State v. Rogers

• Decision Date: 11 January 1896
• Docket Number: 10357
• Parties: THE STATE OF KANSAS v. GEORGE W. ROGERS
• Court: Kansas Supreme Court

43 P. 256

56 Kan. 362

THE STATE OF KANSAS v. GEORGE W. ROGERS

No. 10357

Supreme Court of Kansas

January 11, 1896

Decided January, 1896.

Appeal from Reno District Court.

THE defendant was convicted in the district court of Harvey county of burglary in the second degree, the crime being committed on the night of March 23, 1893, by breaking into a building occupied as the court-house of said county with intent to set fire to, burn and destroy the books and records of said county. After sentence he appealed to this court where the judgment was reversed because of the admission of incompetent testimony. The report of the case contains a summary of the evidence. (54 Kan. 683-698.) A change of venue was afterward granted, and the case was sent to Reno county for trial. It was called for trial May 13, 1895. The defendant applied for a continuance on the ground of the absence of witnesses, and the court held that the showing was sufficient; thereupon the state consented to the reading of the evidence contained in the application as the depositions of the absent witnesses, and a jury was impaneled and sworn to try the cause, a plea of not guilty having been entered. No further proceedings were had until the next day, when, the case being called, it was announced that the defendant was sick, and unable to attend the trial. His home was at Newton where he went with Willard Kline, one of his attorneys, on the evening of May 13. The state requested the court to appoint three physicians to go to Newton and examine the defendant and report his condition; and thereupon the court appointed Doctors Klippel and Colladay, of Hutchinson, and Doctor Boyd, of Newton, to perform that service, and the court adjourned until May 15. On that day, the physicians and Willard Kline were called and examined as witnesses respecting the physical and mental condition of the defendant, and the court found therefrom that the defendant was able to be present in court, and that his physical condition was not such as to prevent or excuse him from attending, and the sheriff was ordered to bring him into court on May 16, at 9 o'clock A. M. When that time arrived, counsel for defendant again applied for a continuance on the showing already made and the affidavit of Stella E. Rogers, wife of the defendant, which was read. Thereupon the sheriff was ordered to take charge of the defendant with such deputies as he might choose, and Doctors Sidlinger, Shearer and Wilson were appointed to treat him until ready for trial, and to see that nothing was given him except under their direction. The court adjourned to May 17 and then again to May 20, which was the last day of the regular term, as the law fixed May 21 as the beginning of the regular term in Harvey county, in the same judicial district. On May 20, the court again adjourned to May 22, when the case was called, but it was objected on behalf of the defendant that the term had expired by law, and another term had commenced in Harvey county; but the objection was overruled for the reason stated orally by the judge, and not otherwise appearing, that he opened the court in Harvey county on May 21, and adjourned the same until June 3, 1895. The defendant and his attorneys again applied for a continuance on the ground of the inability of the defendant to be present and advise with his counsel and direct the management of the case, and in support thereof offered another affidavit of said Stella E. Rogers, and the state presented the affidavits of Doctors Wilson, Klippel, Colladay and Sidlinger in opposition thereto; and thereupon the court found that the defendant was able to be placed on trial, and was in a fit and suitable condition physically to be present, and the application for a continuance was overruled, and the case proceeded to trial. It appears that the defendant occupied a cot during the trial, and spoke to his counsel only in whispers, and that, while testifying as a witness, his answers were repeated to the jury by his counsel; but it was claimed by the state, and the evidence heard on the application for a continuance strongly tended to show, that the sickness of the defendant was feigned, and not real, and that his disability was simulated, although he was really weak, and not in good health. The trial proceeded until May 25, when the court instructed the jury, and the case was then argued by counsel and submitted. On May 28, after the jury had deliberated 24 hours, they were brought into court, and the judge made remarks orally, which were afterward reduced to writing by him, as follows:

"Gentlemen of the jury, the duties of a juror in every case are very arduous, and you have been out in this case for 24 hours, and I suppose that I need not remind you that it is a matter of great public importance that this case be decided. You, of course, know yourselves that it has been a great expense to the public to try this case; and if you should disagree and another trial should be had--all the expense of this trial being lost, and another trial being had at the same expense--after the trial was through, and the jury impaneled to try the case again would probably have no more evidence than has been presented to this jury, and there is no reason why this jury should not decide this case with the same fairness and correctness that any other jury should decide it. I feel, therefore, that I could not discharge you as jurors in this case without requiring you to a much greater effort to agree upon your part upon a verdict than you have made up to date. I suppose, as you stated this morning, there are no questions of law about which the jury disagree. If there are any such questions, you can make them known to the court. The court grants the defendant an exception to all the remarks made by the court to the jury. Of course, gentlemen of the jury, as stated in the written instructions, you are the sole and exclusive judges of all the facts in the case and the credibility of the witnesses, and I have no desire now, in anything I have said, to invade the province of the jury."

On May 29, the jury returned a verdict of guilty of burglary in the second degree, and on May 31 the defendant filed a motion for a new trial, which was heard and overruled on June 1, and the defendant was sentenced to imprisonment at hard labor in the penitentiary for the term of five years, and from this judgment he appeals. The opinion herein was filed January 11 1896.

Judgment affirmed.

Wall & Brooks, and Willard Kline, for appellant.

F. B. Dawes, attorney general, and C. E. Branine, county attorney, for The State; Bowman & Bucher, of counsel.

MARTIN C. J. All the Justices concurring.

OPINION

MARTIN, C. J.:

I. It is strongly urged by counsel for defendant that the court erred in refusing to grant a continuance on account of his sickness and disability. The embarrassing and delicate duty of passing upon the defendant's physical and mental condition was devolved upon the court. The proceedings were very unusual, but we cannot say that they were not justified by the situation, the good faith of the application for a continuance being challenged by the state. In The State v. Rhea, 25 Kan. 576, 579, it was declared that

"Continuances are largely within the discretion of the trial court; and, before error can be affirmed, it must be shown that such discretion has been abused. It is not enough that conditions and circumstances are shown which would justify a postponement; there must be those which compel such postponement. Any uncertainty or doubt in this respect must be resolved in favor of the ruling below. Abuse of discretion is never presumed; it must be proved."

See, also, Cushenberry v. McMurray, 27 Kan. 328; Krapp v. Hauer, 38 id. 430; and Harlow v. Warren, 38 id. 480, where applications were made for continuances on the ground of the sickness of a party. In Hottenstein v. Conrad, 9 Kan. 435, 440, 441, it was held that whatever fact a court may inquire into on a motion it can also determine, and its determination establishes the fact for all the purposes of the motion. Upon the record, we cannot say that the court erred in its conclusion, nor that it abused its discretion in refusing to grant a continuance.

II. It is insisted that the court erred in admitting testimony over the defendant's objections. The prosecution offered to introduce in evidence some statements made by the defendant on the first trial by selecting and reading portions only of what was. claimed to be his testimony, as shown on certain designated pages of the bill of exceptions. To this his counsel objected that a part of such former testimony could not be introduced against him, but that it must all go to the jury, and the court took this view of the case; and counsel for the state then proceeded, under protest, to read it all from the bill of exceptions transcribed from the stenographer's notes. The defendant then interposed the general objection that the testimony was incompetent irrelevant, and immaterial. The attorney for the state thereupon inquired of counsel for the defendant if he would admit that he was reading from the bill of exceptions filed by the defendant in the former trial, and counsel responded in the affirmative, but said that he still objected to the evidence as incompetent, irrelevant, and immaterial, which objection was overruled; and it is then stated...