State v. Ice
| Decision Date | 08 December 1928 |
| Docket Number | 28,348 |
| Citation | 127 Kan. 160,272 P. 110 |
| Parties | THE STATE OF KANSAS, Appellee, v. CALVIN ICE, Appellant |
| Court | Kansas Supreme Court |
Decided July, 1928.
Appeal from Leavenworth district court; JAMES H. WENDORFF, judge.
Judgment affirmed.
SYLLABUS BY THE COURT.
1. CRIMINAL LAW--Argument of Counsel--Improper Nonprejudicial Remarks. Statements made by the county attorney in his argument to the jury concerning matters and things not in evidence, although improper and irregular, will not be deemed such as will require the setting aside of the verdict unless they reasonably and fairly appear to have been prejudicial to the defendant and to have affected his substantial rights.
2. SAME--New Trial--Nonappearance of State's Witness Which Defendant Intended to Use. The defendant in a criminal case has no right to rely upon witnesses being present and available for use in his defense merely because the state has caused a subpoena to be issued for them or promised to have them in attendance, and his failure to be able to use them on that account will not be a ground for reversal or the granting of a new trial upon appeal.
3. SAME--New Trial--Cumulative Evidence. The rule followed that a new trial should not ordinarily be granted because of newly discovered evidence where such evidence appears to be merely cumulative or impeaching. (State v. Lackey, 72 Kan. 95, 82 P. 527; State v. Miller, 90 Kan. 230, 133 P. 878.)
F. B Dodds, of Lawrence, for the appellant.
William A. Smith, attorney-general, Jesse A. Hall, county attorney, James B. Kelsey, assistant county attorney, and John A. McLoughlin, deputy county attorney, for the appellee.
The defendant in this case was convicted of grand larceny, and appeals, alleging error of the trial court in refusing to grant a new trial for misconduct of the prosecuting attorney and on account of newly discovered evidence, which the defendant with diligence was unable to procure for the trial.
The misconduct of which complaint is made was, first, the making of statements by the county attorney in his argument to the jury with reference to the defendant being a bad character who was wanted by the officers of Douglas county, which statements were calculated to produce passion and prejudice in the minds of the jurors. The record does not show what, if any, objection was interposed to such statement when they were being made nor the ruling of the court thereon. There is no showing that it produced a prejudice against the defendant, but we are left to infer that it did. The exact language is not given. A reviewing court cannot from this limited showing say such statements were prejudicial.
"Certain language used by one of the prosecuting attorneys in which he expressed his personal opinion as to the guilt of the defendant is not deemed to be such as to require the setting aside of the verdict."
"Language used by the county attorney in addressing a jury, though somewhat improper, will not be deemed materially prejudicial unless such as fairly to lead to the conclusion that the jury were thereby swerved from the performance of their duty."
"A remark by the county attorney as to a matter not in evidence, although irregular, is not a ground of reversal where it does not appear to have prejudiced the defendant or affected his substantial rights."
The further misconduct charged to the county attorney was leading opposing counsel to believe that a certain witness had been subpoenaed, and in having actually subpoenaed another witness, both of whom failed to appear at the trial; and because of their absence the defendant was unable to use them as witnesses. Defendant says he relied upon their being present, and when they were not available he was deprived of their testimony by accident and surprise. It has never been the rule in this state that a defendant could rely upon the presence of witnesses called by the state, for, although regularly subpoenaed and actually in the court room, they may be excused by the party calling them. The defendant should have arranged to have present the witnesses whom he expected to use, without depending upon the state for that purpose, and he will not be entitled to a new trial or reversal because of their absence when he relied upon the state to have them present.
One of these witnesses was the stenographer who took the testimony at the preliminary hearing and made a transcript of it. The record does not show any request for delay to have her identify the transcript or any attempt to introduce the evidence taken at the preliminary hearing. Without an effort having been made to procure this testimony for the trial, or a refusal of the court to afford an opportunity to obtain it, there is nothing here to review. The testimony of the other witness is claimed to be newly discovered, although his name was mentioned at the trial and his presence there was expected by the defendant.
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...20 Kan. 650; State v. Miller, 90 Kan. 230, 133 P. 878, Ann.Cas.1915B, 818; State v. Roberts, 95 Kan. 280, 303, 147 P. 828; State v. Ice, 127 Kan. 160, 272 P. 110. third objection to the judgment is based on the trial court's failure to instruct the jury on the law of manslaughter. But there......
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