State v. McKinney

• Decision Date: 06 March 1884
• Citation: 31 Kan. 570,3 P. 356
• Parties: THE STATE OF KANSAS v. CLARK W. MCKINNEY
• Court: Kansas Supreme Court

3 P. 356

31 Kan. 570

THE STATE OF KANSAS v. CLARK W. MCKINNEY

Supreme Court of Kansas

March 6, 1884

Appeal from Butler District Court.

AT the May Term, 1883, Clark W. McKinney was found guilty of murder in the first degree, in the homicide of William H. Reeder and duly sentenced on the verdict. He appeals. The facts are stated in the opinion.

Judgment affirmed.

A. L Redden, T. O. Shinn, and D. McKinney, for appellant.

George Gardner, county attorney, and C. N. Sterry, for The State.

BREWER J. All the Justices concurring.

OPINION

BREWER, J.:

The appellant was convicted in the district court of Butler county of the crime of murder in the first degree, in the homicide of one William H. Reeder, and from the conviction brings his appeal to this court. The case has been elaborately briefed and argued by counsel on both sides. A great many rulings of the district court have been pointed out, in which, as is claimed by appellant, are errors prejudicial to his substantial rights. We have examined the case with care, giving that consideration to every question which the importance of the case demands.

We shall proceed now to notice the various questions, premising that as to some of them, they are fully covered by prior rulings of this court. Of course, as to such matters, it will be generally sufficient to refer to the prior rulings.

I. It appears an indictment was found against the defendant, and that while that indictment was pending the state caused a preliminary examination to be had, and thereafter an information to be filed. On the first day of the ensuing term the county attorney nollied the indictment, with leave of the court. On the arraignment of the defendant he plead in abatement that at the time of the preliminary examination and of filing this information, there was pending against him an indictment for the same offense. This plea was overruled, and properly so. (The State v. Curtis, 29 Kan. 384.) It was there held, upon full examination, that the pendency of one indictment or information was no bar to the filing of another. Counsel, distinguishing that case, say that the statute provides that offenses may be prosecuted either by indictment or information; that the disjunctive word "or" being used, the state is limited from the inception to the close to one form of procedure; that while during the pendency of one indictment it may cause another to be filed, and the same with respect to an information, yet that while a proceeding by indictment is pending it cannot change the procedure by filing an information, and thus prosecute by both indictment and information. This attempted distinction is not well taken. Of course a party cannot be put upon trial upon an indictment and an information for the same offense at the same time; and in this sense the state cannot prosecute by indictment and information. But the indictment and information are simply the pleadings on the part of the state. Each one constitutes a separate action, and it is not bound to dismiss one action before it commences another. Here, before the defendant was called to plead to the information, the indictment had been nollied, and there was pending no action by indictment against him.

II. Defendant claims that the court erred in overruling his challenge to the array. The facts are, that at the time the jurors were drawn and summoned, Butler county was a part of the thirteenth judicial district, and its term of court for 1883 would have commenced on the third Tuesday of February. For that term the jurors were drawn and summoned. By chapter 102, Laws of 1883, which took effect February 6, 1883, the eighteenth judicial district was created, Butler county placed in that district, and the next ensuing term fixed for the first Tuesday in May. There was therefore no February term of the district court in Butler county. Without any new drawing the jurors summoned appeared at the May term. It is contended that there should have been a new drawing and summoning of jurors. We think not. Section three of said chapter is broad enough to cover the drawing and summoning of the jury. It reads as follows:

"All proceedings of every kind and character, and all bonds, recognizances, subpoenas, and all the processes of every kind and character pending in any of the courts of said counties, or either of them, at the date of the passage of this act, shall stand, be returnable and triable at the first term of the court for said counties as specified in this act, the same as if the change herein contemplated had not been made."

While it may be as counsel say, that the drawing and summoning of jurors is not process issued out of the district court, yet the list of persons so drawn, required by chapter 54, Comp. Laws 1879, § 14, P 8, is equivalent to a venire, which by section 15 the sheriff is required to serve and return to the district court, and the jurors are summoned to appear and serve in that court; so that it comes within the broad language, "all proceedings and processes of every kind and character pending in any of the courts."

III. Appellant insists that the court erred in sustaining the challenge of the state to the juror Henderson. The facts are these: After the regular venire had been exhausted, the following agreement was made as to a special venire: "The court, by agreement of counsel for the state and the defendant, named certain persons to be summoned to attend as jurors in said cause, it being agreed that no person should be named from Augusta, El Dorado, Spring, Little Walnut, or Douglass townships." In pursuance of this agreement the court named a list of jurors, among them Henderson, who were summoned by the sheriff. It appeared upon the examination of the juror Henderson that he was a resident of Spring township, the home of the defendant; and while from such examination it appears probable that he was a qualified juror, yet the court excused him on the ground of his residence. In this we see no error. The fact that a court excuses a juror is not generally sufficient ground for a reversal, providing the jury finally obtained is unimpeachable. (Stout v. Hyatt, 13 Kan. 232; Rld. Co. v. Franklin, 23 id. 74; The State v. Miller, 29 id. 43.) And in this case the juror was excused by virtue of an agreement between counsel, an agreement entered into in the interests of justice, and for the purpose of facilitating the selection of a jury. Counsel say that a defendant in a capital case cannot waive any of his legal rights, and that he has such right to the retention on the jury of any juror who shows himself not personally disqualified. We do not think the proposition of counsel is correct, at least as broadly as it is stated; and we see no real substantial waiver of any rights. The court was called upon to name the jurors who should be summoned; and when upon the agreement or suggestion of counsel it determined to select jurors from outside those townships in which the inhabitants were most likely to be familiar with the facts, or influenced by their acquaintance and friendship, it was simply exercising a wise discretion; and if thereafter it appeared that by mistake a juror from one of these townships had been named, there was no impropriety in setting him aside.

IV. It is insisted that the court erred in permitting the county attorney to indorse the names of two witnesses on the information. It has been repeatedly held in this court that such action is within the discretion of the trial court. ( The State v. Dickson, 6 Kan. 209; The State v. Medlicott, 9 id. 257; The State v. Cook, 30 id. 82.)

There is nothing in the rule of the court quoted in the record, which substantially abridges this discretion, or which renders the action of the court in this case subject to just exceptions.

V. We now pass to a series of exceptions taken to the ruling of the court on the rejection and admission of testimony. Among these may be noticed the following: The witness Gallager was permitted, over the objection of defendant, to testify to the place where he was told that the body of Reeder had been found, and from that information located upon a map the position, direction and distance of certain other points. We see nothing in this objectionable. The map had been introduced in evidence long before this witness was called, the place where the body was found identified by other witnesses, and the only object of this witness's testimony was the location of other points with respect to the spot where the body was found.

VI. Again, a series of objections runs to testimony of this nature. Witnesses were permitted to testify as to seeing a pistol in the pocket of defendant several days before the homicide, as to expressions of ill-feeling and threats on the part of the defendant toward the deceased a month or two before; also, to the fact of a quarrel between the parties about ten months before the homicide, and that defendant was beaten in that quarrel; also, to the fact that a pistol was brought to one witness, a gunsmith, about a month before the homicide, which he thought was the one found after the homicide in the house of defendant; and in respect to the probability of the ball found in the body of the deceased having been fired out of such pistol. Now in respect to all this testimony, we remark that it was legitimate for the state to prove in the possession of defendant the means of committing the homicide in the manner in which it was committed, and also the fact of prior difficulty and continued ill feeling as furnishing the motive therefor. It may be conceded that the identification of the pistol was not absolute and perfect; that the quarrel was one of many months' standing, and therefore the presumption of continued ill-feeling and...