State v. Gallamore
| Citation | 83 Kan. 412,111 P. 472 |
| Decision Date | 05 November 1910 |
| Docket Number | 17,195 |
| Parties | THE STATE OF KANSAS, Appellee, v. CLARENCE E. GALLAMORE, Appellant |
| Court | United States State Supreme Court of Kansas |
Decided July, 1910.
Appeal from Barton district court.
Judgment affirmed.
SYLLABUS BY THE COURT.
1 INFORMATION--Duplicity. Sections 38 and 42 of the crimes act (Gen. Stat. 1909, §§ 2526, 2530) each contains but one offense. A count, therefore, in an information which contains the language of one of these sections only is not bad for duplicity.
2. EVIDENCE--Entries on Police Judge's Docket by Acting Officer. Where a justice of the peace is acting as police judge, as provided by section 1428 of the General Statutes of 1909, the entries on his docket are proper evidence to show the proceedings had in a case pending before him the same as if he were the regular police judge.
3. INSTRUCTIONS--Refusal--Material Portions Given Elsewhere. The refusal to give an instruction requested will not be held erroneous where the material portions of such instruction are elsewhere given.
4. INSTRUCTIONS--Applicability to the Issues. An instruction will not be deemed erroneous where there is evidence which applies to the law stated therein and justifies the finding of the jury thereunder.
D. A. Banta, for the appellant.
Fred S. Jackson, attorney-general, and James W. Clarke, county attorney, for the appellee; Elrick C. Cole, of counsel.
The appellant was convicted in the district court of Barton county of assaulting an officer, and of resisting such officer in the service of legal process. He appeals from such conviction to this court. There are two assignments of error: (1) The denial of a motion to quash the second count of the information, and (2) the admission of testimony.
In the case of The State v. Appleby, 66 Kan. 351, 71 P. 847, the information was substantially the same as in the one of which complaint is here made, and the objection made thereto was also practically the same. That case seems to end the controversy here so far as this point is concerned. The motion to quash was properly denied.
The admission of the evidence of James Clayton, police judge, concerning a case commenced before J. H. Jennison, a justice of the peace who was acting as police judge at the time the warrant was issued, was permitted, we assume, for the purpose of showing that the process which the marshal was attempting to serve when assaulted was valid and issued according to law. In the absence of a police judge a justice of the peace may act as such absent officer. (Laws 1872, ch. 100, § 77, Gen. Stat. 1909, § 1428.) We are unable, in view of this statute, to say that the admission of this evidence was erroneous. For the same purpose it was proper to introduce the record showing what was done in the police court in the cause. Entries made by either the regular police judge or the person properly acting as such are equally proper evidence of the proceedings had in a pending action, and are admissible. (In re Corum, 62 Kan. 271, 62 P. 661.)
Complaint is made of an instruction given by the court which reads:
"You are instructed that a city marshal has authority when acting with a warrant properly issued to arrest any person who commits a breach of the peace within his city, and, if the person sought to be arrested resists or flees, to use such force as may be reasonably necessary under the facts and circumstances to apprehend the offender; but before having a right to resort to such force such officer must use such language and so act as to make clear to the offender his intention then and there to take him into custody."
Just what occurred at the time of the attempted arrest is not clear. The evidence is conflicting. Under the evidence of the state the instruction is applicable and proper, and the jury seem to have taken that view of the case, and we can not, therefore, find that the instruction was erroneous.
Complaint is made of the refusal of the court to give certain instructions requested by the appellant, which read:
To continue reading
Request your trial
- State v. Moore
-
State v. Hoel
...this is sufficient." (See, also, State v. Hoel, 77 Kan. 334, 94 P. 267; State v. Hansford, 81 Kan. 300, 106 P. 738; State v. Gallamore, 83 Kan. 412, 111 P. 472; State v. Chiles, 90 Kan. 787, 136 P. 225; v. Patterson, 98 Kan. 197, 199, 157 P. 437; State v. Covington, 99 Kan. 151, 160 P. 1009......
-
State v. Donahue
...another. In re Converse, 137 U.S. 624, 11 S.Ct. 191, 34 L.Ed. 796; State v. Glenn Lumber Co., 83 Kan. 399, 111 P. 484; State v. Gallamore, 83 Kan. 412, 111 P. 472; State v. Leonard, 56 Wash. 83, 105 P. 163, 21 Cas. 69; Bishop's New Criminal Procedure, vol. 2, § 612. Defendant's second griev......