State v. Ryno

• Decision Date: 09 January 1904
• Docket Number: 13,501
• Citation: 74 P. 1114,68 Kan. 348
• Parties: THE STATE OF KANSAS v. A. B. RYNO
• Court: Kansas Supreme Court

74 P. 1114

68 Kan. 348

THE STATE OF KANSAS v. A. B. RYNO

No. 13,501

Supreme Court of Kansas

January 9, 1904

Decided January, 1904.

Appeal from McPherson district court; M. P. Simpson, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. CRIMINAL LAW -- Assault with Deadly Weapon. One charged in an information with shooting with intent to kill with a deadly weapon, under section 38 of the crimes act (Gen. Stat. 1901, § 2023), may upon sufficient proof be convicted under section 42 of the same act (Gen. Stat. 1901 § 2027), of wounding under circumstances that would have constituted manslaughter in the fourth degree if death had ensued.

2. EVIDENCE -- Proof of Handwriting. Proof of the genuineness of a disputed writing may be made by a comparison with other writings of the same person, either admitted or clearly proved to be genuine.

3. EVIDENCE -- Handwriting -- Questions for Court and Jury Distinguished. The sufficiency of the proof of a writing to be admitted as a standard of comparison is a question to be passed upon in the first instance by the court, but the weight and effect to be given the evidence by comparison, including the genuineness of the standards, is ultimately a question for the determination of the jury.

4. EVIDENCE -- Testimony of Expert -- Use of Blackboard. An expert in handwriting may give not only an opinion, but the reasons for his opinion, in his examination in chief, and for the purpose of illustrating and explaining his testimony and conveying to the jury the reasons for his opinion he may be permitted to make illustrations upon a blackboard.

5. CRIMINAL PRACTICE -- General Instructions about Reasonable Doubt, etc. Where there is a general instruction that each juror shall act upon his own judgment, and that each must be satisfied beyond a reasonable doubt that every element of the offense has been proved before there can be a conviction, it is not necessary to apply this rule of individual right and responsibility of jurors to each feature and element of the offense.

6. CRIMINAL PRACTICE -- Instruction Concerning Failure of Defendant to Testify. The defendant not having testified in his own behalf, the court instructed the jury that "while the statute of this state provides that a person charged with crime may testify in his own behalf he is under no obligation to do so, and the statute expressly declares that his neglect to testify shall not create any presumption against him." Held, that the giving of the instruction in this form was not prejudicial error.

7. CRIMINAL PRACTICE -- Refusal to Instruct as to Assault. Under the evidence in this case, wherein it appears that if the defendant was guilty of any offense it was one of a higher grade than a mere assault, the refusal of the court to instruct the jury as to assault is not error.

8. DEADLY ASSAULT--Evidence Sufficient. The evidence examined and held sufficient to sustain the conviction.

C. C. Coleman, attorney-general, D. P. Lindsay, Frank O. Johnson, and Grattan & Grattan, for The State.

John D. Milliken, and F. L. Martin, for appellant.

JOHNSTON C. J. All the Justices concurring

OPINION

JOHNSTON, C. J.:

On the night of July 5, 1902, while Maud Holmes was in her chamber preparing to retire, a gun was fired near the house, a charge of shot from which passed through a screen window near which she was standing, striking her head, neck, and breast, and inflicting serious wounds. She was a young unmarried woman who lived on a farm with the other members of the Holmes family, consisting of her father, mother, and sister, all of whom were in the house when the shooting occurred. No one was seen to fire the gun and who did it was, for some time at least, a puzzling problem. Attention was finally directed toward A. B. Ryno, who resided in another neighborhood about three miles distant from the Holmes place. He was about fifty years of age, married and having a family of five children, the youngest of whom was sixteen years of age.

It appears that in January, 1901, some one representing himself to be George R. Clark wrote to Maud Holmes, proposing a correspondence with her. He claimed to be from Ohio and was in Kansas looking for investments, and dated his letter at Canton, Kan., a point in the county in which Maud Holmes lived. She consented to, and did, correspond with him for a time, keeping copies of the letters which she sent to him. Although his letters were posted from neighboring places and on railway-trains near Maud Holmes's home, he did not call on her until October 8, 1901, when he introduced himself as the George R. Clark who had been carrying on the correspondence. At the same time he also met Maud's father and mother, and as the visit lasted about three hours all had an opportunity to observe his appearance, manners, and peculiarities. He talked about the correspondence and the subjects about which they had been writing, and undertook to explain the reasons why his letters had been so strangely posted at different places. At that time Maud indicated that she did not desire to carry on the correspondence further, but he continued to write to her and to other members of the Holmes family until shortly before the shooting. The letters first suggested love, a desire for matrimony, an effort to have Maud meet him at different places, and to take a trip to Ohio. There were some sensual allusions, which suggested resentment because she did not conform to his wishes; jealousy of a young man with whom she was keeping company; a possible or impending tragedy in the family, and references to the poisoning of the Holmes dog; an attack on, and fright of, Maud a short time before she was shot; and other occurrences about the Holmes home about which only a participant could well have knowledge. Ryno was recognized by Maud and the other members of her family as the George R. Clark who had called at the Holmes place and then acknowledged the writing of the letters sent prior to the visit. These, with other circumstances, pointed to him as the guilty one and a prosecution was instituted against him. He was charged with an assault upon Maud Holmes with an intent to kill her, under section 38 of the crimes act (Gen. Stat. 1901, § 2023), and upon the trial the jury found him guilty, under section 42 of the same act (Gen. Stat. 1901, § 2027), of wounding Maud Holmes under circumstances which would have constituted manslaughter in the fourth degree if death had ensued.

On appeal he complains, first, that the court submitted the case on the theory that the offense defined in section 42 of the crimes act was included in the offense charged under section 38, and he contends that the offense of which he was found guilty is not included in the one charged in the information, and that the verdict rendered was equivalent to an acquittal of the charge. In effect, the same question was raised in The State v. Burwell, 34 Kan. 312, 8 P. 470, and decided contrary to the contention of the appellant. In that case the charge was under the same section, of shooting with intent to kill with a deadly weapon, and the verdict was the same as the one returned in the present case, of wounding under circumstances that would have constituted manslaughter in the fourth degree if death had ensued. We see no reason to change the rule which has been so long followed and which no doubt guided the court in the submission of the case. See, also, The State v. Fisher, 8 Kan. 208; The State v. Terreso, 56 id. 126, 42 P. 354; The State v. Smith, 57 id. 673, 47 P. 541; The State v. Countryman, 57 id. 815, 48 P. 137.

Error is assigned on the admission of the testimony of J. F. Shearman, or rather on the manner in which he gave his testimony. It is said that he is a member of the bar and a clerk in the federal court, with a state reputation as an official and citizen of exceptional natural ability and unusual accomplishments; that he is of fine personal appearance and has had an experience of fifteen years in studying and testifying as an expert in handwriting, and that he gave his testimony with illustrations on a blackboard in an argumentative and very impressive way. The testimony does show that he had given the subject of handwriting much study and that his qualifications as an expert had been recognized in many of the state and federal courts where he had been called to give testimony. His apparent intelligence, study and experience leave no doubt of his qualifications, and in fact the appellant does not much question his competency, but does complain of the use of the blackboard with which he illustrated his testimony.

For the purpose of illustrating and explaining his testimony, an expert as to handwriting may make use of a blackboard. In this way he can convey to the jury the reasons for his opinion and make the points of similarity or difference upon which his opinion rests more intelligible to the jury. ( McKay et al. v. Lasher et al., 121 N.Y. 477, 24 N.E. 711; Dryer v. Brown, 52 Hun 321, 5 N.Y.S. 486; 15 A. & E. Encycl. of L., 2d ed., 281.)

There were submitted to this witness a large number of letters and other writings, and he made a comparison between them and other writings admitted or proved to be genuine. His testimony was therefore necessarily quite extended. It was competent to inquire of him on the direct examination the reasons for his opinion, and the blackboard illustrations served this purpose efficiently. His opinion unexplained, might have had little value, but when the reasons upon which it was based were given, the jury could then determine the soundness of his reasons and the correctness of his conclusions. In Steam Mill Co. v. Water Power Co., 78 Me. 274, 4 A. 555, it was expressly decided that the expert may give not...