State v. Rambo

• Decision Date: 07 July 1904
• Docket Number: 13,890
• Citation: 69 Kan. 777,77 P. 563
• Parties: THE STATE OF KANSAS v. WILLIAM RAMBO
• Court: Kansas Supreme Court

77 P. 563

69 Kan. 777

THE STATE OF KANSAS v. WILLIAM RAMBO

No. 13,890

Supreme Court of Kansas

July 7, 1904

Decided July, 1904.

Appeal from Wyandotte court of common pleas; WILLIAM G. HOLT, judge.

Judgment reversed and new trial granted.

SYLLABUS

SYLLABUS BY THE COURT.

1. CRIMINAL PROCEDURE -- Misconduct of Jury -- Verdict Vitiated. A defendant on trial for murder did not testify in his own behalf. After conviction one of the jurors was sworn in support of a motion for a new trial and stated that while deliberating on the verdict he mentioned in the hearing of the other jurors that defendant did not testify and said in the jury-room: "If anybody put anything like that [meaning a charge of murder] over my shoulders I would talk for myself," and explained that he meant "if anybody blamed anything on me that I was not guilty of, I would think my own talk [meaning testimony] would do me more good than anybody else's." Held, that the statements of the juror show a consideration by him of the circumstance that the defendant did not testify as prejudicial to the latter, which vitiates the verdict.

2. CRIMINAL PROCEDURE -- Testimony of Juror on Motion for New Trial Weighed. After confessing the misconduct shown in the above paragraph, the juror testified that the failure of defendant to take the witness-stand in his own behalf was not considered by him in arriving at a verdict. Held, that such general denial did not overcome the obvious fact, apparent from the juror's testimony, that the refusal of the person on trial to testify was considered by him to the prejudice of the defendant.

3. CRIMINAL PROCEDURE -- Failure of Defendant to Testify -- Evidence of its Discussion by Jury Admissible. Section 215 of the code of criminal procedure (Gen. Stat. 1901, § 5657) provides that the neglect or refusal of a person on trial to testify shall not raise a presumption of guilt, nor shall the same be considered by the court or jury. Held, that the testimony of a juror on the hearing of a motion for a new trial, reciting comments made by him in the jury-room on the failure of the person on trial to testify, is, in effect, the same as a narrative by him of extraneous facts not in evidence, and not proper to be considered, and is admissible to impeach the verdict. (Gottleib Bros. v. Jasper & Co., 27 Kan. 770.)

James S. Gibson, county attorney, and B. S. Smith, deputy county attorney, for The State.

Angevine & Cubbison, and I. F. Madlam, for appellant.

SMITH J. All the Justices concurring.

OPINION

SMITH, J.:

The appellant, William Rambo, was found guilty of murder in the second degree. On the hearing of the motion for a new trial the affidavit of L. G. Eike, one of the jurors, was filed by defendant in support of his application. The material part reads:

"When the jury retired to consult and deliberate upon their verdict, the fact that William Rambo, commonly known as 'Toots' Rambo, defendant, did not go upon the stand to testify in his own behalf was freely commented upon and discussed in the jury-room, and the jurors, while so deliberating, expressed their opinion that the fact that said Rambo did not testify in his own behalf was an indication and some proof that said Rambo was guilty. Several of us talked about this matter. I mentioned it first, and Mr. Hill mentioned (it) and so did Mr. Price. I think every juror said something about it."

The juror was also sworn and testified orally in support of the motion as follows:

"Ques. Now, the fact that he did not go upon the stand and testify -- that fact was mentioned, was it? Ans. Yes, sir.

"Q. How often do you think that fact was mentioned -- that he did not go upon the stand? A. I think that was only mentioned once.

"Q. Do you remember the words used at that time? A. No, I do not remember.

"Q. Do you remember who mentioned the fact that he did not go on the stand and testify? A. I think I did.

"Q. What did you say? A. I said if anybody put anything like that over my shoulders I would talk for myself.

"Q. You meant -- what did you mean by that? A. I meant by that if anybody blamed anything on me that I was not guilty of, I would think my own talk would do me more good than anybody else's.

"Q. You meant your own testimony as a witness? A. Yes, sir.

"Q. Do you remember anything else that you said at that time? A. That is all I said."

. . . .

"Q. When you went out Thursday night there were some members of the jury voted 'not guilty,' were there not? A. Yes, sir.

"Q. And there were members of the jury that voted 'not guilty' all day Friday? A. Yes, sir.

"Q. And there were members of the jury that voted 'not guilty' on Saturday morning? A. Yes, sir.

. . . .

"Q. You were voting for conviction at the time, you made that statement to the jury? A. Yes, sir.

"Q. And up to that time some had been voting for acquittal? A. Yes, sir."

This juror and eleven others who sat in the case testified that the defendant's failure to take the stand as a witness in his own behalf was not considered by them, and did not influence them in arriving at a verdict. Section 215 of the code of criminal procedure (Gen. Stat. 1901, § 5657) provides:

"No person shall be rendered incompetent to testify in criminal causes by reason of his being the person . . . on trial or examination; . . . provided, that the neglect or refusal of the person on trial to testify . . . shall not raise any presumption of guilt, nor shall that circumstance be referred to by any attorney prosecuting in the case, nor shall the same be considered by the court or jury before whom the trial takes place."

This section of the statute is peremptory in its. declaration that the refusal of a defendant on trial charged with crime to testify shall not be considered by the jury. We may give credence to the statements of the jurors, other than Eike, who testified that they did not give consideration to the failure of Rambo to be a witness in his own behalf. The assertions of Eike, however, to that effect must be taken in connection with his confessed misconduct in the jury-room, and his words spoken there must serve as a true index to the operations of his mind. A stultifying denial that he did not consider the refusal of appellant to testify will not overcome the force of the application which he made of Rambo's failure to take the witness-stand to a supposed case of his own when he said he meant "if anybody blamed anything on me that I was not guilty of, I would think my own talk [meaning testimony] would do me more good than anybody else's." This and the accompanying statements of the juror, set out above, must convince the meanest understanding that he did consider the refusal of defendant to testify as a circumstance weighing against him while the question of his guilt or innocence was under deliberation in the jury-room. From the language employed by the juror prejudice to the defendant is evident.

Obvious language, expressive of opinion, indicating thought on a matter respecting which the words are used, is the best evidence that the person speaking has, to a greater or less degree, considered the subject to which the language relates. "Out of the abundance of the heart the mouth speaketh." A mere incidental mention, however, of the fact by a juror that a person on trial did not testify in his own behalf -- a remark noting the circumstance, unaccompanied by an opinion that an explanation would be of service to the accused -- might fall short of showing a consideration of the matter by the speaker, and not violate the statutory injunction. (The State v. Mosley, 31 Kan. 355, 2 P. 782; The State...