State v. Mounkes

• Citation: 138 P. 410,91 Kan. 653
• Decision Date: 07 February 1914
• Docket Number: 19,055
• Parties: THE STATE OF KANSAS, Appellee, v. WALTER MOUNKES, Appellant
• Court: United States State Supreme Court of Kansas

138 P. 410

91 Kan. 653

THE STATE OF KANSAS, Appellee, v. WALTER MOUNKES, Appellant

No. 19,055

Supreme Court of Kansas

February 7, 1914

Decided January, 1914

Appeal from Lyon district court; WILLIAM C. HARRIS, judge.

Judgment reversed and trial ordered.

SYLLABUS

SYLLABUS BY THE COURT.

CRIMINAL LAW--False Testimony--New Trial Should be Granted. In a criminal action where it is shown on a motion for a new trial that false and perjured testimony, which the defendant had no fair opportunity to rebut at the trial, probably influenced the jury to find him guilty, it is the duty of the court to set the conviction aside and grant a new trial.

W. L Huggins, Henry E. Ganse, and Humbert Riddle, all of Emporia, for the appellant.

John S. Dawson, attorney-general, Owen S. Samuel, county attorney, and W. N. Smelser, of Emporia, for the appellee.

OPINION

PORTER, J.:

The defendant appeals from a judgment convicting him of the crime of assaulting one Ernest Van Sickle with a deadly weapon with intent to kill. A former conviction was reversed and a new trial ordered on account of error in the instructions. ( The State v. Mounkes, 88 Kan. 193, 127 P. 637.) The facts out of which the prosecution arose are quite fully stated in the former opinion.

On both trials the defendant testified that his brother Arthur, a boy of sixteen years of age, was assaulted by a number of young men in the schoolhouse yard and was overtaken and thrown down, and that he called to the defendant for help and said, "They are killing me." He testified that he started to go to his brother's aid and took a knife out of his pocket for the purpose of protecting and defending his brother; that he struck Van Sickle because the latter attempted to prevent his going to his brother and had stooped to pick up a rock and was in a threatening attitude and had used a vile epithet; that he struck to defend himself and to enable him to go to his brother's assistance. Van Sickle testified that he had said nothing and done nothing to cause the appellant to strike him.

At both trials the defendant testified that on the schoolhouse ground near the place where the fight occurred there was a flower bed encircled by pieces of rock, and that when Van Sickle stooped down the defendant believed he had picked up a rock from the ground. On the second trial, at the close of the defendant's testimony and late in the afternoon, the prosecuting witness, Van Sickle, and one other witness were called in rebuttal, and both positively denied the existence of any flower bed on the school grounds or that there were any rocks on the ground near where the encounter took place. The existence of the flower bed surrounded by stones was not disputed at the first trial, and the defendant claims that he was wholly surprised by the rebuttal testimony and was unprepared to meet it. At the former trial the prosecuting witness himself had testified that such a flower bed was there; but this fact was not remembered by the attorneys for the defendant, and in the few minutes that elapsed before the close of the case they were unable to produce any witnesses who knew the truth of the matter, except a sister of the defendant, whom the court permitted to testify in surrebuttal. In the argument of the case the attorneys for the state commented upon the testimony showing that there were no rocks at the place of the encounter, and argued to the jury that the defendant had testified falsely for the purpose of establishing his plea of self-defense, and dwelt upon the fact that another wholly disinterested witness had denied the existence of any flower bed near the place of the encounter.

After the trial four persons who had heard the evidence went to the schoolhouse for the purpose of making an examination and found the flower bed surrounded by rocks as testified to by the defendant. Their affidavits were used upon the motion for a new trial, and the evidence of the prosecuting witness at the first trial was produced in which he testified to the existence of the flower bed. In addition, affidavits of three former school teachers who had taught there were introduced to the effect that a flower bed surrounded with rocks was in the yard at the time of the alleged offense; and much additional testimony to the same effect was produced, including photographs showing the flower bed and the stones surrounding it. The...