State v. Haines

• Court: Kansas Supreme Court
• Writing for the Court: MARSHALL, J.:
• Citation: State v. Haines, 128 Kan. 475, 278 P. 767 (Kan. 1929)
• Decision Date: 06 July 1929
• Docket Number: 28,602
• Parties: THE STATE OF KANSAS, Appellee, v. ORVILLE HAINES, Appellant

278 P. 767

128 Kan. 475

THE STATE OF KANSAS, Appellee, v. ORVILLE HAINES, Appellant

No. 28,602

Supreme Court of Kansas

July 6, 1929

Decided July, 1929.

Appeal from Bourbon district court; CHARLES F. TRINKLE, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. HOMICIDE--Second Degree Murder--Sufficiency. The evidence which is summarized in the opinion, was sufficient to sustain a verdict of guilty of murder in the second degree.

2. SAME--Credibility of Testimony. The weight of the testimony of a witness who is shown to be a "tramp" and who is impeached for truth and veracity is for the jury, not for the supreme court.

3. CRIMINAL LAW--Rebuttal Evidence. In a criminal prosecution the admission in rebuttal of the evidence of a witness whose name is not indorsed on the information is not necessarily reversible error, although the evidence of the witness should have been introduced by the state on the introduction of its evidence in chief.

4. SAME--Time for Objection to Evidence--Admissions as to Testimony of Absent Witnesses. It is not error for the court, on the request of the jury, after it has retired to deliberate, to read to the jury an admission made by counsel for the defendant concerning what the evidence of a witness for the state would be, but who was not present when he was called, where the evidence was not objected to at the time it was admitted, but which would have been inadmissible if proper objection had then been made.

5. SAME -- New Trial -- Newly Discovered Cumulative Evidence -- Diligence. Newly discovered evidence will not compel a new trial where no diligence is shown to discover the evidence before the trial and where the evidence, if produced, would be merely cumulative.

6. HOMICIDE--Sentence--Admission of Evidence of Prior Conviction. Where a person is sentenced to the penitentiary for life on his conviction of murder in the second degree the judgment will not be reversed on account of the introduction in evidence, at the time of the sentence, of the record of a judgment of conviction of a felony and sentence to the penitentiary for a term of years in another state.

7. CRIMINAL LAW--Conduct of Jury--Separation After Final Submission. Unless prejudice is shown, a judgment sentencing the defendant to the penitentiary for life on a verdict of guilty of murder in the second degree will not be reversed because the jury was permitted to separate without guard after retiring to deliberate on its verdict.

James G. Sheppard and John L. Connolly, both of Fort Scott, for the appellant.

William A. Smith, attorney-general, Roland Boynton, assistant attorney-general, Fred W. Bayless, county attorney, for the appellee; Ernest E. Blincoe, of Fort Scott, of counsel.

OPINION

MARSHALL, J.:

The defendant was tried for murder in the first degree, was found guilty of murder in the second degree, was sentenced to the penitentiary for life, and appeals.

1. The defendant argues that the evidence was not sufficient to sustain the verdict. There was evidence which tended to show that Robert L. Barton and the deceased, John L. Pool, were "tramps"; that the defendant, another "tramp," met Barton and Pool on the M.-K.-T. railroad track in or near the city of Fort Scott; that they sat down near each other on the railroad track and engaged in conversation; that the defendant produced a pistol and a blackjack; that he told the other two something of the story of his life; that Pool reached down to do something with his shoe; that the defendant jumped up, demanded to know what Pool was trying to do, pointed his pistol at him, commanded him to lie down on his belly, and threatened to "plug him"; that Pool requested the defendant not to point the pistol at him, and did not lie down; that the defendant then shot Pool in the head, but did not instantly kill him; that the defendant then commanded Barton to lie down; that Barton did so; that Pool was lying on the ground moaning; that the defendant then drew his blackjack and went to where Pool was lying; that Barton then jumped up, ran away, and immediately informed the police; and that Pool died about ten days later from the effects of the wound. That evidence, thus summarized, was given by Barton, who was the only eyewitness to the shooting except the person that did it. It is needless to say more than that the evidence amply sustained the verdict.

2. The defendant urges that the witness Barton was shown to have been of such character that he should not have been believed. He was shown to be a "tramp," and he was impeached for truth and veracity. If he told the truth the defendant was guilty. It was for the jury to say whether or not he told the truth, not for the supreme court. (State v. Plum, 49 Kan. 679, 31 P. 308; Gray v. Delay, 53 Kan. 177, 35 P. 1108; Taylor v. Modern Woodmen, 72 Kan. 443, 83 P. 1099; State v. Nichols, 117 Kan. 630, 633, 232 P. 1058; State v. Cunningham, 120 Kan. 430, 243 P. 1006.)

3. The defendant complains of the admission of the evidence of Marion Logan. His name was not indorsed on the information. He was called in rebuttal. His evidence was admitted on the theory that it was rebuttal. He testified that he was working near the place where the shooting had occurred and that he heard a report like that of a gun about 8:10 o'clock, about the time fixed by the witness Barton for the shooting to have occurred. Even if his evidence was not strictly rebuttal, it was not prejudicial error to admit it.

The third subdivision of section 62-1438 of the Revised Statutes reads:

"The parties may then respectively offer rebutting testimony only, unless the court for good reason, in furtherance of justice, permit them to offer evidence upon the original case." (See, also, State v. Moon, 71 Kan. 349, 80 P. 597; State v. Gibbs, 105 Kan. 52, 181 P. 569.)

4. The defendant complains of the court's permitting the reporter to read to the jury, on the latter's request, the statement made by counsel for the defendant concerning what a witness, who was called but was not present, would have testified to if he had been present. That statement was as follows:

"Let the record show that the witness J. A. Stanton was called; that if the witness J. A. Stanton was here he would testify that he is the regularly qualified and acting justice of the peace in Fort Scott, Kansas; that subsequent to this alleged shooting, that John L. Pool signed and swore to a complaint before the justice of the peace, naming Orville Haines in the complaint, which complaint charged him with assault with intent to kill."

After the jury had been deliberating for some time it returned to the court room and requested that the statement be read. The statement was then read, and the following occurred:

"BY THE COURT: This statement that the reporter has read is a statement of which Judge Stanton would have testified to if present, and goes in as Judge Stanton's testimony.

"BY JAMES G. SHEPPARD, ESQ.: But is not any admission on the part of the defendant at all.

"BY THE COURT: Not an admission, of course, by the defendant, of the truth of the statement, but you will consider it the same as the testimony of any other witness. Was that all, gentlemen?

"BY A JUROR: Yes, sir.

"BY THE COURT: All right, you may return to your jury room for further deliberations.

"JAMES G. SHEPPARD, ESQ. (for the defendant): To which procedure the defendant objects for the reason that such testimony, when admitted, was not agreed by the defendant to be competent, and is highly prejudicial to the defendant, and related to a proceeding in another case before said justice of the peace, different than the one on which the defendant is on trial, and because it is hearsay testimony, and because it isn't qualified as the testimony of a deceased person, and for the further reason it is highly prejudicial to the defendant and is incompetent, irrelevant and immaterial.

"BY THE COURT: Overruled."

The statement was made to the jury by counsel for the defendant during the introduction of evidence. At that time no objection was made to the submission of that evidence to the jury. The defendant, by his counsel, should at that time have objected to the introduction of that evidence. The objection came entirely too late.

5. The defendant argues that a new trial should have...