State v. Lewis

• Decision Date: 11 January 1896
• Docket Number: 10425
• Citation: 43 P. 265,56 Kan. 374
• Parties: THE STATE OF KANSAS v. J. A. LEWIS
• Court: Kansas Supreme Court

43 P. 265

56 Kan. 374

THE STATE OF KANSAS v. J. A. LEWIS

No. 10425

Supreme Court of Kansas

January 11, 1896

Decided January, 1896.

Appeal from Graham District Court.

J. A LEWIS, convicted of larceny, appeals. The facts are stated in the opinion, filed January 11, 1896.

Judgment reversed.

G. W Jones, H. J. Harwi, and Z. C. Tritt, for appellant.

F. B Dawes, attorney general, and. F. D. Turck, county attorney, for The State.

JOHNSTON J. All the Justices concurring.

OPINION

JOHNSTON, J.:

J. A. Lewis appeals from a conviction upon a charge of stealing six hogs, and the punishment imposed was imprisonment in the penitentiary for a term of two years. A number of errors are assigned upon rulings made at the trial, but some of them are not of sufficient importance to require notice or comment.

The refusal of a continuance because of an absent witness is strongly urged as a ground of reversal The testimony which it is said the witness would give was undoubtedly material, but we are not convinced that sufficient diligence to obtain it was shown. For several months after his arrest and before the trial the defendant knew that the witness intended to remove to another state to which her husband had preceded her, but no effort was made to take her deposition. He states that she had promised to postpone going until after the trial, but she left the state some time before the trial, and the defendant knew that she went away, as well as the place to which she went, but no steps were taken by him to procure her testimony.

Complaint is also made of the production before the jury of meat found by the sheriff, with the aid of a search-warrant, in the possession of the defendant. There was testimony tending to show that the hogs alleged to have been stolen were driven a short distance from the place where they were kept, when some of them were killed and loaded into a wagon and that those in search found tracks of the wagon as well as drops of blood on the grass and the ground. The tracks were found to continue until they came to the premises of the defendant, and near his granary and stable blood and other traces of their presence were found. The tracks were followed beyond the defendant's place for a distance of about two miles. One witness testified that on that day he was at the granary and found it locked, but in looking through a crack he discovered a pile of meat partly covered over in the granary, and that, shortly after the searching party went past the defendant's place, the defendant and another loaded the meat into a wagon and drove away with it. About a month after the commission of the alleged offense a search-warrant was procured authorizing a search of the defendant's premises, and at that time...