State v. Woodman

• Decision Date: 08 December 1928
• Docket Number: 28,376
• Citation: 272 P. 132,127 Kan. 166
• Parties: THE STATE OF KANSAS, Appellee, v. A. F. WOODMAN, Appellant
• Court: Kansas Supreme Court

272 P. 132

127 Kan. 166

THE STATE OF KANSAS, Appellee, v. A. F. WOODMAN, Appellant

No. 28,376

Supreme Court of Kansas

December 8, 1928

Decided July, 1928.

Appeal from Riley district court; FRED R. SMITH, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. CRIMINAL LAW -- Review of Irregularities -- Necessity for Presentation to Trial Court. Rule followed that reversible error cannot be predicated upon irregularities transpiring in the district court of which no complaint was made at the time and which were not urged on the trial court's attention in support of a motion for a new trial.

2. HOMICIDE -- Felonious Assault and Wounding--Right to Arrest and Retake Stolen Property. An objection to an instruction defining the right of a private person to use force to retake his property, if stolen, and to arrest the parties who had stolen it, considered and not sustained.

3. SAME -- Felonious Assault and Wounding -- Sufficiency of Evidence. In a prosecution for a felonious assaulting and wounding of the prosecuting witness, the state's evidence considered and held sufficient to sustain the verdict.

4. CRIMINAL LAW -- Double Sentence for Second Felony -- Validity of Statute. Where, after conviction on a charge of felony record evidence was submitted and not withstood showing conclusively that defendant had theretofore been convicted of a felony, a sentence imposing penal servitude for double the usual length of time prescribed by the crimes act was proper; and the objections to the statute of 1927 authorizing such increased penalty and to its application to the instant case are not sustained.

Ira C. Snyder and C. I. Moyer, Jr., both of Manhattan, for the appellant.

William A. Smith, attorney-general, Roland Boynton, assistant attorney-general, and Walter Reed Gage, county attorney, for the appellee.

OPINION

DAWSON, J.:

The defendant, A. F. Woodman, was convicted of feloniously wounding one Robert Reynolds by shooting him in the back as he sped away in an automobile from defendant's filling station on the night of October 9, 1927.

The state's theory was that the crime was wantonly perpetrated. Woodman's defense was that he had been annoyed by prowlers; that Reynolds and two other young men and the wife of one of them came to his filling station at midnight and stole some of his property--tires, jack and water can--and were taking these articles away in their automobile; that he called on them to halt, first firing his revolving pistol in the air and then aimed at their rear tires; that his purpose in shooting was only to stop the car and cause the arrest of the persons in it; and that he had no intention to do bodily harm to either of them.

Jury trial, conviction, and double the usual sentence under authority of chapter 191 of the Laws of 1927.

Defendant appeals, first assigning prejudicial error on the familiar manner in which the county attorney addressed the prosecuting witness who had been carried into court on a stretcher, thus:

[COUNTY ATTORNEY]: "Q. Am I talking too fast for you, Bob, old man? A. No. . . .

"Q. After you got shot, Bob, how long was it before you can remember? A. Sunday night. . . .

"Q. Have you been in the hospital ever since, Bob? A. Yes.

"Q. What were you trying to steal out there, Bob? A. Nothing. . . .

"Q. Now, Old Man, can you give this jury and the court any reason at all, Bob, why Mr. Woodman should have shot you or at you, or any members of your party that night? . . .

[Objection sustained.] . . .

[COUNTY ATTORNEY]: "That's all, Bob."

Counsel for appellant also assures us that this undue familiarity of addressing the witness by the county attorney was aggravated by "certain motions and acts, such as stroking the witness Robert Reynolds upon the head, forehead and arm as he propounded the questions to the witness, and that this was all done for effect and for the purpose of appealing to the jury and prejudicing them against the appellant."

A diligent examination of the record fails to reveal any objection made in the trial court concerning these familiarities of the county attorney. Time and again this court has declared that it is useless to assign errors on matters which were suffered to transpire without complaint in the trial court, and that a reversal of judgment will not be decreed on errors which the trial court itself was not asked to correct. (Brown v. Oil Co., 114 Kan. 482, 218 P. 998; State v. Bell, 121 Kan. 866, 250 P. 281.)

The same rule of appellate review bars consideration of the alleged motions and actions of the county attorney directed toward the prosecuting witness. The record cannot be supplemented by statements of fact volunteered by counsel for a litigant. The alleged misconduct of the county attorney should have been challenged peremptorily when it occurred, and a record should have been made of the matter then and there; and in any event the facts should have been put in record form by affidavits and urged on the trial court's attention in support of defendant's motion for a new trial. The want of these timely requisites prevents a review of this assignment of error.

The next error urged relates to an instruction of the trial court touching defendant's right to recover his property and to arrest the parties in the automobile as it sped away from defendant's filling station if the jury should find that Reynolds and his associates, or either of them, had actually stolen defendant's property. The instruction told the jury that defendant had the lawful right to retake his property if so stolen, and to arrest Reynolds and his associates without a warrant, and--

"You are further instructed in this connection that where a felony has been recently committed by any person or persons, and a private citizen has reasonable cause to suspect that such person or persons are guilty of its commission, the law authorizes the private citizen, while acting in good faith, to arrest the person or persons who have committed the felony in order to prevent their escape; and in so doing he may use such means as appear necessary under the circumstances to effect the arrest, and in such case if the person or persons whose arrest is attempted have reasonable grounds for believing that it is the actual intention of the one attempting the arrest and knows his motive for so doing, he would not be justified under the law in resisting arrest. But in making such arrest or in attempting to do so, he must do so in a temperate and proper manner, without the use of deadly weapons in such a way as to endanger the life of or do great bodily injury to the person or persons sought to be arrested."

Defendant criticizes the concluding sentence of this instruction, stressing his own version of the facts--that "defendant saw his property being carried away in a car," and that in firing the revolver shots at the rear tires of the automobile he was not using more force than necessary to recapture his property and prevent the escape of the thieves. One trouble with this argument is that the jury did not believe defendant's property had been stolen by the persons in the automobile, but apparently did believe that defendant shot in the direction of the moving automobile without excuse and in wanton disregard for the safety of its passengers. The instruction was quite favorable to defendant. In Garnier v. Squires, 62 Kan. 321, 325, 62 P. 1005, it was said:

"A private person arrests without a warrant at his peril and it will be a false imprisonment unless it can be shown that a felony has actually been committed. (Wakely v. Hart, 6 Binn. [Penn.] 316; Beckwith v. Philby, 6 Barn. & Cres. 635; Holley v. Mix, 3 Wend. [N.Y.] 351; Allen v. Wright, 8 Car & P. 522; Burns v. Erben, 40 N.Y. 463; Hawley v. Butler, 54 Barb. [N.Y.] 490; 12 A. & E. Encycl. of L., 2d ed., 740.)"

See, also, State v. Mowry, 37 Kan. 369, 15 P. 282; State v. Vandruff, 125 Kan. 496, 502, 264 P. 1060; Crim. Proc. T. No. 1, A. L. I. sections 19 (2) and 22, and pp. 145, 146, 155-159.

Defendant's third assignment of error is that the verdict was contrary to the evidence. That part of the evidence which the jury chose to believe tended to show that, altogether without cause or excuse, defendant willfully placed five revolver bullets in the back of the moving automobile and that two of these penetrated the back and hip of the prosecuting witness, causing wounds and injuries from which he will never recover. A doctor called as a witness testified that the injured man would probably never walk, and probably would not live a year. Under such circumstances defendant would certainly have been guilty of manslaughter, mayhap murder, if death had ensued (R. S. 21-435), and the error assigned on the insufficiency of the evidence cannot be sustained.

Two other errors relate to the imposition of a penitentiary sentence of double the usual length of time prescribed by law for such punishment.

After defendant's motion for a new trial had been presented and overruled, the county attorney produced record evidence that defendant had theretofore been convicted of the felony of persistent violation of the prohibitory law. The trial court made a finding of fact to that effect, and at the allocution defendant offered no valid excuse why sentence under the act of 1927 should not be imposed.

The pertinent paragraphs of the crimes act read:

"21-107. If any person convicted of any offense punishable by confinement and hard labor, or of any attempt to commit an offense which if perpetrated would be punishable by confinement and hard labor, shall be discharged either upon pardon or upon compliance with the sentence, and shall subsequently be convicted of any offense committed after such pardon or discharge, he shall be punished as...