State v. Dye

• Decision Date: 08 October 1938
• Docket Number: 33884.
• Citation: 83 P.2d 113,148 Kan. 421
• Parties: STATE v. DYE. [*]
• Court: Kansas Supreme Court

83 P.2d 113

148 Kan. 421

STATE v. DYE. ^[*]

No. 33884.

Supreme Court of Kansas

October 8, 1938

Syllabus by the Court.

Where defendant, in support of motion for new trial after having been on found guilty of larceny, called members of jury as witnesses and asked them if during deliberations on the verdict they, or any of them, had considered or discussed defendant's failure to testify on his own behalf, an objection to the competency of such questions was properly sustained as tending to impeach the verdict.

A juror cannot be heard to impeach his verdict in a criminal prosecution by saying that in the deliberations he or any other member of the jury took into consideration defendant's failure to testify on his own behalf, where jury was instructed not to consider defendant's failure to testify.

In prosecution for larceny of $3,000, wherein defendant's defense was that prosecuting witness had loaned him money in question rather than that he had taken it from her pocketbook as testified by her, court did not err in excluding a receipt executed by prosecuting witness after alleged larceny for assignment by defendant of an oil and gas lease to prosecuting witness with provision for reassignment on payment of the $3,000 "borrowed," since evidence introduced to show a compromise, settlement, or ratification made by the party directly injured by a major offense charged will not constitute a bar to conviction and punishment for the commission of a public crime or wrong.

1.Where a defendant, after having been found guilty of a felony by a jury in the district court and in support of his motion for a new trial, calls members of the jury as witnesses and asks them if during the deliberations upon the verdict they or any of them had considered or discussed the failure of the defendant to testify in his own behalf, an objection to the competency of any such questions should be sustained as tending to impeach the verdict.

2.A juror cannot be heard to impeach his verdict by saying that in the deliberation he or any other member of the jury took into consideration the matter of the defendant having failed to testify in his own behalf when the jury was instructed not to do so.

3.Following the rulings in the cases of State v Newcomer,59 Kan. 668, 54 P. 685, andState v Craig,124 Kan. 340, 259 P. 802, 54 A.L.R. 1233, it is held that exhibits and other evidence introduced or offered to show a compromise, settlement or ratification made by the party directly injured by a major offense charged will not constitute a bar to conviction and punishment for the commission of a public crime or wrong.

Appeal from District Court, Reno County; John G. Somers, Judge.

Charles E. Dye was convicted of larceny, and he appeals.

Arthur H. Snyder, of Hutchinson, for appellant.

Clarence V. Beck, Atty. Gen., and Wesley E. Brown, J. Richards Hunter and Gerald C. Stover, all of Hutchinson, for appellee.

HUTCHISON Justice.

This was a case of larceny, where the defendant was charged with having unlawfully, feloniously and willfully stolen, taken and carried away and converted to his own use on November 1 1935, in Reno county, Kan., three thousand dollars, lawful money of the United States, belonging to Mrs. Jennie Wynn.

The complaint was sworn to by Mrs. Jennie Wynn on April 29, 1936.The defendant waived preliminary hearing and was bound over to the district court of Reno county, Kan., and gave bond for his appearance in district court.Upon trial had in the district court of Reno countythe defendant was found guilty by a jury, which rendered such verdict on January 18, 1938, and a motion of defendant for a new trial was denied on February 5, 1938.

The appeal taken to this court involves the following questions, as stated by the appellant:

"1.Whether or not the state must prove venue.

"2.Must complaint be drawn and crime charged before complainant subscribes signature and swears to same.

"3.Was competent testimony excluded and incompetent testimony admitted.

"4.Were the state's attorneys guilty of misconduct.

"5.Is the verdict contrary to the law and the evidence.

"6.Whether or not the Court can refuse to hear counsel for defendant on motion for new trial.

"7.Must the Court hear the testimony of the jurors present at the hearing on motion for new trial of their misconduct during the deliberation on the verdict.

"8.Can the jurors permit themselves, in arriving at a verdict of guilty, consider the fact that the defendant did not testify and be influenced by that fact.

"9.Did the Court err in overruling motion for new trial."

The evidence of the state was by Mrs. Wynn, the prosecuting witness, and one other witness, Mr. Gray, the cashier of a bank at Hutchinson, Kan.The evidence of the defendant was by the same Mr. Charles Gray, Mr. C. O. Myers and Mr. Wm. T. Birzer.Several exhibits were introduced and offered by each side.

The evidence of Mrs. Wynn was briefly to the effect that she was 74 years of age, had been a widow for 7 years and lived in Larned, Kan., since 1902; that she first met the defendant in March, 1935, that he came to her house and introduced himself as wanting to buy her house, that she told him she would take $3,000 cash for it, that he came about twice a week after that for some time and told her he had no cash but would trade her other property for it, but she told him she was not interested in any real estate and would take nothing but cash for it.He then offered to sell her oil leases, which she refused.That in October, 1935, she had some correspondence with a banker in Nebraska about getting some money from that bank in thousand dollar bills, and at one of the several calls made at her home this correspondence was on her table, and as she returned from the kitchen defendant had one of these letters in his hand, the other laying on the table; that she went to Nebraska and returned therefrom on October 26.Defendant called again on October 28 and wanted to borrow some money.He called three times that week.On the last of these visits he picked up a paper off her table with some writing on it and said it was good security for the loan that he wanted, but she told him she would not loan him any money.He left some papers on the table; she did not pick them up until after she lost the money; they were introduced as exhibits (one a note for $3,000, signed by defendant, and the other an assignment of an oil lease, the latter bearing the date of November 7, 1935); that when he left she started down town on business the first day of November; that he met her down town and insisted on her getting into his car.She refused several times and later consented, and he drove her to Hutchinson against her protests; that they went to the Leon Coffee Shop for lunch, that she went into the ladies' rest room and looked in her hand bag and saw therein the three thousand dollar bills and other money; that they sat at a table for two only and she placed the hand bag on the table where it leaned against the wall; that later the defendant called her attention to something unusual on the street at her back and she turned her body around so as to see it but saw nothing strange and turned back; that after lunch they drove around town and the defendant parked the car and excused himself.While he was gone about thirty minutes she opened her hand bag and discovered her three thousand dollar bills were gone.When he returned she asked him if he had taken the money out of her purse and he stated that he had, that he needed it and would pay her eight percent interest.She told him she wanted her money back right away.He started to drive back to Larned and she asked him to let her out at Kirk's headquarters in Hutchinson where she knew the people, but he would not do it and they quarreled all the way back to Larned.She reported the matter to Mr. Allison, at Hutchinson, on November 4th.On the 5th of November, after he had taken the money, he came to her place and left his note for $3,000, dated November --, 1935.At that time she told him about having reported him to the officers for arrest, and he coaxed her not to arrest him.On October 28th, he left on her table exhibits 1 and 2, that she was compelled against her will to sign a receipt for these, that she on the 9th of November recorded the assignment left with her in the office of the register of deeds of Barton county.She also in cross examination denied having told the register of deeds of Barton county and Mr. C. O. Miller that she had loaned the defendant $3,000 and admitted that $250 had been returned to her and she understood her attorneys had collected something additional.She identified many letters written her by defendant during November and succeeding months.There are some inconsistencies and confusion in her testimony as to dates, but the order and succession of occurrences are chronological.

The other witness called by the state was Mr. Gray, the cashier of the bank at Hutchinson, who said the defendant called at the bank on November 1st or 2nd and cashed a thousand dollar bill the number of which corresponded with one of those owned by Mrs. Wynn, who had furnished the numbers of all three.

The testimony introduced by the defendant was that of the same Mr. Gray who testified as to the good standing of the defendant.Mr. Myers, register of deeds of Barton county, testified as to the recording of the assignment on November 9, 1935 and also as to Mrs. Wynn having told him she had loaned the defendant $3,000.Witness Miller testified as to a similar conversation with Mrs. Wynn.Mr. Birzer testified as to having leased the land for oil and gas to defendant on October 30th and having received the pay therefor on November 2nd or 3rd.

On the hearing of...