State v. Howland

• Decision Date: 12 June 1943
• Docket Number: 35641.
• Citation: 157 Kan. 11,138 P.2d 424
• Parties: STATE v. HOWLAND.
• Court: Kansas Supreme Court

138 P.2d 424

157 Kan. 11

STATE v. HOWLAND.

No. 35641.

Supreme Court of Kansas

June 12, 1943

Rehearing Denied July 7, 1943.

Syllabus by the Court.

Character evidence, to be relevant, must be confined to the particular trait involved in the nature of the offense charged, and evidence of defendant's reputation for truth is inadmissible when not attacked by the state.

In prosecution for rape, character evidence offered by defendant which did not bear on trait involved in the nature of the offense charged was properly excluded.

Communications between court and jury, in which the court made oral response to questions by the jury whether a verdict of not guilty could be returned on one count and guilty verdict on another did not establish that jury reached its verdict by "compromise", where court stated that verdict should not be reached by chance but should be one in which the jury was satisfied. Gen.St.1935, 62-1447, 62-1448 62-1603.

Where a juror propounds a question to the court, the court may make a direct answer without reducing the same to writing, provided in so doing it does not make an independent statement of a rule of law. Gen.St.1935, 62-1447.

The statute prohibiting the giving of oral instructions was intended to give defendant the exact rulings of the court in order that he may avail himself of any error in those rulings, but was not intended to hamper or restrict communications between court and jury and should be so construed as fairly to secure that purpose and not made a mere weapon of technical error. Gen.St.1935, 62-1447.

Trial court's oral response to jury's question whether verdict of guilty could be returned on one count and verdict of not guilty on another did not disclose that trial court instructed jury on any new matter, but merely answered the questions asked. Gen.St.1935, 62-1447, 62-1603.

Prejudicial error is not to be presumed from mere irregularity or misconduct of jury. Gen.St.1935, 62-1447, 62-1603.

Evidence that bailiff and two jurors left courthouse during deliberation and went to the judge's room to request that certain testimony be read to jury did not establish illegal "separation of jury" or "misconduct", in the absence of showing that what occurred prevented jury from giving defendant's case fair and due consideration. Gen.St.1935, 62-1448, 62-1603, 62-1718.

1. In a trial for a violation of the crimes act, character evidence offered by the defendant, to be relevant, must be confined to the particular trait involved in the nature of the offense charged, and evidence of reputation of the accused for truth and veracity is inadmissible when not attacked by the state.

2. Where, after the jury has retired to deliberate upon its verdict, the jury are returned into court, and members of the jury propound questions to the trial court, it may make a direct answer without reducing the same to writing, providing in so doing it does not make an independent statement of a rule of law.

3. The mere fact a jury has been separated without leave of court does not constitute such misconduct as to constitute prejudicial error--it must be established that such misconduct tended to prevent a fair and due consideration of the case by the jury.

4. The record examined in a criminal trial, and held, (1) that the trial court did not erroneously exclude any evidence offered by the defendant; (2) that the verdict returned by the jury was not the result of barter of votes or of compromise; (3) that the trial court did not instruct the jury orally and not in writing as required by the code of criminal procedure; and (4) that the jury was not illegally permitted to separate to the prejudice of the defendant.

Appeal from District Court, Greeley County; Fred J. Evans, Judge.

Theodore W. Howland was convicted of statutory rape, and he appeals.

HOCH and SMITH, JJ., dissenting.

J. H Jenson, of Oakley, for appellant.

E. E. Pedroja, of Eureka, (A. B. Mitchell, Atty. Gen., William P. Timmerman, Asst. Atty. Gen., and Richard A. Floyd, Co. Atty., and Martin F. Trued, both of Tribune, on the brief), for appellee.

THIELE Justice.

This was a criminal action in which the defendant was charged in two counts with the crime of statutory rape. He was acquitted on one count and convicted on the other and appeals, specifying claimed errors which, in his brief, are treated under three heads--that the trial court erred in excluding certain testimony, that the verdict was the result of bartering and exchanging votes, and that the jury was illegally permitted to separate.

The contention as to exclusion of evidence arises from the following: After the defendant had testified in his own behalf, he offered to prove by other witnesses that his reputation in the community for truth and veracity was good. The trial court ruled that character evidence must be pertinent to the offense for which the defendant was being tried and sustained an objection. The evidence was produced on the hearing of a motion for a new trial, and the question is properly before us. In support of his contention the evidence was relevant and competent and that the trial court erred in excluding it, appellant directs our attention to State v. Scholl, 118 Kan. 629, 236 p. 816, and especially to the italicized portion of the following sentence: "Here, good reputation in the community was merely a fact tending to show that defendant would not be likely to bargain for possession of a stolen steer, knowing of the theft, and would not be likely to give false testimony." 118 Kan. loc. cit. 634, 236 P. loc. cit. 818. In that case defendant was charged with receiving stolen property. The trial court limited the number of his witnesses to prove his general reputation for obedience to law and for truthfulness, to three, and it was the limitation on number of witnesses and not relevancy or competency of evidence which was being discussed. Apparently the state had made no objection to defendant having been permitted to show his reputation for truth and veracity. The isolated sentence on which appellant relies can hardly be said to sustain his contention the court erred in excluding the testimony offered. The question received some consideration in State v. Frederickson, 81 Kan. 854, 106 P. 1061, where a defendant, charged with manslaughter, put in issue his character for being a peaceful and law-abiding citizen. The state was permitted to controvert this showing with evidence of specific acts tending to show the contrary. The court discussed the nature of character evidence, and held, in part: "When the defendant in a criminal action undertakes to establish good character as an element of his defense to the charge, he is limited in his proof to testimony regarding his general reputation for possessing the traits involved, in the community where he resides, and the state, in rebuttal, is limited to the same kind of testimony." Syl. ¶ 1.

Text books on criminal evidence and evidence generally and other authorities state the rule to be that character evidence, to be relevant, must be confined to the particular trait involved in the nature of the offense charged, and that evidence of reputation of the accused for truth and veracity is inadmissible when not attacked by the state. See Underhill's Criminal Evidence, 4th Ed., § 166, p. 288; Wharton's Criminal Evidence, 11th Ed., §§ 330, 331, pp. 458, 460; Wigmore on Evidence, 3rd Ed., § 59, Vol. 1, p. 458; 16 C.J. 582; 22 C.J.S., Criminal Law, § 677; 32 C.J.S., Evidence, § 427, p. 62; 20 Am.Jur. 302, et seq.

The proffered evidence did not bear on the trait involved in the nature of the offense charged, and the trial court committed no error in excluding it.

The next contention of the appellant is that the verdict was the result of barter and exchange of votes for acquittal on one count and for conviction on the other, to which is coupled a contention that the court orally instructed the jury. After the jury had retired to deliberate on its verdict, it returned into court, and upon being asked by the court whether it had some communication to make to the court, a number of questions were asked by the foreman and other jurors, to which the court made answer, and concerning which counsel for defendant made suggestions. No purpose will be served by here setting out in any detail the questions asked or the answers given. We have examined the record as abstracted and which seems to be almost a complete transcript. Apparently some of the jurors were in doubt whether they could convict on one count and acquit on the other, or whether they could agree on one count and disagree on the other and the manner in which they could reach a verdict. With reference to whether there could be conviction on one count and acquittal on the other, the court advised the jury that the instructions said there could. The foreman stated the jury hardly knew how to arrive at a decision like that, and he was afraid it would be illegal to vote first to commit themselves, and then to vote on each count, to which the court responded that what the jury did nobody was supposed to know. After some further questions, counsel for defendant put forward the idea the jury was suggesting a compromise verdict. Further questions evoked a statement from the court that the jury should not arrive at its verdict by any kind of chance, and that when it arrived at a verdict, it should be one they could come into court and say it was one with which they were satisfied.

Appellant places his own construction on all that was said and reaches a conclusion that the court told the jury to reach a verdict in any manner they chose and how they did was their and no other person's business. As we read the record, however there is little justification for the...