award an infamous punishment, not whether the punishment ultimately awarded is an infamous one. If the accused be in danger of being subjected to an infamous punishment the crime is deemed to be infamous, although infamous punishment may not be actually inflicted. If this rule be applied to the case under consideration, it results in the conclusion that Postlewaite was infamous and incompetent to testify. Grand larceny, being a...