State v. Peterson

• Decision Date: 07 January 1888
• Citation: 38 Kan. 204,16 P. 263
• Parties: THE STATE OF KANSAS v. ELOPH PETERSON
• Court: Kansas Supreme Court

16 P. 263

38 Kan. 204

THE STATE OF KANSAS v. ELOPH PETERSON

Supreme Court of Kansas

January 7, 1888

Appeal from Saline District Court.

PROSECUTION for grand larceny. From a conviction and sentence at the November Term, 1886, the defendant Peterson appeals. The material facts appear in the opinion.

Judgment affirmed.

J. G Mohler, for appellant.

S. B Bradford, attorney general, and Joseph Moore, county attorney, for The State; W. P. Quinby, of counsel.

VALENTINE J. All the Justices concurring.

OPINION

VALENTINE, J.:

This was a criminal prosecution in the district court of Saline county, in which the defendant Eloph Peterson was charged with the crime of grand larceny in the stealing of 34 head of cattle, the property of John H. Prescott. The offense was committed, if at all, about June 8, 1886. A trial was had before the court and a jury in December, 1886, and the defendant was found guilty and sentenced to imprisonment in the penitentiary for the term of five years. He now appeals to this court. He alleges for error, as follows:

"1st. The overruling of his motion for a new trial; 2d, the overruling of his motion in arrest of judgment."

The grounds relied upon for a new trial, and which are now insisted upon in this court, are as follows:

"1. Misconduct of the jury.

"2. Preadjudication on the part of the juror W. C. Fore.

"3. Error in the admission of evidence.

"4. Refusal of instructions asked by the defendant.

"5. Misconduct of counsel for the prosecution, comprising the 11th and 12th grounds alleged in the motion.

"6. Verdict contrary to the law, as given by the court.

"7. Verdict contrary to the evidence, under the instructions of the court.

"8. Verdict contrary to the law.

"9. Verdict not sustained by the evidence.

"10. For insufficiency of instructions of the court, comprising the 14th ground in the motion."

The first question properly arising in this case is, whether the juror W. C. Fore had prior to the trial formed or expressed any opinion in the case with reference to the guilt of the defendant. The affidavits of Charles J. McVittie, Ann McVittie and Hannah McVittie were introduced in evidence by the defendant on the hearing of the motion for a new trial, to prove that the juror Fore had so formed and expressed such an opinion. On the other side, the affidavits of W. C. Fore, W. D. Mulkey, Charles O. Wheaton, B. L. Swain, O. B. Tubbs, and Bursley Sargent, were introduced. In the light of all the evidence, and particularly that of the six last-named persons, the most charitable thing that can be said with reference to the three McVitties and their affidavits is, that they were mistaken and their affidavits the result of misapprehension. The affidavits introduced by the prosecution were full and circumstantial, and Fore swore positively and unequivocally, and his affidavit is corroborated by the other affidavits, that the matters and things set forth in the affidavits of the McVitties, and tending to show that Fore had either formed or expressed any opinion in the case prior to the trial, are not true. The affidavits of the McVitties state that Fore prior to the trial expressed the opinion that the defendant was guilty, but evidently the court below did not believe them, and we do not.

It has recently been said by the supreme court of Illinois as follows:

"It is a dangerous practice to allow verdicts to be set aside upon ex parte affidavits as to what jurors are claimed to have said before they were summoned to act as jurymen. The parties making such affidavits submit to no cross-examination, and the correctness of their statement is subject to no test whatever." (The Anarchists' Case, 12 N.E. 865, 992, 993; Hughes v. The People, 116 Ill. 330, 337, 338; The State v. Brooks, 5 S.W. 257, 271, 272.)

Upon this point we think the decision of the court below is correct.

The next point to be considered is the alleged misconduct of the jury. In order to prove such misconduct, the defendant read in evidence on the hearing of the motion for a new trial, the affidavits of L. M. Tuttle, C. J. Frederickson, L. W. Cooper, and J. Wardell. The only supposed misconduct of the jury is shown by the following affidavits, to wit:

L. M. Tuttle, in his affidavit, states as follows:

"Some of the jury requested the affiant to call the judge and bring him before them, as they wanted to know whether he meant what he said in his instructions. The bailiff informed the jurors that he would not do anything of the kind. Some of the jurors then said that the judge could not have meant what he seemed to say in his last instruction, and if he did, it was not law, as an accessory after the fact was just as guilty as a principal; that the law was, that a receiver of stolen properly is just as guilty as the thief; and that if the defendant knew that a crime had been committed, and afterward aided or assisted the perpetrator in any way, he was just as guilty as the perpetrator."

L. W. Cooper and J. Wardell, in their affidavits, state as follows:

"Affiants further say, that among other jurors they heard Mr. Rose, they think, who was on the jury, state as above, and also in substance that he had cattle and expected to have cattle next year, and that no one's cattle would be saved if the defendant was acquitted on this evidence."

The instruction referred to reads as follows:

"The jury under the charge against the defendant in this case cannot find him guilty of being an accessory after the fact, and if the jury in this case find from the evidence that the defendant did not counsel, aid or abet in the actual commission of the offense, but was only cognizant of the offense and participated therein after its commission, they will acquit the defendant."

The defendant was not prosecuted upon the theory that he was a mere accessory after the fact, but was prosecuted upon the theory that he was a principal in the first degree, though possibly he may have been guilty only as an accessory before the fact; and in this state "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." (Crim. Code, § 115.) The above affidavits are very indefinite. Only one of them mentions any particular juror, and that is "Mr. Rose, they think." Of course Mr. Rose, as "they think," was, or if not he then the unknown jurors mentioned in the affidavits were, guilty of misconduct in questioning the correctness of the instruction given them by the court; but we cannot say, nor is it shown, that the jury when they took the final vote upon the guilt or innocence of the defendant, violated their duty and their oaths by finding the defendant guilty upon any other theory than the one upon which he was prosecuted, and the one which the evidence and the law, as given to them by the court, justified. No pretense is made that any unwarranted attempt was made by anyone to influence the jury in the remotest degree, except such as was made in open court, and such as the defendant could object to, and could take exceptions to, and all presumptions are in favor of the correctness of the verdict of the jury. It must be presumed that after this misconduct on the part of Mr. Rose or some unknown juror or jurors, that all the jury carefully considered the case and rendered their verdict according to the law as given to them by the court, and according to the evidence. It must also be remembered that the court below, who saw the jurors, the witnesses, and the defendant, approved the verdict of the jury; and we do not think that the verdict should now be disturbed, or that the judgment of the court below should be reversed, because of said misconduct of the jury.

The third point made by the defendant is as follows:

"Error in the admission of evidence. The state, over the objection of the defendant, was permitted to prove the acts...