State v. Zimmerman

• Decision Date: 01 November 1895
• Docket Number: 310
• Parties: THE STATE OF KANSAS v. C. A. ZIMMERMAN
• Court: Kansas Court of Appeals

42 P. 828

3 Kan.App. 172

THE STATE OF KANSAS v. C. A. ZIMMERMAN

No. 310

Court of Appeals of Kansas, Southern Department, Eastern Division

November 1, 1895

Opinion Filed December 4, 1895.

MEMORANDUM.-- Appeal from Crawford district court; J. S WEST, judge. Defendant, C. A. Zimmerman, was convicted of an assault and battery. He appeals. Reversed. The opinion herein, filed December 4, 1895, states the material facts.

Judgment reversed and cause remanded.

Fuller & Randolph, and J. D. McCleverty, for appellant.

W. H Morris, county attorney, for The State.

COLE J. All the Judges concurring.

OPINION

COLE, J.:

The defendant was convicted in the district court of Crawford county of an assault and battery alleged to have been committed on one Willard Kimball. He appeals to this court upon the ground, principally, tat the trial court permitted the introduction of certain incompetent evidence on the part of the state, over the objection of the defendant, the admission of which was prejudicial to the defendant's rights. The first objection raised by the defendant was to the admission of the details of the assault as related by the prosecuting witness, and the testimony of Doctor Cole with reference to the physical condition of the prosecuting witness shortly after the assault. It appears that the actual assault was committed by two sons of the defendant, and it was not claimed by the state that this defendant participated therein, but it was claimed that he was present and consented thereto, and abetted his sons in the commission thereof. The defendant now claims that the evidence above referred to was incompetent, for the reason that the assault was admitted and that the evidence of the details as well as of the condition of the defendant after the commission thereof could only have a tendency to prejudice the jury against him. This position is not correct. The defendant had entered a plea of not guilty, and the record nowhere discloses that any admission was made that an assault had been committed upon the prosecuting witness. It was therefore incumbent upon the state to prove every material allegation of the complaint, and it was perfectly proper for the court to admit testimony tending to prove the condition of the defendant as showing the gravity of the offense.

The next objection which is urged by the defendant is, that the court permitted the state to introduce upon rebuttal the evidence of John Sweeny and William Getty, tending to prove that the defendant was present, as stated by the prosecuting witness. It is claimed by the defendant that this was evidence in chief and ought not to have been admitted at the time it was, over his objection. The order of proof is to a great extent a matter of discretion with the trial court. In this case, however, these two witnesses were not introduced for the purpose alleged by the defendant. The defendant was a witness in his own behalf, and testified that he had not seen his two sons who committed the assault from some time in the morning until supper time on the day in which the assault was committed, and the testimony of the witness Sweeny and the witness Getty tended to establish the fact that he saw and conversed with the two sons a short time prior to the commission of the assault. The fact that this evidence also tended to prove that defendant was present when the assault was committed could not make it incompetent for the purpose for which it was offered.

The next objection is, that the witness William Cochran was asked...