State v. Luft

• Decision Date: 08 March 1919
• Docket Number: 21,341. 21,768
• Citation: 104 Kan. 353,179 P. 553
• Parties: THE STATE OF KANSAS, Appellee, v. GEORGE LUFT, Appellant. THE STATE OF KANSAS, Appellee, v. HENRY LUFT, Appellant
• Court: Kansas Supreme Court

179 P. 553

104 Kan. 353

THE STATE OF KANSAS, Appellee, v. GEORGE LUFT, Appellant. THE STATE OF KANSAS, Appellee, v. HENRY LUFT, Appellant

No. 21,341. No. 21,768

Supreme Court of Kansas

March 8, 1919

Decided January, 1919.

No 21,341. Appeal from Rush district court; ALBERT S. FOULKS judge.

No 21,768. Appeal from Edwards district court; ALBERT S. FOULKS judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. ASSAULT WITH INTENT TO KILL--Cross-examination of Defendant--Impeaching Evidence Properly Received. The defendant, on trial for assault with intent to kill, claimed he was endeavoring to apprehend the person assaulted for the commission of a crime, and sought to justify the force used. He testified on direct examination that the person assaulted fought him. On cross-examination he said the person assaulted fought him with a knife and cut him. He was then impeached by evidence that the wound was not made with a knife at all, and was suffered subsequently to the encounter and at a different place. Held, the impeaching evidence was properly received.

2. SAME--Verdict of Guilty--New Trial Granted--Order Granting New Trial Subsequently Set Aside--New Trial Denied--No error. After verdict of guilty a motion for a new trial was sustained, and the cause was continued to the next term. Subsequently, but at the same term, a motion to reconsider the ruling was entertained, and hearing of the motion to reconsider was postponed to a stated day of the next term. At the next term the motion to reconsider was allowed, and the motion for a new trial was reconsidered and overruled. Held, the court possessed power to pursue the course taken.

3. SAME--New Trial--Authority of Court Over the Work of the Term. Section 274 of the code of criminal procedure, providing that the granting of a new trial places the parties in the same situation as if no trial had occurred, has no reference to the power of the court during the term over the work of the term, and contemplates those orders granting new trials which ultimately become final orders on the subject.

4. SAME. Authority to revise proceedings during the term at which they occurred, includes authority to require the presence of the defendant whenever necessary.

5. SAME--Misconduct of Juror--New Trial Properly Denied. The proceedings examined, and held that a new trial, granted at first on the ground of misconduct of a juror, was properly denied.

6. SAME--New Trial--Newly Discovered Impeaching Evidence. The rule applied that a new trial will seldom be granted for the production of newly discovered impeaching evidence, and more rarely when the evidence relates to a wholly immaterial matter.

7. SAME--No Error in Record. Various assignments of error considered, and held to be without substantial merit.

J. E. Andrews, of La Crosse, Carr W. Taylor, of Hutchinson, and Sam Jones, of Lyons, for the appellant.

S. M. Brewster, attorney-general, Frank U. Russell, W. E. Broadie, county attorneys, and J. W. McCormick, special counsel, for the appellee.

J. E. Andrews, S. I. Hale, both of La Crosse, Carr W. Taylor, of Hutchinson, and Sam Jones, of Lyons, for the appellant.

S. M. Brewster, attorney-general, S. N. Hawkes, assistant attorney-general, Frank U. Russell, and W. E. Broadie, county attorneys, for the appellee.

OPINION

BURCH, J.:

An information was filed in Rush county charging George Luft and Henry Luft with assaulting James Neufeld with intent to kill. Separate trials were demanded, and George Luft was tried, and convicted of the crime charged. A change of venue was granted to Henry Luft, and he was tried in Edwards county, and convicted of assault with intent to commit manslaughter. Because both convictions grew out of the same transaction, the two appeals were argued and submitted together.

Neufeld was hired at Great Bend, and was taken by automobile from that place to George Luft's farm near La Crosse, to work as a threshing hand. The threshing to be done was delayed from Friday until Monday. Meantime Neufeld was boarded at George Luft's. On Sunday afternoon trouble occurred between Neufeld and the Lufts. Neufeld claimed the trouble originated over a comparatively trivial matter, and he announced his intention of leaving, which enraged the defendants. There was, too, some question whether or not Neufeld's physical condition was such that he would be able to do much work, after the Lufts had been to the expense and trouble of bringing him from Great Bend and boarding him. The defendants claim Neufeld was discovered in the act of committing a bestial crime, and they undertook to apprehend him and deliver him to the authorities for prosecution. Whatever the occasion, Neufeld fled. The defendants pursued him for several miles, over hills, through fields, across ravines, along roads, and through fences, and finally overtook him. When overtaken he was in an exhausted condition, and the defendants proceeded, not to reduce him to custody to be prosecuted, but to beat him with savage brutality with a club, to kick and stamp him, and to drive a horse and buggy over him while he was prostrate on the ground. An automobile with several occupants arrived, and he was taken to La Crosse to a doctor. He was in a fainting condition when he arrived at the doctor's office, and had to be restored before an examination could be made and the extent of his injuries ascertained.

Henry Luft's appeal will be considered first.

George Luft, at his own trial, related what occurred at the time of the felonious assault. He said that Neufeld fought him, and cut him in the abdomen with a knife. He was effectively impeached by evidence that the wound he claimed was made with a knife was produced by other means, at La Crosse, subsequently to the encounter. George was a witness at Henry's trial. He said again that Neufeld fought him, but so framed his testimony that no reference was made to Neufeld's use of a knife. On cross-examination the occurrence was probed, and in response to the question, "What did he fight you with?" he answered, "with his fists, with one fist and with a knife." In response to other questions he said Neufeld cut him, and described the wound. The state then impeached him, as it had done before. The contention is that the state was bound by the answers which it elicited on cross-examination, and that the impeaching evidence was improperly received. The cases of The State v. Alexander, 89 Kan. 422, 131 P. 139; The State v. Sexton, 91 Kan. 171, 136 P. 901; and The State v. McLemore, 99 Kan. 777, 164 P. 161, are cited in support of the contention.

The cases cited apply the rule that a foundation for impeachment cannot be laid by questions asked on cross-examination relating to matters collateral to the issue. In this instance the details elicited by cross-examination were not collateral at all. They were of the substance of the issue. The two Lufts were engaged in the execution of a common design--according to their story, the apprehension of Neufeld. They admitted the use of force, but claimed they were justified. By way of justification, the witness said that Neufeld fought him. By the term "fought" the witness summarized Neufeld's acts. The term was vague, and the cross-examination merely developed the witness' explication. Cutting with a knife was one of the acts which the witness included, and the situation was precisely the same as though he had said on direct examination that Neufeld cut him with a knife, in the manner described.

Two veterinary surgeons gave identical opinions respecting a subject concerning which their professional training clearly qualified them to speak. They had also made experiments relating to the matter. A third witness, who possessed other qualifications, had made experiments respecting the same subject, and was allowed to give his opinion, which coincided with that of the veterinarians. It is said he was not qualified. Professional or technical knowledge was not necessarily required to qualify the witness to speak, and the court is inclined to think he was qualified. If he were not, the court will not assume that the jury took his opinion rather than that of the veterinarians; and in any event, the verdict of the jury was not rested on the testimony of this witness. It is urged with much vigor that it was error to admit the experiments. The record shows the experiments were not admitted.

Complaint is made that in cross-examination of witnesses produced by the defendant to show his good character, questions included assumptions of derogatory facts not in evidence. It was not possible the facts should be in evidence. There is nothing to show that the questions were not propounded in good faith, the answers were all favorable to the defendant, and the court instructed the jury to consider nothing but the answers. Consequently the complaint is groundless.

Misconduct of the jury is charged. It is said that one of the jurors during the deliberations of the jury, made a statement of fact, based on his personal knowledge and outside the evidence, concerning a material matter. The statement related, not to the vital subject of the guilt or innocence of the defendants, depending on what occurred in the field where Neufeld was overtaken, but to the guilt or innocence of Neufeld, depending on what occurred at the Luft barn, some miles away. No matter what the motive which actuated the defendants in instituting their long chase of Neufeld, the ferocity of their violence when they overtook him was the product of criminal intent then and there manifestly entertained, and it is not very material just how the trouble at the barn originated. The knowledge which prompted the juror's statement was not peculiar to him, but was knowledge common to farmers,...