State v. Evans

• Decision Date: 16 September 1899
• Parties: STATE v. EVANS.
• Court: Kansas Court of Appeals

58 P. 240

9 Kan.App. 889

STATE v. EVANS.

Court of Appeals of Kansas, Southern Department, Central Division

September 16, 1899

Syllabus by the Court.

In a criminal action, the court refused to give an instruction requested by the defendant, to the effect that the fact that the defendant did not testify in his own behalf raised no presumption of guilt against him, and that the jury should not consider such fact, although the proposition contained in the requested instruction was not embraced in the general charge. Held error.

Appeal from district court, Marion county; O. L. Moore, Judge.

J. K Evans was convicted of violating the liquor law, and appeals. Reversed.

King &amp Kelley and Keller & Dean, for appellant.

J. T. Dickerson, for the State.

OPINION

PER CURIAM.

In the district court of Marion county, the appellant was convicted upon three counts of an information charging violations of the prohibitory law, and was sentenced to pay a fine of $100, and to be imprisoned for 30 days upon each count. A number of witnesses testified on behalf of the state, but the defendant did not testify, nor offer testimony.

Complaint is made of the court’s refusal to give instructions numbered 4 and 6, as requested by the defendant. We find that the first-named instruction was sufficiently covered by the general charge given to the jury. The other requested instruction is as follows: "The court instructs the jury that in a criminal case it is the right and privilege of the defendant to refrain from testifying in his own behalf as a witness. It is his right throughout the trial to rely on his plea of not guilty, and the fact that he does not testify in his own behalf raises no presumption of guilt against him; and in this case you are instructed that you are not to consider the fact that the defendant did not testify in his own behalf, as such fact raises no inference or presumption as to defendant’s guilt. In considering the guilt or innocence of the defendant, you must do so on the evidence proven before you, entirely independent of the fact that the defendant did not testify in his own behalf." Section 215 of the original Code provides that the fact that the defendant does not testify in his own behalf shall not raise any presumption of guilt, and that such circumstance shall not be referred to by any attorney prosecuting in the case, nor shall the same be considered by the court or jury before whom the...