State v. Devine

49 Kan. 252

• Court: Supreme Court of Kansas
• Decided: July 15, 1892
• Status: Published

Opinion

The opinion of the court was delivered by

Johnston, J.:

At the April term, 1891, of the district court of Bourbon county, the defendants were convicted of grand larceny, and the punishment imposed was the imprisonment of each at hard labor in the state penitentiary for a term of five years. The only question assigned upon their appeal is the alleged misconduct of the county attorney in the closing argument of the case. The defendants were charged with stealing a quantity of silk, which was found in their possession when arrested. They did not testify in their own behalf, and they claim that the county attorney said to the jury: “Why did these young men not explain to you, gentlemen, the circumstance of their having in their possession the silk?” And they contend that the county attorney referred to the fact that they failed to testify in their own behalf. The county attorney, however, denies using the language attributed to him; and he states that what he did say referred to the fact that they made no explanation of their possession of the stolen silk when they were arrested, and which was found in their possession. The statement, whatever it may have been, is only shown by the affidavits of the contending parties, which were filed upon the motion for a new trial. These affidavits form no part of the record, for the reason that they were not preserved in a bill of exceptions. It has been decided that “affidavits on a motion in the court below, to become a part of the record so as to be reviewable by the supreme court, must be included in the bill of exceptions or the case-made.” (Backus v. Clark, 1 Kas. 303; Altschiel v. Smith, 9 id. 90; McIntosh v. Comm’rs of Crawford Co., 13 id. 177.) The question presented is not properly before us for consideration, and therefore the judgment of the district court will be affirmed.

All the Justices concurring.