State v. Sortor

• Decision Date: 05 November 1892
• Citation: 52 Kan. 531,34 P. 1036
• Parties: THE STATE OF KANSAS v. FRED. SORTER
• Court: Kansas Supreme Court

34 P. 1036

52 Kan. 531

THE STATE OF KANSAS v. FRED. SORTER

Supreme Court of Kansas

November 5, 1892

Appeal from Wyandotte District Court.

PROSECUTION for murder; trial at the December term, 1890; verdict, guilty of murder in the second degree; new trial denied; the defendant, Fred. Sorter, sentenced to confinement in the penitentiary for 10 years. He appeals. All the material facts are stated in the opinion.

Judgment affirmed.

Hale & Fife, for appellant.

John N Ives, attorney general, and Hutchings & Keplinger, for The State.

OPINION

JOHNSTON, J.:

This was a prosecution for murder. The information charged Fred. Sorter with murder in the first degree, in the feloniously killing of Enoch J. Link, on the 30th day of May, 1890, by shooting him with a double-barrel shotgun. The trial resulted in a conviction of murder in the second degree, and the defendant was sentenced to confinement in the penitentiary for a period of 10 years. In the course of a protracted trial, a great many exceptions were taken to the rulings of the court, and such of them as seem to us to require attention will be noticed in their order of presentation.

When the case was called for trial, the county attorney asked permission to indorse the names of additional witnesses upon the information. Objection was made by counsel for the defendant, on the ground that they had no opportunity to examine into the credibility and standing of the witnesses. It was represented by the prosecution that these witnesses lived in the immediate vicinity of the place of trial, and that notice of the application had been given to the defendant as soon as they learned the names of the witnesses and the necessity for calling them. The court permitted the names to be indorsed upon the information, and on the application of the defendant's counsel for delay, ruled that no testimony would be received within 48 hours from the time notice was served upon the defendant that such application would be made. The defendant has no cause for complaint on these rulings. Sufficient time was given the defendant to make full inquiry regarding the proposed witnesses before the reception of any evidence. Only one of the witnesses whose names were so indorsed was called to testify, and her testimony appears to be wholly immaterial. Besides, the court, in the furtherance of justice, is invested with power and discretion to permit the names of witnesses to be indorsed upon the information after it has been filed, and even after the trial has actually commenced. (The State v. Cook, 30 Kan. 82, 1 P. 32; The State v. Adams, 44 id. 135.) There was no abuse of that discretion in this instance.

Application for a continuance was made by the defendant on account of the absence of one Thomas Moody, who was a resident of Wyandotte county, but was then absent from the state. He had testified in favor of the defendant at a previous trial, and soon afterward went to South Dakota. The application for a continuance was denied; and a sufficient reason for the ruling was, a want of diligence on the part of the defendant in an effort to obtain the testimony of this witness. Before the ruling, the prosecution offered to consent to the reading of Moody's testimony which was given at the former trial, and the court, in denying the application, ruled that the testimony taken at the former trial might be read in evidence. The defendant availed himself of this privilege, and all of the testimony previously given by Moody was read to the jury. No error was committed by the court in overruling the application for a continuance.

Several exceptions were taken to the rulings of the court in impaneling the jury. Three persons called as jurors, and who were examined as to their qualifications, were challenged by the defendant, but their challenges were overruled. Only one of them served on the panel which tried the case. One of them, Peacock, had read an account of the transaction in the newspapers at the time of its occurrence, and had heard it spoken of by others who had read a like account. From the information derived from the newspaper accounts he formed the opinion that Link was shot by the defendant and died from the gunshot wound inflicted by him; but upon further inquiry he answered that he had not formed or expressed any opinion relative to the guilt or innocence of the defendant, and knew nothing about the facts of the case except what he had learned from the newspapers. He was peremptorily challenged by the defendant. When another of them, Canary, was examined as to his competency, he stated that he had read the newspaper accounts of the shooting, about the time of its occurrence, and had an opinion that Link was dead, and that he died from the effects of a gunshot wound inflicted by Sorter, and that he still entertained the same opinion. He stated, however, that he had had no acquaintance either with the defendant or with the deceased, and had no personal knowledge of any of the facts of the case, nor had he talked with anyone who had personal knowledge of the facts; that he had neither formed nor expressed an opinion as to the guilt or innocence of the defendant, and that he could fairly try the case, and would not be influenced by anything that he had heard or read of the occurrence. He was held to be a qualified juror, but was subsequently peremptorily challenged by the defendant. Charles Stover was challenged for incompetency, but was retained by the court and was a member of the jury that tried the case. He had read one account of the killing in a newspaper about the time it was done, and this was the only information he ever had about it, but he had formed no opinion therefrom as to the guilt or innocence of the defendant. He had formed an opinion that Link was shot and killed by Fred. Sorter, and he stated that he would continue to think so until the opinion was removed by evidence, but he did not hold nor had he ever expressed any opinion as to whether the defendant was guilty of any crime by reason of the shooting and killing of Link. He had never had any acquaintance with either the defendant or the deceased. We think no prejudicial error was committed by the court in its rulings upon these challenges. It is true that the jurors held the opinion that Link was shot by Sorter, and had died from the effects of the wound which he had inflicted; but it appears that this was not a controverted issue between the parties. The defendant had always admitted that he had shot and killed Link, but his claim was that he was justified in doing so, on the grounds of self-defense. The defendant was of course entitled to a jury whose minds were free from any previously-formed opinions on any material fact or question involved in the case; but an opinion upon a fact openly conceded by the defendant could hardly influence the jurors in determining the guilt or innocence of the defendant. He insisted from the beginning that he had fired the fatal shot in repelling an assault made upon him by Link. He testified fully as to the occurrence upon a former trial, and the fact that he had shot and killed Link was then admitted by him. In the final trial, he was again a witness in his own behalf, and stated in detail the circumstances of the killing, making the same admission. It therefore appears that the killing of Link was not a material issue in the case; and as the jurors challenged had not formed nor expressed an opinion as to whether the killing was justifiable or not or upon any material fact in issue, no substantial error was committed in overruling the challenges. (The State v. Wells, 28 Kan. 321; The State v. Guild, 40 id. 258.)

Complaint is also made of rulings excluding several jurors from the panel. One of them, who claimed that he had neither formed nor expressed an opinion as to the guilt or innocence of the defendant, lived in the neighborhood of the occurrence, was acquainted with the defendant, and had heard the facts of the case discussed by quite a number of persons some of whom claimed to know all about the occurrence. Another who thought he could give the defendant a fair trial had read the evidence of the former trial, from which he had formed an opinion in the case. Another of them was acquainted with the defendant, had heard and read a great deal about the facts, and had expressed an opinion as to the guilt or innocence of the defendant, but was of the opinion that he could fairly and impartially try the case. Another was a brother-in-law of one of the counsel for the defendant, and had talked with several persons in regard to the facts, and was not positive but that he had talked with his brother-in-law in regard to the matter. Another was present a short time during the former trial and heard a witness testify in the case, had read the newspaper accounts of the case, and held an opinion which was not a mere impression. It appears to us that there is no good reason to complain of the action of the court in excusing these jurors. In impaneling a jury, a large discretion is necessarily confided to the court, and there appears to have been some reason in each case for the action taken. From what appears in the record, the judge might, as it seems to us, have overruled some of these challenges without committing error; yet he not only heard their answers, but saw their conduct, and was better able to determine whether they were suitable jurors. The rule applicable in retaining jurors does not apply in discharging them; and so it has been said,

"that a trial court has, and should have, a very extensive and almost unlimited discretion in discharging a person called to serve on a jury, who might, in the opinion of the court, not make the fittest or most competent person to serve on the jury in...