State v. Myrick
| Decision Date | 07 January 1888 |
| Citation | 38 Kan. 238,16 P. 330 |
| Parties | THE STATE OF KANSAS v. HIRAM MYRICK |
| Court | Kansas Supreme Court |
Appeal from Osage District Court.
PROSECUTION for an assault with a deadly weapon, with intent to kill. From a conviction and sentence at the April Term, 1887, the defendant Myrick appeals. The facts are sufficiently stated in the opinion.
Judgment reversed.
William Thomson, and W. A. Madaris, for appellant.
H. B Hughbanks, county attorney, and P. E. Gregory, for The State.
OPINION
Hiram Myrick was charged jointly with Frank Blainey, with assaulting and beating one C. A. Smith with a deadly weapon, and with the intent to kill and murder him. He was separately tried, and found guilty of wounding Smith in the manner charged, and under circumstances which would have constituted manslaughter in the third degree if death had ensued from the wound. A sentence of two years' imprisonment was pronounced, from which judgment he appeals here, and seeks a reversal for insufficiency of the information, and for rulings made by the court during the progress of the trial. The information is unquestionably sufficient; and there is nothing substantial in the other exceptions, save one. After the cause had been submitted to the jury, and they had retired to the jury room, they requested the court to give them further instructions in regard to what constitutes manslaughter in the second and third degrees. This request was submitted to counsel for the defendant, who stated that they had no objections to the granting of the request, providing the court should also include in the instructions a phase of the law relating to assault and battery. In response to the request of the jury, the judge prepared further instructions, which were handed to defendant's counsel, who made no objection to them, and the jury were then returned into court and given the additional charge, the defendant's counsel then stating that they had no objections to the further charge being then given. The defendant was absent and confined in the county jail when the additional instructions were requested and given.
The absence of the defendant under imprisonment in the county jail during a part of the trial was one of the grounds upon which a new trial was asked, and the overruling of a motion so grounded is an error which must be held fatal to the judgment. Section 207 of the criminal code provides that "No person indicted or informed against for a felony can be tried unless he be personally present during the trial." By this provision the legislature has said that the personal presence of the defendant, upon a charge of felony, is essential to the legality of the trial. The charge of the court is one of the most important proceedings in the trial. His presence is no...
To continue reading
Request your trial
-
State v. Neal
...N.Y. 1; State v. Moran, 46 Kan. 318, 26 P. 754; State v. Smith, 44 Kan. 75, 24 P. 84, 81 L. R. A. 774, 21 Am. St. Rep. 266; State v. Myrick, 38 Kan. 238, 16 P. 330. (5) The court erred in allowing Mrs. T. C. Taylor to of other accounts and circumstances between the witness, and defendant, a......
-
State v. Hunt
...of the accused while the judge is instructing the jury is equally fatal. Roberts v. State, 111 Ind. 340, 12 N. E. 500; State v. Myrick, 38 Kan. 238, 16 Pac. 330; Territory v. Lopez, 3 N. M. 104, 2 Pac. 364; Kinnemer v. State, 66 Ark. 206, 49 S. W. 815; Stroope v. State, 72 Ark. 379, 80 S. W......
-
State v. Grisafulli
...336 Ill. 404, 168 N.E. 321; Roberts v. State, 111 Ind. 340, 12 N.E. 500; State v. Wilcoxen, 200 Iowa 1250, 206 N.W. 260; State v. Myrick, 38 Kan. 238, 16 P. 330; Riddle v. Commonwealth, 216 Ky. 220, 287 S.W. Duffy v. State, 151 Md. 456, 135 A. 189; State v. Hunt, 26 N.M. 160, 189 P. 1111; S......
-
Miles v. State
... ... State, 1881, 11 ... Tex.App. 46, 47; State v. Grisafulli, 1939, 135 Ohio ... St. 87, 94, 19 N.E.2d 645; State v. James, 1921, 116 ... S.C. 243, 107 S.E. 907; Schafer v. State, 1931, 118 ... Tex.Cr.R. 500, 40 S.W.2d 147; Stroope v. State, ... 1904, 72 Ark. 379, 80 S.W. 749; State v. Myrick, ... 1888, 38 Kan. 238, 16 P. 330; Smith v. State, 1911, ... 61 Tex.Cr.R. 328, 135 S.W. 154 ... In ... Arkansas waiver by an attorney has been permitted. The ... leading case so holding is Davidson v. State, supra. Because ... of fear for the defendant's safety, at the ... ...