State v. Yordi

• Decision Date: 01 July 1883
• Parties: THE STATE OF KANSAS v. JOHN YORDI
• Court: Kansas Supreme Court

2 P. 161

30 Kan. 221

THE STATE OF KANSAS v. JOHN YORDI

Supreme Court of Kansas

July 1, 1883

Appeal from Brown District Court.

INFORMATION for murder, charging John Yordi with the felonious killing of John Byland, in the county of Brown, April 5, 1882. Trial at the January Term, 1883, of the district court. The jury returned a verdict of guilty of murder in the first degree. Judgment accordingly, from which Yordi appeals.

Judgment affirmed.

Lacock & May, for appellant.

W. A Johnston, attorney general, Edwin A. Austin, Thomas J. Hayes county attorney, and W. D. Webb, for The State.

BREWER J. All the Justices concurring.

OPINION

BREWER, J.:

The defendant was convicted in the district court of Brown county of the crime of murder in the first degree, and from such conviction has brought his appeal to this court. His counsel have industriously searched the record for every conceivable matter upon which to hinge a claim of error. Unfortunately for their client, however, many of the questions they raise have been already decided adversely to their claims by this court; and in the others, after a careful examination we see nothing which justifies any interference with the conviction. We shall notice briefly most of the points presented.

I. As to the information: It is claimed that it is defective, in that it does not show a deliberate and premeditated attempt to kill, and also that it fails to show upon what part of the body the alleged mortal wound was given. Neither objection is well taken. It does sufficiently allege a deliberate and premeditated attempt to kill. (Smith v. The State, 1 Kan. 365; The State v. Fooks, 29 Kan. 425.) It is not necessary to locate the wound, otherwise than upon the body. (The State v. Brown, 21 Kan. 38; Sanchez v. The People, 22 N.Y. 147; Real v. The People, 42 N.Y. 270; Jones v. The State, 35 Ind. 122; 2 Wharton on Cr. Law, 7th ed., § 1069.)

II. Two panels of jurors were drawn. A motion to quash each was filed. The first motion was sustained, and the first panel was discharged. The second motion was overruled, and this ruling is alleged for error. The ground for complaint is, that the three days' notice to the sheriff and two justices of the peace of the time of the drawing was not given as required by § 10, ch. 54, Comp. Laws 1879. As a matter of fact, notice was given on January 23d to the sheriff and the two justices to appear on the same day. They did appear, and in their presence the jury was drawn. The ruling of the district court was right. The length of notice is of minor importance; the substantial fact is, that the officers appeared, and in their presence the drawing was made. In Jones v. The State, 1 Kan. 273, it was laid down by this court that "unless a fair construction of the statute shows that the legislature intended compliance with the provision in relation to the manner to be essential to the validity of the proceedings, it is to be regarded as directory." The purpose of the statute is to have the jury drawn in the presence of disinterested witnesses, in order that the county clerk may not favor persons desiring to be jurors, nor either of the parties to any controversy in the courts. The notice to the sheriff and the justices is to enable them to be present. If they are present on a shorter notice than that specified in the statute, the purpose of the legislature is served. The direction is one for the orderly procedure of the officer, and is not intended as an essential to the validity of the proceedings. It is therefore directory, and the proceeding of the county clerk in drawing the panel was not void because of immaterial irregularities which do not affect the substantial rights of the defendant.

III. After the first panel had been set aside, a special venire was asked by the defendant. The court in filling out this venire entered the names of some of the jurors who were in the array that had been quashed. We see no error in this. The objection to the first array ran not to the qualifications of the jurors, but to the manner of their selection. They were still competent to serve when brought into the jury box in any legal manner.

Again, it is objected that the court erred in refusing a continuance. It is not insisted that any legal ground for such continuance was shown, but it is claimed that the defendant had been in jail from October 6, 1882, up to the time of trial, on the 29th of January, 1883; that he had no counsel and no means to employ any, and was a stranger to our language, laws, ways, and customs, and therefore his counsel assigned by the court had had no time to prepare for the trial of his case, and their appeal for a continuance should have been granted. The record fails to fully bear out this claim of facts. It does not appear that the counsel were assigned by the court, or that they had not been actually employed since the time of the arrest, and making all possible preparation for the trial. It cannot be said that the discretion of the court was abused in this matter of continuance.

Again, so far as the objection to the recalling of the witness Bender, the record fails to show any order excluding witnesses, and therefore the objection made by counsel falls to the ground. As to the confessions of the defendant, they were unquestionably competent. (The State v. Reddick, 7 Kan. 143; The State v. Ingram, 16 Kan. 14.)

Again error is alleged in refusing two instructions asked by defendant--the fourth and seventh. The fourth was, "That the evidence does not warrant a verdict of murder in the first degree." The evidence we think did warrant such a verdict, and therefore the court properly refused the instruction. As to the seventh instruction, with respect to insanity, we think the court in its charge fully and correctly stated the law, and therefore there was...