State v. Finch

• Decision Date: 07 July 1905
• Docket Number: 14,319
• Citation: 71 Kan. 793,81 P. 494
• Parties: THE STATE OF KANSAS v. O. W. FINCH
• Court: Kansas Supreme Court

81 P. 494

71 Kan. 793

THE STATE OF KANSAS v. O. W. FINCH

No. 14,319

Supreme Court of Kansas

July 7, 1905

Decided. July, 1905.

Appeal from Finney district court; WILLIAM EASTON HUTCHISON, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. HOMICIDE--Election of Counts. In a prosecution upon several counts, where an election is proper and necessary upon which of the counts the state will rely for conviction the appropriate time to make such election is at the close of the testimony in behalf of the state.

2. HOMICIDE--Withdrawal of Testimony. While the withdrawal of testimony erroneously admitted, coupled with an instruction to the jury to disregard it, will ordinarily cure the error, there may be testimony so material, and of a kind calculated greatly to prejudice the jury, that a withdrawal will not remove the prejudice nor cure the error.

3. HOMICIDE--Statements of Defendant--Admissibility. The testimony of a witness subsequently prosecuted for manslaughter, taken at a coroner's inquest in pursuance of a subpoena, where such witness was not at the time under arrest or accused of the crime, and where there is nothing indicating that the testimony was involuntarily given, is admissible against him when he is put upon trial for the commission of the offense.

4. HOMICIDE--Response to a Subpoena--Not Involuntary. Such testimony is not deemed to be involuntary merely because it was given in response to a subpoena.

5. PRACTICE, DISTRICT COURT--Recalling Jury. It is not error for a court to recall a jury after they have deliberated for some time to inquire as to the probability of an agreement upon a verdict, and also whether the failure to agree was caused by a misunderstanding of the instructions or of the evidence, nor to ascertain from the foreman how the jury were divided in point of numbers, without indicating whether they were for or against the defendant.

C. C. Coleman, attorney-general, and Albert Hoskinson, county attorney, for The State.

G. L. Miller, for appellant.

JOHNSTON C. J. All the Justices concurring.

OPINION

JOHNSTON, C. J.

In an information containing two counts O. W. Finch was charged with manslaughter in the third and fourth degrees for the killing of M. Brooks. He was found guilty of manslaughter in the fourth degree, as charged in the second count. In his appeal numerous errors are assigned, some of which are not deemed to be material. The information, which closely follows the language of the statute, is challenged, but it clearly appears to be sufficient.

After the opening statement had been made in behalf of the state the defendant asked that the county attorney be required to elect under which count of the information he would rely for a conviction. The motion was denied, and without error. An election was required at the close of the testimony for the state, and the county attorney then elected to stand on the charge in the second count. That is an appropriate time to make an election when an election is necessary, and certainly there is no ground to complain that it was not made earlier.

The questions asked of the witness for the state on cross-examination as to whether the shooting was accidental involved conclusions related to one of the main issues submitted to the jury, and hence were properly excluded.

Nor was any error committed in the admission of the testimony as to conversations with the defendant in regard to his having and handling a gun before the shooting, and the use he intended to make of it. It went to the culpable negligence charged against him.

The principal complaint of the defendant is of the admission of testimony given by himself at the coroner's inquest. The stenographer who took the testimony was introduced as a witness, and after qualifying she read from her notes the testimony that the defendant had given. There was an objection that her name had not been indorsed on the information until after the defendant had pleaded--which is immaterial--and for the further reason that the defendant was an involuntary witness at the coroner's inquest, and by introducing his testimony he was in fact made a witness against himself, in violation of the constitution. The objection was overruled, and the testimony admitted. Later the court on its own motion struck it out, and advised the jury that it was withdrawn from their consideration.

The withdrawal of testimony erroneously admitted, coupled with an instruction to the jury to disregard it, will in most cases cure the error. If, however, the testimony is very material, and of a kind calculated greatly to influence and prejudice the jury, a withdrawal of it with an instruction to overlook it may not remove the prejudice or cure the error. Assuming that the effect of the evidence was not removed by its withdrawal, we find nothing in the record showing that it was inadmissible.

Like others, the defendant was subpoenaed as a witness to testify at the inquest as to the cause of Brooks's death. For aught that appears he may have been anxious and swift to testify. There is not a hint in the record that he was led to testify through any inducement of promised favor, or by reason of any fear, menace, or duress. Ordinarily, all that a defendant has said pertinent to the subject of inquiry may be received in evidence against him. The exceptions to this rule are when admissions have been extracted from him by means of promises or threats, or where testimony given or statements made have been compulsory or involuntary. The test of admissibility in this and like cases is, Were the statements made voluntarily and without compulsion? In this instance they were made in an inquiry where the defendant was a witness and not a party, and where he might have claimed the privileges of a witness. He was not in custody, nor had any accusation been made against him. Indeed, it does not appear that Brooks's death was then thought to have been caused by any criminal act. The constitutional limitation that no person shall be a witness against himself should be broadly interpreted so as to give full protection to one accused of crime, but neither the constitutional limitation nor the rule of the common law requires the exclusion of statements or testimony voluntarily given. An unsworn confession, made to an officer by one charged with crime and under arrest, may be given in evidence against him, providing it was freely and voluntarily made. The fact that a statement with reference to the cause of a death is made under oath by one not accused nor in custody can hardly be less reliable. If the testimony that defendant gave was incriminating, was it inadmissible merely because he was subpoenaed as a witness and gave his testimony at a formal inquest before the coroner? There was no compulsion to testify, unless the mere fact that he was subpoenaed to give his testimony can be so regarded. There is considerable diversity of opinion in the cases as to the admission of such testimony, and these may be found compiled and classified in Wigmore on Evidence (vol. 1, § 851, and the appended note).

In an early New York case the subject was examined and the cases reviewed, and it was held that upon a trial for murder statements made by the prisoner as a witness at a coroner's inquest upon the body of the deceased, when the witness was not under arrest or accused of the crime, were admissible against him. (Hendrickson v. The People, 10 N.Y. 13, 61 Am. Dec. 721.) In a later case a witness at a coroner's inquest who appeared in response to a subpoena testified, and on his subsequent trial the testimony was admitted against him, although he knew at the time he testified that he was under suspicion of having committed the crime under investigation and would probably be arrested. (Teachout v. The People, 41 N.Y. 7.)

In People v. Molineux, 168...