State v. Reed

• Decision Date: 01 July 1894
• Citation: 53 Kan. 767,37 P. 174
• Parties: THE STATE OF KANSAS v. ISAAC G. REED
• Court: Kansas Supreme Court

37 P. 174

53 Kan. 767

THE STATE OF KANSAS v. ISAAC G. REED

Supreme Court of Kansas

July 1, 1894

Appeal from Cowley District Court.

ISAAC G. REED was convicted of murder in the second degree. He appeals. The material facts are stated in the opinion herein filed July 6, 1894.

Judgment reversed and cause remanded.

Isaac G. Reed, and Chas. J. Peckham, for appellant; Elliott &amp Woods, of counsel.

John T Little, attorney general, and C. J. Garver, county attorney, for The State; W. H. Schwinn, of counsel.

JOHNSTON J. All the Justices concurring.

OPINION

JOHNSTON, J.:

Isaac G. Reed was charged, in an information filed in the district court of Sumner county, with shooting and killing Isaac Hopper, in Sumner county, in such a manner and with such an intent as to constitute murder in the first degree. The information was filed on August 31, 1892, and on October 10, 1892, upon application of the defendant, a change of venue was granted, and the cause transferred to the district court of Cowley county for trial. The trial was begun in the latter court on January 10, 1893, and after the impaneling of the jury, the production of the evidence for the state and for the defendant, the charging of the jury, after the opening argument in behalf of the state and the argument in favor of the defendant, and before the closing argument for the state had been completed, on January 20, one of the jurors became sick, and was unable to attend at the trial. The cause was continued from time to time for five days, and on January 26, after an examination, and without the consent of the defendant, the court determined that it was impossible for that jury to conclude the trial, and thereupon it discharged the jury. At the next term of the court, the plea of former jeopardy was interposed, and attached to it was the evidence taken by the court when the first jury was discharged; but the court sustained a demurrer, and ruled that the discharge of the jury, having been made necessary by the sickness of a juror, did not operate as a bar to a further trial. The trial then proceeded, and the defendant was convicted of murder in the second degree, from which conviction he appeals to this court, alleging numerous grounds of error. We will only notice those which seem to be material, or require attention at this time.

The first contention is that the discharge of the jury first impaneled is equivalent to a verdict of acquittal. It is true that the jeopardy of the defendant began when the jury were impaneled and sworn and the reception of evidence was commenced, and it is also true that the discharge of the jury without the consent of the defendant, and without sufficient reason, will ordinarily bar a further trial. The statute prescribes the grounds which will warrant the court in discharging a jury before the completion of a trial. It reads as follows:

"The jury may be discharged by the court on account of the sickness of a juror, or other accident or calamity requiring their discharge, or by consent of both parties, or after they have been kept together until it satisfactorily appears that there is no probability of their agreeing." (Civil Code, § 281; see, also, Crim. Code, § 208.)

In this case the sickness of a juror was the cause for discharge, and whether that sickness was of such a character as to make a discharge absolutely necessary, was the subject of inquiry and decision by the court. A court cannot arbitrarily determine such a question, but the incapacity of the juror and the necessity for discharge are to be heard and determined by judicial methods. (The State v. Smith, 44 Kan. 75.) That course was pursued in the present case, and the finding made by the court that such a necessity existed was based on the testimony of a physician and other evidence, some of which is not preserved. In the absence of that evidence, we cannot say that there was not good cause for the discharge. From what appears, we think that the court did not act capriciously, nor without a due regard for the rights of the defendant. After the illness of the juror was reported, the court postponed the trial from day to day, in the expectation that the juror would recover sufficiently to complete the trial. Several inquiries were made as to his condition and the prospect of recovery. At the end of five days he was still seriously sick, and his recovery was a matter of great uncertainty. It is said that the near approach of the end of the term influenced the court, to some intent, in reaching the conclusion which it did. Of itself, this might not be sufficient to justify a discharge, but as the real inquiry was whether the sickness of the juror required the jury to be discharged, the finding of the court made upon this inquiry is necessarily binding upon us. As the testimony taken at the time of the discharge was made a part of the plea, and a demurrer thereto sustained, the question raised upon the reply to the plea is not deemed material.

Upon leave of the court, obtained without notice to the defendant, the state was permitted, at the time of the trial, to indorse upon the information the names of eight witnesses who gave material testimony in the case. This indorsement was made just before the trial, on April 5, and it is contended that, as the testimony given by these witnesses was important, the action of the court in permitting the indorsement was an abuse of discretion, which resulted in prejudicing the rights of the defendant. It appears that on the 3d day of February a motion was made to indorse the names of the new witnesses, which motion was sustained by the court. Afterward the names of these witnesses so indorsed were stricken from the information, and it was said that it was done upon the ground that the order for indorsing the names of witnesses was made in the absence of the defendant. It thus appears that the attention of the defendant and his attorneys was called to these witnesses, and, further, that inquiry had been made of them as to what their testimony would be. Under the circumstances, it cannot be said that the court exercised its discretion without due regard for the rights of the defendant, or that he was prejudiced by the ruling.

Three jurors were challenged on the ground that they did not possess the requisite qualifications of jurors. The objection urged is, that their names did not appear on the tax rolls of the county, and hence that they should have been excluded from the panel, upon the objection of the defendant. The showing made upon this point is not satisfactory. While it appeared that these jurors did not pay any personal taxes for the preceding year, it was not shown that they did not pay taxes on real estate, nor that their names did not appear on the assessment rolls of their respective townships. It appears that two of them were listed for personal taxes, but that the value of the personal property which each had for taxation did not equal the exemption allowed to him; and in the case of the third, he stated that he had made a return for a stock company as its manager and agent, but that he had not been assessed for personal taxes. Whether he was upon the tax roll is not shown. No inquiry was made as to whether they had real estate listed in their names in the respective townships in which they lived, and nothing to show that they did not pay taxes on real estate for the preceding year. The statute provides for listing both personal and real estate in the name of the owner. (Gen. Stat. of 1889, PP 6889, 6911.) It is further provided, that in making a list of persons to serve as jurors the jury commissioners shall select from those assessed on the assessment rolls of the several townships and cities of the preceding year. (Gen. Stat. of 1889, PP 3567, 3601.) The evident purpose is to obtain the service of jurors who are substantial citizens and owners of property, and the assessment rolls referred to in the jury law are evidently those made in the listing of both real and personal property. As it does not appear that they were not upon the personal property assessment rolls, nor that they did not own and pay taxes on real estate, this objection must be overruled. ( The State, ex rel., v. Comm'rs of Rawlins Co., 44 Kan. 528.) Other objections were made with reference to the jury, but an examination discloses that they are not material.

The next complaint relates to the ruling of the court in admitting what was received as the dying declaration of the deceased. Hopper was shot by Reed about 5 o'clock on the evening of May 21, 1892, and soon afterward was carried to his home, where an examination of his wound was made by physicians and surgeons, who informed him that his injury was fatal, and admonished him that if he had any business matters which required attention he should attend to them, as he could not live long. He repeatedly expressed the opinion that he was about to die. A minister of the gospel was called in. He requested a neighbor to act as guardian for his children, gave information about insurance on his life, and directed how it and his property should be applied. He suffered intense pain, and at times cried out, "I am dying now." A stenographer was sent for, and a dying statement as to the shooting, and the cause of it, was taken down, which was afterward introduced in evidence. Some time after the statement was given, he rallied some, and used language which indicated that he was then not without hope of recovery; but soon afterward he expired. It is claimed that, under the circumstances, the statement should not have been received in evidence. It is clear that the statement was made in the belief of impending death, and the fact that there was' an interval of' several hours between the time the...