State v. Simmons
| Decision Date | 07 November 1908 |
| Docket Number | 15,890 |
| Citation | 98 P. 277,78 Kan. 852 |
| Parties | THE STATE OF KANSAS v. DAVID SIMMONS |
| Court | Kansas Supreme Court |
Decided July, 1908.
Appeal from Geary district court; OSCAR L. MOORE, judge.
Judgment affirmed.
SYLLABUS BY THE COURT.
1. CRIMINAL LAW -- Testimony of Accused Given at a Former Trial Admissible. Where a defendant on trial on a charge of felony voluntarily goes upon the witness-stand and testifies in reference to his connection with the offense charged and the circumstances connected therewith, and after judgment procures a new trial, his evidence, properly identified and reduced to writing by a stenographer at the first trial, may be introduced in evidence by the state upon the second trial.
2. CRIMINAL LAW -- Privilege of Accused--Waiver. In such case, if the accused waives his privilege and takes the witness-stand in his own behalf at any stage of the prosecution, he waives it for every subsequent stage.
3. CRIMINAL LAW -- Absence of a Witness--Testimony Given at a Former Trial. The state may use the evidence of a witness upon the second trial of a felony when the evidence given by the witness on the first trial was reduced to writing and properly identified and at the time of the second trial the witness was dead or was not within the boundaries of the state.
4. CRIMINAL LAW -- Conduct of Prosecuting Attorney in Argument--Discretion of the Court. The extent to which a prosecuting attorney may go in his closing argument in illustrating before the jury what he claims the evidence proves, by placing other persons or himself in certain positions, is a matter within the discretion of the court and, unless it is shown that such discretion was abused and that the defendant was prejudiced by an illustration not justified by any evidence in the case, error will not be predicated upon the ruling of the court allowing the same.
Fred S. Jackson, attorney-general, and W. S. Roark, county attorney, for The State.
John E. Hessin, for appellant.
This case has been in this court before. (The State v. Simmons, 74 Kan. 799, 88 P. 57.) The defendant was convicted of the crime of murder in the second degree, and a new trial was awarded in this court. On the second trail he was convicted of manslaughter in the second degree, and again appeals. He makes numerous assignments of error. With three exceptions all of the material questions raised were considered on the former hearing, and, inferentially at least, were decided adversely to the appellant. Although each question has been reconsidered, we are satisfied with the former decision thereon and we shall not burden this opinion by discussing them in detail.
The defendant voluntarily took the witness-stand in his own behalf and was cross-examined at the first trial. His evidence was written by a stenographer, and after it was duly identified was offered by the state in the second trial. The defendant by his counsel suggested to the court that the defendant was present, that under the provisions of the constitution he could not be compelled to give evidence against himself, and that the reading of his testimony would be equivalent to compelling him to testify. The defendant was not requested again to take the witness-stand, but his objection to the reading of his former testimony was overruled. It is said in volume 1 of Thompson on Trials, section 647:
"If the accused waives his privilege and takes the witness-stand in his own behalf, at any stage of the prosecution, he waives it for every subsequent stage."
This court has four times passed upon the question involved. ( The State v. Sortor, 52 Kan. 531, 34 P. 1036; The State v. Miller, 35 Kan. 328, 10 P. 865; The State v. Taylor, 36 Kan. 329, 13 P. 550; The State v. Nelson, 68 Kan. 566, 75 P. 505.)
It is urged that the court erred in allowing the evidence of a witness, Bertha Parker, given on the former trial and taken by the stenographer and duly identified, to be read in evidence after...
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