State v. Long
| Decision Date | 06 July 1918 |
| Docket Number | 21,244 |
| Citation | 175 P. 145,103 Kan. 302 |
| Parties | THE STATE OF KANSAS, Appellee, v. JOHN LONG, Appellant |
| Court | Kansas Supreme Court |
Decided July, 1918.
Appeal from Barton district court; DANIEL A. BANTA, judge.
Judgment affirmed.
SYLLABUS BY THE COURT.
1. HOMICIDE--Evidence Warranted Verdict. The evidence was sufficient to warrant a verdict of guilty of murder in the second degree.
2. SAME--Evidence--Repetition of Vulgar and Obscene Language. A conviction of murder in the second degree will not be reversed on account of witnesses not being permitted to repeat vulgar and obscene language used in threats by the deceased toward the defendant, where the witnesses give the other language used in the threats, repeat the profane language, and describe the vulgar and obscene language.
3. SAME--Evidence--Improper Cross-examination. On the cross-examination of a witness, it is not error to exclude evidence on matters not testified to in chief, although that evidence concerns transactions connected with the facts in controversy.
4. SAME--Evidence Properly Rejected. There is no reversible error in refusing to permit a witness to give the substance of a conversation, where the witness states that he cannot give the substance of that conversation.
5. SAME--Self-defense -- Evidence by Defendant. On a murder trial, where the accused testifies that the deceased had threatened to kill him; that he believed the deceased intended to kill him, and was trying to do so; and that the accused was acting in self-defense, it is not error to refuse to permit him to testify further concerning what he believed to be the extent of his danger.
6. SAME--Evidence--General Reputation of Deceased. One who is on trial charged with murder may show, by general reputation that the deceased was a quarrelsome, turbulent, and dangerous man, and may show that information of that fact had been communicated to him; but a judgment of conviction will not be reversed for error in excluding evidence of communication of that information, where the whole of the evidence established that the defendant must have known, at the time of the homicide, that the deceased was quarrelsome, turbulent, and dangerous.
7. SAME--Refusal to Reopen Trial--No Error. It is not error to refuse to reopen a trial for the purpose of permitting the introduction of evidence, where that evidence was known to the party making application, and no sufficient reason is given for not introducing the evidence before the trial closed.
8. SAME--Proper Admonition to Jurors. On a murder trial, when it becomes necessary to permit one of the jurors to go to his home, it is not error for the court to strictly admonish the jurors concerning their duty while the one juror is away, and it is not error for the court to call the attention of the jurors to the fact that rumors concerning their misconduct have been in circulation.
9. SAME--Arguments of Counsel. There was nothing in the argument of counsel to justify a reversal of the judgment.
Carr W. Taylor, of Hutchinson, and Charles L. Carroll, of Great Bend, for the appellant.
S. M. Brewster, attorney-general, S. N. Hawkes, and John L. Hunt, assistants attorney-general, Clyde Allphin, county attorney, F. V. Russell, and R. C. Russell, both of Great Bend, for the appellee.
The defendant appeals from a judgment convicting him of murder in the second degree. He complains of a number of matters.
1. One of these complaints is "that under no construction that can be placed upon the evidence in this case was the defendant, under the law, guilty of either degree of murder; and that the verdict should have been set aside and a new trial granted because the evidence shows conclusively that no offense greater than some degree of manslaughter was committed.''
There was evidence which tended to show the following facts:
John Long operated a gambling room in Hoisington, in Barton county. On the night of March 19, 1916, he, with Robert Lockridge, William Kimball, and a number of others, was in this room gambling--playing poker and shooting craps. A quarrel arose, and fierce fights ensued between Lockridge and Kimball, in which Long took part. The entire party then left the gambling room--Kimball going to his room in a rooming house, and Long going to a restaurant. While Long was in the restaurant, Lockridge came in. Long saw Lockridge, and immediately went out the back door. Lockridge soon followed. Long went to Kimball's room and asked for admission; this was at first refused, but upon a second request, Kimball recognized Long's voice and admitted him. Long at once asked Kimball where his gun was. Kimball had a .45-caliber revolver in his hand. Long took the gun away from Kimball. He advised Long not to go outside and do any shooting. Long immediately went outside, and on the sidewalk said: "God damn you, I will shoot you." He soon commenced shooting at Lockridge. The shooting occurred in an alley. Long shot at Lockridge four or five times, and hit him in the back. Lockridge had no firearms, and, when shot, was running away from Long.
Much of the evidence was conflicting, and many of the facts above stated were disputed by abundant evidence. The facts detailed were not all that tended to prove the defendant's guilt, but they were sufficient to warrant the jury in finding the defendant guilty of murder in the second degree.
2. The defendant was not permitted to prove the exact language used by Lockridge at the time of the shooting and immediately prior thereto. The witnesses were permitted to testify that Lockridge threatened to kill the defendant; that Lockridge cursed the defendant (the witnesses used the exact language of Lockridge in these respects); and that Lockridge applied to the defendant vile and obscene epithets, such as the witnesses did not want to repeat in the court room. The defendant insisted that the exact language should be repeated. The court said: This rule was followed throughout the trial. It appeared on the evidence introduced on the motion for a new trial that the epithets applied to the defendant by Lockridge were of the vilest character. Probably the witnesses should have been required to repeat the exact language, but it was not reversible error to refuse to do so. No substantial right of the defendant was thereby violated. The jury must have understood that language which could not be repeated in the court room must have been of the vilest character. The defendant received all the benefit from that evidence that could have been received from the use of the exact language. The conclusion here reached is supported by 2 Wigmore on Evidence, §§ 1159, 2180; 14 Ency. of Ev. 219; Bell v. The State, 31 Tenn. (1 Swan's Rep.) 42.
3. The defendant complains of the exclusion of certain evidence which he attempted to introduce on the cross-examination of William Kimball, who was a witness for the state. The following occurred:
. . . .
The defendant pleaded self-defense, and contends that by these questions he sought to establish facts that were a part of the res gestae. The evidence was objected to because it was not proper cross-examination, and was excluded. In his examination in chief, Kimball was not questioned on any of these matters. The objections were, therefore, properly sustained.
Kimball was placed on the stand as a witness for the defendant, and he could have been then questioned concerning everything connected with the shooting.
4. Another complaint is that the court refused to permit a witness to give the substance of the language used by Lockridge when he was going through the restaurant after Long. The following occurred at the trial:
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