State v. Sexton
| Citation | 136 P. 901,91 Kan. 171 |
| Decision Date | 06 December 1913 |
| Docket Number | 18,930 |
| Parties | THE STATE OF KANSAS, Appellee, v. A. G. SEXTON, Appellant |
| Court | United States State Supreme Court of Kansas |
Decided July, 1913
Appeal from Cloud district court; JOHN C. HOGIN, judge.
Judgment affirmed.
SYLLABUS BY THE COURT.
1. TRIAL--Application for Continuance--Illness of Defendant--Conflicting Evidence. A denial of applications for continuance based upon a consideration of evidence abundant and conflicting is not erroneous.
2. CHANGE OF VENUE--Prejudice of Judge. When a trial judge is conscious that he has no prejudice against a defendant he is justified in refusing a change of venue asked for on the ground that he is prejudiced.
3. TRIAL FOR MISDEMEANOR--Willful Absence of Defendant. In a misdemeanor case--a continuance applied for on the ground of the defendant's physical condition having been rightfully refused--his counsel refused to plead for him, whereupon the court entered a plea of not guilty and the trial proceeded defendant's counsel remaining and cross-examining the state's witnesses. After a verdict of guilty had been returned the defendant personally received sentence. Held, that his absence and failure to plead do not entitle him to a new trial.
4. CROSS-EXAMINATION--Collateral Issues--Foundation for Impeachment. The rule that a foundation for impeachment can not be laid by questions on cross-examination which involve collateral issues, followed.
5. NUISANCE--Evidence--Exhibits--Consignments of Liquor Delivered to Defendant. In a prosecution for unlawfully selling intoxicating liquor and maintaining a nuisance the state was permitted to introduce certain exhibits showing shipments of liquor by the consignors to themselves with directions to notify one of their clerks. It was shown that such clerks gave directions to the carrier to deliver the packages to a drayman who delivered them to the defendant who expressed satisfaction with the arrangement. Held, that such exhibits were competent.
A. L. Wilmoth, of Concordia, and W. B. Leslie, of Clay Center, for the appellant.
John S. Dawson, attorney-general, and M. V. B. Van De Mark, county attorney, for the appellee.
The defendant was charged in four counts with the unlawful sale of intoxicating liquors and in the fifth with maintaining a nuisance, and was found guilty on all. A warrant was issued February 15, 1913, and on that day the defendant gave bond. On April 8 he filed a motion for continuance on the ground of physical inability to attend trial, testimony being received for and against such motion, which was overruled and the trial postponed until April 10. On the date last mentioned a change of venue was asked for on the ground of prejudice of the trial judge, and refused, whereupon application for continuance over the term was made on the ground of the defendant's physical condition and for the further reason that the court in passing upon the motion and the showing made for continuance used language prejudicial to the interest of the defendant and which would tend to prejudice the minds of the jurors against him. This was also denied and the defendant was ordered to be arraigned. Objection was made by his counsel on the ground already referred to, and upon the ground that the defendant was unable to be present and plead and that the law did not authorize his attorneys to plead for him. The clerk was directed to read the information and the counsel were asked whether they would plead for the defendant, to which it was replied that they had no right so to do, whereupon the court entered a plea of not guilty as to each count. Counsel also objected to the jurymen then in the box being sworn to try the case, and objected to going to trial upon the ground of the defendant's inability to be present and plead or advise with his attorneys during the trial, and that all of the jurors then in the box except three had been present in the court room when the applications for continuance were presented, and had heard the affidavits and arguments and the remarks of the court. The objection was overruled and the trial proceeded. The defendant's counsel cross-examined the state's witnesses, but introduced no evidence after the state rested. On May 13 the defendant appeared in person and was sentenced by the court. He appeals and assigns as error the denial of the three continuances asked for, the denial of his motion for change of venue, entering the plea of not guilty in his absence, overruling his objections to proceedings before incompetent jurors, and excluding and admitting certain evidence.
Whether the three applications for continuances be considered separately or together the record shows abundant ground both for granting and for refusing. The evidence was very conflicting. A large number of physicians spoke from personal acquaintance with and examination of the defendant. Taking the testimony on his behalf alone, the court was justified in concluding that he was a physical wreck whose immediate collapse and dissolution might likely result from the excitement of a trial. Considering only the evidence on behalf of the state there was equally strong ground for holding that the defendant's claim of critical illness was recent in fact and fictitious in character. The court having weighed all of the evidence found and said that the application was not made in good faith, and it is impossible to find any error in this conclusion.
The fact that the trial judge in denying the continuance stated its finding that the application was not made in good faith but for the purpose of delay, after a charge by the county attorney that the defendant was trying to perpetrate a fraud, the defendant deems sufficient to require the change of venue applied for. It would seem from the record that much feeling was aroused over the case and the statement had been published, and that an order had been made to bring the defendant to court if necessary in an ambulance. To deny this the trial judge made and filed his own affidavit. He said from the bench that he had no personal acquaintance with the defendant and felt that he would not know him if he should walk into the court room; that he had no knowledge of the facts in the case or of the case in any way and had no prejudice of any kind against the defendant. Certainly no one could know the state of his own mind better than the trial judge himself, and feeling that he was free from prejudice he did not err in refusing to grant the change on a ground which his own conscience told him was not true. (The State v. Tawney, 81 Kan. 162, 105 P. 218, and cases cited.)
Counsel cite certain decisions from other states to support the contention that it was error to try the defendant in his absence. However, our statute provides for that fully. "No person indicted or informed against for a felony can be tried unless he be personally present during the trial nor can any person indicted or informed against for any other offense be tried unless he be present, either personally or by his counsel." (Crim. Code, § 207.) While in a literal sense the defendant was present by counsel, still it was by counsel who were objecting and protesting against proceeding in his absence. There is something so repellent to the sense of justice in trying a man in his absence that the books offer few if any instances of a trial involving heavy fines and long imprisonment with the defendant not only absent, but with his counsel strenuously attempting to prevent such proceedings. In Kenworthy v. El Dorado, 7 Kan.App. 643, 53 P. 486, the defendant in a misdemeanor case was absent, and it was held error to take a forfeiture over the objections of his attorneys, who were present demanding a trial, which was not the case here. In The State v. Gomes, 9 Kan.App. 63, 57 P. 262, the defendant in a misdemeanor case with his counsel willfully absented himself from the justice court during the progress of the trial, and after the verdict of guilty had been received returned and urged that such absence was a ground for arresting the judgment, and it was held that the justice did right in overruling the motion and in sentencing the defendant. It was held in ...
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