State v. Mosley

Decision Date07 February 1884
PartiesTHE STATE OF KANSAS v. E. D. MOSLEY
CourtKansas Supreme Court

Appeal from Lyon District Court.

INFORMATION for murder in the first degree, filed June 5, 1882, jointly charging that the defendants Mary Isabel Martin and E. D Mosley, on the 23d day of May, 1882, in the county of Lyon and state of Kansas, did then and there kill and murder one Loraine M. Keiger by administering to her strychnine. The defendant Mosley was tried in February, 1883, and found guilty of murder in the first degree as charged in the information, by counseling, aiding and abetting the defendant Mary Isabel Martin in the commission of said murder. New trial denied, and judgment on the verdict against defendant. He appeals.

Judgment affirmed.

Peyton Sanders & Peyton, for appellant.

J. W Feighan, county attorney, and J. Jay Buck, for The State.

HORTON C. J. All the Justices concurring.

OPINION

HORTON, C. J.:

On June 5, 1882, Mary Isabel Martin and her son, E. D. Mosley, were jointly charged with the murder of Loraine M. Keiger, who died May 23, 1882, from the effect of poison. The trial of Mary Isabel Martin, the mother, was commenced on June 12, 1882. A verdict of guilty of murder in the first degree was rendered against her, and on December 29, 1882, she was sentenced. The defendant Mosley was tried in February following, and convicted of murder in the first degree, for counseling, aiding and abetting his mother in the commission of the murder of Mrs. Keiger.

Upon the trial, the record of the conviction of Mary Isabel Martin was introduced in evidence, and the court also permitted witnesses to testify to statements made by her half an hour after Mrs. Keiger died, tending to show she was guilty of poisoning her. The court instructed the jury that the record of the conviction of Mrs. Martin was prima facie evidence of her guilt. All of these rulings are complained of. The objections, however, are unavailing. Sec. 287, ch. 31, Comp. Laws of 1879, reads:

"Every person who shall be a principal in the second degree in the commission of any felony, or who shall be an accessory to any murder or other felony, before the fact, shall upon conviction be adjudged guilty of the offense in the same degree, and punished in the same manner, as herein prescribed with respect to the principal in the first degree."

And § 115, ch. 82, Comp. Laws of 1879, provides:

"Any person who counsels, aids or abets in the commission of any offense, may be charged, tried and convicted in the same manner as if he were a principal."

While these sections of the statute authorized the charging of defendant--an accessory before the fact--as a principal, to convict him it was necessary to establish that the mother, Mary Isabel Martin, had poisoned the deceased. It was not, therefore, error to allow facts to be shown on the trial tending to prove the guilt of the principal, Mary Isabel Martin. (The State v. Cassady, 12 Kan. 550.) The record showing her conviction was proof prima facie of that fact, but this was not conclusive, and other evidence of the commission of the crime by her was admissible. (Levy v. The People, 80 N.Y. 327; Arnold v. The State, 9 Tex. Ct. App. 435.)

Upon the trial, after the defendant had rested without testifying, the state introduced a witness--one Marsh--and offered to prove certain facts, to which the defendant objected as not being proper rebuttal. Thereupon the county attorney said to the court: "Your honor, we had a right to presume that the defendant would testify as a witness in his own behalf, in which case this evidence would have been proper rebuttal, and he having failed to do so, we claim the right to introduce it now." It is claimed that in using this language to the court in the hearing and presence of the jury, the county attorney was guilty of such misconduct as warrants the granting of a new trial. This claim is made under the provision of § 1, ch. 118, Laws of 1871, which reads:

"And provided further, that the neglect or refusal of the person on trial to testify, or of...

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28 cases
  • State v. DiGuilio
    • United States
    • United States State Supreme Court of Florida
    • 17 Julio 1986
    ...... Miranda states that an individual can invoke his right to remain silent "at any time prior to or during questioning." Miranda v. Arizona, 384 U.S. 436, 473-74, 86 S.Ct. 1602, 1627-28, 16 L.Ed.2d 694 (1966); Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975). Thus, comment on a defendant's invocation of his right to remain silent after he has answered some questions is constitutional error. See Peterson v. State, 405 So.2d 997 (Fla. 3d DCA 1981); Thompson v. State, 386 So.2d 264 (Fla. 3d DCA 1980), ......
  • Dent v. State
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • 5 Junio 1901
    ...§ 12; 1 Bish. Cr. Law, §§ 667, 668; 1 Am. & Eng. Enc. Law, 270; Lynes v. State, 36 Miss. 617; Anderson v. State, 63 Ga. 675; State v. Mosley, 31 Kan. 355, 2 Pac. 782; State v. Chittem, 2 Dev. Law, 49; Com. v. Knapp, 10 Pick. 477, 20 Am. Dec. 534; Baxter v. People, 7 Ill. 578; People v. Buck......
  • State v. Roberts
    • United States
    • United States State Supreme Court of Kansas
    • 10 Abril 1915
    ...participation therein. (The State v. Cassady, 12 Kan. 550.) In this connection, it is proper to remark that, in the case of The State v. Mosley, 31 Kan. 355, 2 P. 782, it rightly decided that 'Upon the trial of an accessory before the fact, the record of the conviction of the principal is p......
  • Simmons v. State
    • United States
    • United States State Supreme Court of Florida
    • 1 Agosto 1939
    ...... The. statement of the state attorney above quoted was sufficient. to direct the attention of the jury to the defendant's. neglect to avail himself of his right. See Watt v. People, 126 Ill. 9, 18 N.E. 340, 1 L.R.A. 403; State. v. Kimes, 152 Iowa 240, 132 N.W. 180; State v. Mosley, 31 Kan. 355, 2 P. 782. . . A. verdict will not be set aside by an appellate court because. of the improper remarks of counsel or because of any omission. of the judge to perform his duty in the matter unless. objection be made at the time of their utterance. This rule. is subject ......
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