State v. Swartz
| Decision Date | 12 October 1912 |
| Docket Number | 17,972 |
| Parties | THE STATE OF KANSAS, Appellee, v. LOUIS A. SWARTZ, Appellant |
| Court | Kansas Supreme Court |
Decided July, 1912.
Appeal from Nemaha district court.
Judgment affirmed.
SYLLABUS BY THE COURT.
1. CRIMINAL LAW--Jurors--Order of Challenge--Judicial Discretion. Where a defendant in a criminal action is allowed a full opportunity to examine and challenge for cause every juror called into the box the allowance of a challenge by the county attorney of three jurors at one time is not prejudicially erroneous.
2. CRIMINAL LAW--Examination of Jurors. Where in an examination of a juror concerning his competency an objection to a question is sustained, but the next question, answered without objection, elicits the information sought by the first one, the ruling is without prejudice.
3. CRIMINAL LAW--Instructions--Reasonable Doubt. Where sufficient instructions concerning reasonable doubt are given the refusal of other instructions purporting to further define that term is not erroneous.
4. CRIMINAL LAW--Instructions--Transaction Relied Upon for Conviction. An instruction that the state relies for conviction upon a certain specified transaction as testified to by the prosecuting witness, is not open to the objection that it assumes that the transaction so testified to has in fact occurred.
5. CRIMINAL LAW--Evidence--Rebuttal--Self-contradiction by Witness. Where a witness testifies to the time and circumstances of the defendant's appearance at a certain place, in support of the claim that he was not present when and where the alleged offense was committed, evidence that the witness had previously stated that he was asleep at the time referred to in his testimony is admissible after his attention has been properly directed to such previous statement upon cross-examination.
W. W Redmond, of Marysville, Wells & Wells, of Seneca, Gregg & Gregg, of Frankfort, and Crane & Woodburn Bros., of Holton, for the appellant.
John S. Dawson, attorney-general, C. H. Herold, county attorney, R. M. Emery, and R. M. Emery, jr., both of Seneca, for the appellee.
This is an appeal from a conviction for statutory rape upon one of sixteen counts of the information.
Errors are assigned upon rulings made in impaneling the jury, in the admission of testimony, and in the instructions.
A juror was asked the following question by the appellant's attorney:
An objection was sustained, whereupon another question was asked and answered without objection, as follows:
The last question having been answered the ruling upon the first one became immaterial. Even if the juror had answered in the affirmative, his retention would not have been error prejudicial to the substantial rights of the defendant. (The State v. Vogan, 56 Kan. 61, 42 P. 352; Crim. Code, § 293.)
After each party had examined the jurors concerning their competency, the court inquired whether the state had any cause of challenge, whereupon the county attorney challenged three jurors for cause at one time. The same procedure was afterwards repeated. It is argued that the challenges should be made separately in the absence of any specific directions in the criminal code. Section 283 of the civil code is cited in support of this contention. If each one of the three jurors had been challenged separately and his seat filled before another challenge was presented, the same result would have been reached. The defendant was allowed the right to examine and challenge the jurors called in place of those excused, and at each change in the panel was asked if he had any challenge to the jurors as the panel then stood.
His rights appear to have been protected and the jury was unobjectionable. (Crim. Code, § § 206, 208; The State v. McCorckle, 74 Kan. 280, 86 P. 134.)
Several instructions were requested and refused purporting to define the term reasonable doubt as applied to the particular case. The instructions given on that subject were clear and sufficient. The court did not err in refusing the defendant's request.
In pursuance to an election by the county attorney upon an order made at the request of the defendant, the jury were informed that "The State has elected to rely for a conviction on the act of sexual intercourse between defendant Louis A. Swartz and Marcella Johnson, on the evening of May 31, 1910, or early in the following morning, as testified to by Marcella Johnson." The objection urged to this instruction is that it assumed a disputed fact by stating that the unlawful intercourse charged had in fact occurred. This interpretation does violence to the language used. The instruction recited the election and informed the jury that the state relied upon a transaction testified to by the witness but does not assert that such transaction had occurred. The question whether it had in fact taken place was fairly submitted to the jury as a question of fact upon all the evidence.
A further contention of the appellant is that there was error in permitting evidence of statements previously made by a witness contradictory of his testimony on the trial. The prosecuting witness testified that the defendant left her home about one o'clock on the night in which the criminal act of which he was convicted was committed. To sustain an alibi a witness named Whitte, called by the defendant testified that he was with the defendant and the prosecuting witness at a party that night, went with them to her home and thence directly to Mr. Swartz's home where he--the witness--was working, and that defendant arrived there soon afterwards, at about 12 o'clock. This evidence was material and tended to show that the defendant was not present at the time and place of the alleged offense. On...
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