State v. Pearce

• Decision Date: 08 June 1912
• Docket Number: 17,839
• Citation: 124 P. 814,87 Kan. 457
• Parties: THE STATE OF KANSAS, Appellee, v. GEORGE L. PEARCE, Appellant
• Court: Kansas Supreme Court

124 P. 814

87 Kan. 457

THE STATE OF KANSAS, Appellee, v. GEORGE L. PEARCE, Appellant

No. 17,839

Supreme Court of Kansas

June 8, 1912

Decided January, 1912.

Appeal from Stanton district court.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. QUALIFICATION OF JURORS--Opinion--Judicial Discretion. Some of the persons called as jurors stated that they held opinions as to the guilt or innocence of the defendant, but upon a further inquiry, in which the judge took a leading part, the jurors answered that the opinions which they held were upon questions not in issue in the case. As the answers first given were contradictory of those subsequently made it devolved on the trial court to settle the contradictions and to determine whether these persons held disqualifying opinions, and, there being evidence to support the findings of the court on the question, its decision must be affirmed.

2. DECLARATION OF DECEASED--Testified to by Wife. The declarations of a person who started from home with a herd of horses as to the place to which he was going and the purpose of his journey are admissible in evidence, and in a prosecution for the murder of the one who made such declarations testimony regarding them may be given by the wife of the deceased.

3. INCOMPETENT EVIDENCE--Must be Prejudicial . The admission of some incompetent testimony, which had little, if any, bearing on the issue being tried, and could not have influenced the verdict or prejudicially affected the interests of the party complaining, will not warrant a reversal of the judgment.

Joseph G. Waters, A. B. Reeves, and John C. Waters, for the appellant.

John S Dawson, attorney-general, and S. M. Brewster, special assistant attorney-general, for the appellee; George Getty, of counsel.

OPINION

JOHNSTON, C. J.:

George L. Pearce shot and killed J. I. Silvey, and in a prosecution which followed he was convicted of murder in the first degree. In this appeal he insists that error was committed in selecting the jury and in the admission of evidence.

Appellant and Silvey lived in the same neighborhood, and Pearce had considerable unfenced leased land upon which Silvey's horses had grazed without the consent of Pearce. There had been some negotiations between them to the effect that Silvey should pay the taxes on the land for the privilege of using it but no agreement was reached. Pearce warned Silvey that he must desist from trespassing on his land, but it is claimed that Silvey did not heed the warning. Although they had a number of conversations about the right to use the land their discussions were not very heated or angry. On the night before the killing appellant told Silvey to keep his horses off of the land and Silvey insisted that he had a right to some of the grass, and appellant replied that he had leased all the land he did not own and was entitled to the grass that grew on all of it. Appellant said Silvey "brought his fist down this way" (indicating) and that appellant "pushed" his "fist up this way" (indicating). On the next morning appellant climbed to the top of his windmill and from there discovered that Silvey's horses were being taken to or upon the land, and he came down, procured his gun, made inquiry about ammunition, and finding that some could be procured at a son's house a mile or more away he rode there, secured some cartridges, loaded his repeating rifle and proceeded toward the place where Silvey was seen in charge of his horses. No one, other than appellant, witnessed the shooting of Silvey. He stated that Silvey was riding a horse and moving slowly with the herd, and as appellant rode up Silvey rode away from him among the horses, and that when appellant spoke to him Silvey turned around and looked at him "in a sullen way" but did not speak, and that then appellant rode closer to Silvey and dismounted. He testified that Silvey then rode quickly towards him and said in an angry tone, "Hold up there!" that Silvey's left hand was down at his side as if drawing a weapon, and believing that he was in danger appellant lifted his gun and shot Silvey. Appellant did not report the killing to those whom he met, but Silvey was found soon afterwards lying on the ground face downward. He had been holding the bridle rein in one hand while he was on the horse, but he had fallen off, and it was found that he was without a gun and that a buggy whip was clutched in his hand. After appellant fired the shot he said he discovered that Silvey was unarmed and that the shooting was unnecessary. Silvey was struck by a 30-30, soft-nosed bullet, and, according to the expert's testimony, the course of the bullet through his body was such that death must have been instantaneous.

The first complaint is that a number of persons who were called as jurors, and who by their answers had indicated that they had formed and expressed an opinion in the case, were held to be qualified jurors. Attention is called to the fact that with each summons served there was a notice signed by the judge telling the one served that he had been chosen as a juror in this case and not to talk with any one or allow any one to talk with him about the facts in the case nor to form or to express an opinion concerning the facts in the case. The notice was substantially in the form of the admonition given a jury after being impaneled. On the motion to quash the panel because of this unique notice the court filed a written statement that the admonition had been sent out:

"Because of developments on the former trial showing clearly an attempt on the part of counsel for defense to disqualify as many jurors as possible and to challenge all jurors who had heard of, talked about or who had expressed an opinion on any feature of the case; and because the court was reliably informed that the same tactics would be pursued in the second trial in impaneling the jury; and

"Because of the fear on the part of the court that too much general discussion might legally disqualify many of the jurors then competent, and prevent a trial of the case in Stanton county, the venue chosen by the defendant, and who objected to the removal of the case to any other county in the district where a fair and impartial jury could easily have been secured."

Following the filing of this statement counsel for defendant stated that:

"The defendant and his attorneys desire to say that so far as the conduct of the judge in issuing the 'Admonition' is concerned, that it was done in the best of faith, for the purposes and under the circumstances stated by him above, and that the only reason for filing the motion was simply the legal proposition, as we thought it to be, that nothing can be done in a criminal case without the presence of defendant."

Although the notice sent out was unusual it betrayed no prejudice and its only tendency was towards preventing the possible disqualification of those summoned as jurors. The circumstances were peculiar as there had been one trial of the case and there were only a small number of persons in the county who could be required to act as jurors. The notice indicated a desire on the part of the court to obtain a qualified jury and, at any rate, it is impossible to see how his act could have operated to the prejudice of the appellant.

Complaint is made of the...