State v. Collins

• Decision Date: 07 January 1885
• Citation: 5 P. 368,33 Kan. 77
• Parties: THE STATE OF KANSAS v. CHARLES COLLINS, et al
• Court: Kansas Supreme Court

5 P. 368

33 Kan. 77

THE STATE OF KANSAS v. CHARLES COLLINS, et al

Supreme Court of Kansas

January 7, 1885

Appeal from Washington District Court.

AT the November Term, 1883, of the district court, defendants Charles Collins and I. S. Collins were found guilty of assault and battery, and each was sentenced to pay a fine of $ 10 and costs. They appeal. The facts are stated in the opinion.

Judgment reversed and cause remanded for a new trial.

J. W Rector, and J. G. Lowe, for appellants.

Charles Smith, county attorney, for The State.

JOHNSTON J. All the Justices concurring.

OPINION

JOHNSTON, J.:

The appellants in this case were accused of assault and battery, and tried, first, before a justice of the peace of Washington county, Kansas, and later in the district court of that county, where they were convicted, and each was adjudged to pay a fine of $ 10 and costs. From this judgment they prosecute an appeal to this court. Their principal complaint is, that the court refused to permit them to cross-examine the complaining witness regarding her motives and interest in the prosecution, and in excluding testimony given by her, which they claim would have shown such bias, prejudice and ill-will toward the defendants as must necessarily have affected her credibility.

The facts, briefly stated, are these: On March 24, 1883, Mary C. Murphy was living with her husband on a farm adjoining that of the defendant I. S. Collins; a herd of cattle belonging to Collins strayed away from his farm and went upon the premises of Murphy, where they were pursued by I. S. Collins and his son, Charles Collins; when Charles Collins undertook to go upon the Murphy farm, Mrs. Murphy came out and forbade him to come out on their premises, and resisted him in his effort to drive the cattle away from Murphy's and back to the Collins farm, whence they had strayed. After some scolding between the parties, it is claimed by Mrs. Murphy that Charles Collins struck her on the shoulder and head, and that in doing so, he was encouraged, aided and abetted by his father, I. S. Collins. Immediately after this occurrence, Mrs. Murphy moved into Washington, the county seat of Washington county, where she resided for some time. This prosecution was not begun until August 14, 1883, and then it was instituted before a justice of the peace at Hollenberg, fourteen miles distant from Washington, where the complaining witness resided.

It appears that about one week prior to the commencement of this prosecution by Mrs. Murphy, I. S. Collins began a civil suit against her husband, son and others to recover ten thousand dollars in damages. For the purpose of throwing doubt upon the credibility of the witness, Mrs. Murphy, the defendants sought to show that this action was not prosecuted in good faith, but rather through malice, and was an outgrowth of the civil suit and of the bad feeling engendered by the bringing of that suit; that the criminal action was not instituted by her for nearly five months after her difficulty with the Collinses, and that she did not regard the defendants as guilty of any offense, and only caused their arrest and prosecution at the instance, and in pursuance of an arrangement with the defendants in the civil suit brought by Collins; that she did not request the county attorney, who had his office in the city where she resided, to prosecute the action, but that it was conducted before the justice of the peace and prosecuted by private counsel retained by the defendants in the civil suit, and the same counsel employed by them to defend in that suit; that before the criminal action was commenced she and her husband had changed their residence from Washington to Dickinson county, but that as soon as the civil suit was begun, the defendants herein brought her back to Washington county and procured and induced her to bring the criminal action, and thus aid them in the defense of the civil action; also, that soon after the alleged assault she gave a statement of the facts differing materially from the testimony given by her on the trial. She was the principal witness upon the part of the state, and after her examination-in-chief had been completed, the defendants undertook upon cross-examination to inquire into the foregoing facts, and also her state of mind toward the defendants. A great many questions were asked her and in a variety of forms, all of which, upon objection by the state, were excluded by the court. She was interrogated in substance as follows: Whether soon after the alleged assault she consulted the county attorney about the matter, and gave him a different statement of the facts from the one now made by her; whether on such statement he advised her not to prosecute the defendants; whether she purposely concealed the fact of the prosecution from the county attorney; whether she refused to notify the county attorney of the commencement of the prosecution; whether the county attorney was present at the trial before the justice of the peace; whether she did not employ private counsel to prosecute this criminal action; whether prior to the commencement of the civil action against her husband, son, and neighbors, by the defendant I. S. Collins, she had made any complaint about the alleged assault upon her; whether she would have prosecuted this action at all, if said civil action had not been commenced, and if she was not actuated by malice...