State v. Taylor
| Decision Date | 08 April 1887 |
| Parties | THE STATE OF KANSAS v. TOBIAS J. TAYLOR |
| Court | Kansas Supreme Court |
Appeal from Clark District Court.
PROSECUTION for murder in the first degree. From a conviction at the March Term, 1886, the defendant Taylor appeals. The opinion states the case.
Judgment affirmed.
Francis C. Price, and Dawson Smith, for appellant.
Stephen A. Parsley, county attorney, for The State.
OPINION
This was a criminal prosecution upon an information charging the defendant, Tobias J. Taylor, with feloniously killing Robert Layfield under such circumstances as to constitute the offense of murder in the first degree. It is alleged that the offense was committed in Clark county, Kansas, on June 26 1885; and all the proceedings had with reference to such offense were had in that county. A coroner's inquest was held on the next day. A preliminary examination was had before a justice of the peace on July 3, 1885. A second preliminary examination was had before a justice of the peace on March 9, 1886. The information upon which the defendant was tried was filed in the district court on March 15, 1886. A trial was had before the court and a jury, commencing on March 20, 1886, and ending on March 25, 1886, when the jury found the defendant guilty of murder in the first degree, as charged in the information. Some time afterward, but during the same term of the court, the defendant was sentenced in accordance with the verdict of the jury; and from this sentence he now appeals to this court.
The defendant's counsel assign numerous errors as having been committed by the trial court. The first one, alleging that "the court below erred in overruling defendant's motion for a change of venue," and the second one, alleging that "the court below erred in overruling defendant's motion for a continuance," are not discussed in the defendant's brief, and we shall not discuss them. They are overruled.
The third point made by the defendant, that "the court below erred in compelling the defendant to be put upon his trial and tried by an incompetent and illegally-selected jury," is discussed at length in the defendant's brief; and it requires more consideration. The boundary lines of Clark county were established, or rather reestablished, on March 13, 1885, by an act of the legislature, approved March 7, 1885. (Laws of 1885, ch. 71, § 2.) On the same day, March 7, 1885, the legislature attempted to attach the counties of Clark and Meade, until organized, to the county of Comanche for judicial purposes, (Laws of 1885, ch. 119, § 2;) but this attempt was abortive, for the reason that the act was not passed in accordance with the provisions of the constitution, and was therefore, to this extent, unconstitutional and void. (In re Wood, 34 Kan. 645.) On May 5, 1885, Clark county was duly organized. On June 26, 1885, the alleged offense was committed; and the proceedings with reference thereto were had as above stated. On February 26, 1886, by an act of the legislature, approved February 19, 1886, (Laws of 1886, ch. 121,) the 24th judicial district of the state of Kansas was created, and Clark county was placed in such district, and it was provided that terms of the district court should be held in that county on the third Tuesday of March and the third Tuesday of November in each year. The trial in this case was had at the March term of this court, 1886. The acts of the legislature relating to the selection and summoning of jurors which may have some application to this case are chapter 54 of the Compiled Laws of 1879, and chapters 116 and 117 of the Laws of 1886. Chapter 116 was passed on the same day on which the act creating the 24th judicial district was passed, and chapter 117 was passed on the next day. Under which one of the above-mentioned statutes it was intended to select, summon or impanel the jury, we do not know. It appears from the record that on the day preceding the aforesaid March term of the court, the judge of the court "ordered the clerk of said district court to issue a venire for a petit jury and place the same in the hands of the sheriff of said county of Clark, commanding him to summon a petit jury to serve as such jury during the March term of said Clark county district court; and a jury was so summoned by said sheriff, which sat on the trial of this cause." It is admitted that the term of the district court of Clark county held in March, 1886, was a legal and valid term, and that the court itself was a legal and valid court, and the only invalidity urged or claimed is the supposed invalidity of the organization of the jury. Now as the term was legal and valid, and the court itself legal and valid, and the court one of general and superior jurisdiction, and a court for the trial of causes requiring a jury, it would seem, aside from all statutes, that the court itself would have the inherent power, by order or otherwise, to obtain a good and valid jury. And there is no statute prohibiting the court from procuring a jury where one has not been obtained under the provisions of the statutes. The statutes making provision for selecting, summoning and impaneling juries contain general provisions for this purpose, and also provisions for special cases. For instance, §§ 23 and 26 of chapter 54, of the Compiled Laws of 1879, and §§ 1 and 2 of chapter 117, of the Laws of 1886, make provisions for special cases. Under some of these provisions the court itself has the power to obtain a legal and valid jury, although no jury has been procured under any of the other provisions, and although no jury is in attendance on the court. (The State v. Skinner, 34 Kan. 256 at 258, 267, 268; Trembly v. The State, 20 id. 116, 120.) And the court having such power, it will always be presumed that it has obtained a legal and valid jury, unless the contrary is affirmatively shown; and the contrary was not shown in this case. Also, it will always be presumed that a defendant in a criminal action has waived all mere irregularities in the procuring of a legal and valid jury, unless the contrary is also affirmatively shown; and this was not shown in this case. All the members of the jury were competent to serve. At least no claim has been made that any one of the jurors who tried the case was not competent. No objection was made in the court below to any one of the jurors. Nor was any objection made to the panel. Not even the slightest intimation was given to the court of any desire on the part of the defendant to challenge the array. So far as appears from the record, the defendant was entirely satisfied with every juror and with the entire array. Hence, if any irregularity occurred in the selection, the summoning or the impaneling of the jury, it must be presumed that the defendant waived such irregularity. We think the jury was a legal and valid jury, whether the venire issued on the order of the judge was legal and valid, or not.
It is also claimed by the defendant that "the court below erred in permitting testimony purporting to be that of the defendant taken at a coroner's inquest to be read to the jury on behalf of the state, when defendant did not testify in his own behalf on the trial of this cause." The question whether the court below erred or not in permitting this testimony to be introduced, depends entirely upon the question whether it was voluntarily given before the coroner's inquest or not. It was admitted in evidence under that rule of evidence which permits a party's own admissions or confessions, his own declarations, to be introduced in evidence against him; and if it was voluntarily given before the coroner's inquest no error was committed in receiving it on the trial; but if it was given under duress, if the defendant was compelled by subpena or otherwise to disclose it before the coroner's inquest then of course the court below should not...
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