State v. Keefe

54 Kan. 197

Opinion

The opinion of the court was delivered by

Allen, J.:

The defendant appeals from a conviction of murder in the second degree. He was charged with having killed George B. Astley, on ¡the 23d day of December, 1893, at Murdock, in Kingmanjcounty. The defendant was a witness in his own behalf. He testified, in substance, that, in company with the deceased}and|others, he was playing cards in Mustoe’s barn. During the^game the deceased offered to bet that he could name three cards in the defendant’s hand. The parties did not bet, however, at first. Afterward the defendant testified to having made a bet to the same effect of $10; that the deceased named the first two cards, but failed on the third; and that the deceased thereupon grabbed the money off the board they were playing on, and kept it. The defendant then claimed that he had not won the money, and asked him to give it back, but this he refused to do. It appears that the defendant and his son Johnnie then drove to their home, about three miles south of Murdock. After supper they hitched a horse to a road cart, and again went to Murdock. As they drove in past the depot, the defendant got out of the cart, and went to the depot. His son Johnnie drove on up the street, and hitched the horse at Furrow’s store. He then went down to the depot, and in company with his father started to go back up the street. After going a few steps they met Astley going toward the depot. Johnnie Keefe went on up the street, and the defendant stopped to talk with Astley. According to the testimony of the defendant, he asked Astley for the money. The two sat down on the platform together, and the defendant offered that, if the deceased would give him half of the money, he could keep the other half. To this he stated that Astley replied, “If you ever ask me for that, I’ll burst your brains out;” that the deceased then stepped back, picked up something, he did not know what, and came toward him with his hand raised; that the defendant then stepped back, pulled out his pistol, and said, “George, don’t come up here; stand back;” that when Astley was within three or four steps of him, he shot. ■Astley then went and knocked on the window of the depot, and then went in at the door, and lay down in the depot, where he soon afterward died. The defendant went and got the horse and cart and drove home.

The first witness called by the state was Johnnie Keefe, who testified concerning what he saw and did on the day of the tragedy. He was cross-examined at length, and on cross-examination testified, among other things, that his father had his pistol in his pocket when he went to town in the afternoon, and appeared to be in good humor at the time he got out of the cart to go to the depot. On reexamination, he testified that, at the time the fatal shot was fired, he was standing in the east end of Furrow’s store; that there were a number of other persons there at the time; that he heard a shot fired. He was then asked:

“ Q,. I ’ll ask you this question now, if, when the shot was fired, and you heard it, if you did n’t understand what that shot meant?”

This question was objected to by the defendant, the objection was overruled,’ and witness answered: “ No, sir.”

“ Q,. I ’ll further ask you if you did n’t state to Mr. Lucas, as soon as you heard that shot fired, in words as follows, in substance: ‘Father has shot George Astley.’ A. No, sir.”

This question was also objected to, and the objection overruled. Afterward, the same witness was again recalled, and asked with reference to a conversation with one Evans, near the hardware store, on the night of the shooting. He was then asked:

“Q. I’ll ask you if you didn’t make this statement to Milt. Evans, in substance, after this question was asked you: ‘Johnnie, don’t you know what your father has done?’ ‘Yes, but the old man is so high tempered I could do nothing with him; I tried to get his revolver, but could not’? A. No, sir.”

This question was also abjected to, and the objection overruled. Lucas and Evans were called as witnesses by the state, and, over the objection and exception of the defendant, testified with reference to these conversations. Lucas was asked: .

“Q,. I’ll ask you the question in this way: I’ll ask you if, at that time, which was the time the shot was fired, if Johnnie Keefe didn’t state to you, in words as follows, to wit: ‘Father has killed George Astley’? A. Yes, sir; he did state that.”

Evans was asked:

“Q. I’ll ask you if he didn’t at that time, in answer to your question, ‘Johnnie, don’t you know what your father has done?’ say: ‘Yes, sir; but the old gent is so high tempered I could do nothing with him. I tried to get his revolver, but could not,’ or words to that effect? A. Yes, sir.”

Three objections are urged against the admission of this testimony: (1) That it was an attempt by the state to impeach its own witness; (2) that the attempted impeachment was by contradicting the testimony of the witness as to matters not relevant to the issue; (3) that it was also used as a means of placing before the jury incompetent testimony, highly prejudicial to the defendant.

1. pVeachmeñt.m’ All of these objections are valid. There is nothing disclosed by the record indicating that the prosecution had been surprised or misled with reference to what the testimony of John Keefe would be. There, is no proposition with reference to the introduction of testimony better established than that a party cannot impeach the general character of his own witness. By offering him as a witness, he asserts that he is worthy of belief. (1 Greenl. Ev., § 442.) In Johnson v. Leggett, 29 Kas. 591, it was said in the syllabus:

“The general rule is, that a party may not impeach his own witness; and while the court may sometimes, when it appears that a party is surprised by the testimony of a witness he has called, permit him to show what testimony he expected from the witness, and what reason he had for such expectations, and thus either directly impeach the witness or counteract any injurious effect which such unexpected testimony may have with the jury, yet this is a privilege which should seldom be exercised — only in extraordinary cases, and when it appears that material injury will otherwise result to the party.”

There was no attempt made in this case to make any showing such as indicated by the rule declared in the case last cited. It is generally said in the authorities that the contradiction of the testimony of a witness is rather for the purpose of relieving the party from the effects of unexpected statements from the mouth of the witness than for the purpose of impeaching his veracity in general; that a party may contradict one of his own witnesses as to a particular statement of fact, which ought not to conclude his rights, but that he may not produce a witness and then attack his character for truthfulness if he fails to testify in accordance with his interests. (The State v. Sorter, 52 Kas. 531.) But the attempted impeachment was by contradicting the statements of the witness concerning matters on which he had no right to testify. Only competent statements relevant to the issue being tried can be contradicted for the purpose of impeachment. (Railroad Co. v. Townsend, 39 Kas. 115; The State v. Ray, ante, p. 160.

2' ftrmurderof defendant's The evidence as to declarations made by Johnnie Keefe, in the absence of his father, out of his sight and hearing, was clearly inadmissible. Nothing can be plainer, or better established in the law of evidence, than that one man shall not be bound by mere declarations of another, in his absence, and with which he is in no manner connected, and has in no manner assented to. No one would contend, for an instant, that it would be competent to prove that any other person standing in Mus-toe’s store at the time of the shot said that the defendant had shot George Astley. But, in this case, after Johnnie Keefe had denied making the statement, a witness was called to prove that he did make it, and the testimony of this witness was used ostensibly for the purpose of impeaching Johnnie Keefe, one of the plaintiff’s own witnesses, but mainly for the purpose of showing the defendant’s guilt. The inference was sought to be drawn from this statement that Johnnie Keefe knew his father was armed when he met George Astley; knew that he intended to force him to return his money, and to kill him if he did not do so. As showing the use, in fact, made of this testimony, a portion of the argument of counsel for the state is incorporated in the record, from which it appears that the prosecuting attorney in his argument said :

“Did Johnnie Keefe know of this intention that was in the old man’s mind? Did he know of the preparation the old man had made to meet Astley? Gentlemen of the jury, I ask you that solemn question, and I want you to consider it well. Johnnie Keeefe meets them, and then goes out. He meets George Astley with his father, and then goes on from that depot; walks up to Furrow’s store and sits down. He can remember the meeting, remember the conversation was pleasant, remember his trip in the street, and the fact that he sat down there, but he cannot remember the exclamation that was made, that ‘Pa has shot George Astley.’ Gentlemen of the jury, do you not doubt that proposition?”

3' declarationséviamcetent Similar use was also made of the statement testified to by Evans, both by the county attorney and by Mr. Wallace, who also assisted in the prosecution. It might be, under some circumstances, that this testimony would be of comparatively little importance; but in this case it was regarded by the state as of very great importance. It was in fact relied on as of the-utmost importance in showing the purposes of the defendant. There were| no eyewitnesses to the tragedy, and the only statement testified to by any witness tending to show a purpose in the mind of the defendant to take life is that of Frank Hardesty, that just as he stepped out of the depot he said “no man could beat him out of his money and live.” Other witnesses who were in the depot at the same time stated that they did not hear any such expression from the defendant. The killing being admitted by the defendant, the real issue in the case was as to whether ^ was purposely and maliciously done, or whether the circumstances were such as to render the defendant’s act either justifiable or constituting an offense of inferior degree. To use these declarations of his son for the purpose of showing his purpose and intent was highly prejudicial; sufficiently so, in our opinion, to require a reversal of the judgment.

The defendant offered to show that the deceased had the reputation of being a violent and dangerous man, but the court excluded the evidence. In view of all of the facts developed on the trial, and especially of the statements of the defendant with reference to his acquaintance with Astley, and that he had never had occasion to fear him, we do not regard the exclusion of this testimony as reversible error. (Wise v. The State, 2 Kas. 419; The State v. Riddle, 20 id. 711.) If, however, on another trial, the evidence fairly raises a doubt as to whether the defendant acted in self-defense, we think the general character of the deceased for ferocity and brutality may be shown. The general rule on this subject is thus stated in Wharton’s Criminal Evidence, § 84:

4‘ character ofdeceased. “ Taking the authorities as a whole, therefore, we may hold that it is admissible for the defendant, having first established that he was assailed by the deceased and in apParer>f danger, to prove that the deceased was a person of ferocity, brutality, vindictiveness, and of excessive strength; such evidence being offered for the purpose of showing, either (1) that the defendant was acting in terror, and hence incapable of that specific malice necessary to constitute murder in the first degree; or (2) that he was in such apparent extremity as to make out a case of self-defense; or (3) that the deceased's purpose in encountering the defendant was deadly. Of course, it is admissible for the defendant, in order to excuse a violent repulsion of an assault, to prove that he was so overmatched in strength that he had, when attacked, no other means of escaping from death or great bodily harm; but such evidence can never be received for the purpose of justifying an attack by the defendant on the deceased."

These propositions appear to us sound, and in accordance with the current of recent authorities. (The State v. Bryant, 55 Mo. 78; The State v. Morey, 36 Pac. Rep. 573.)

5. Cases, followed. The following portion of the twenty-third instruction is subject to criticism: “Under the circumstances surrounding the killing of the deceased, as detailed by the defendant before you, the law required him to use the same cafe, effort and precaution to spare and save the life of the deceased as would have been exercised by an ordinarily prudent man under like circumstances.” The law on this subject has been settled by this court in numerous decisions, which should be followed in charging the jury as to the defendant's right to take life in self-defense. (The State v. Horne, 9 Kas. 120; The State v. Howard, 14 id. 174; The State v. Bohan, 19 id. 55.)

Complaint is also made of the twenty-fourth instruction, which reads as follows:

“The defendant in this case has introduced evidence of his good character as a peaceable and law-abiding citizen, and the character of the evidence adduced passes upon him a very high encomium, and should find much favor with the jury, unless they regard the crime as charged in the information as proven to their satisfaction beyond a reasonable doubt; then the good character furnishes no defense, and can be of no avail to the defendant. The evidence of good character should be considered by the jury in connection with all the other evidence in the case, and given that weight and credit which to you may seem proper and reasonable; but in weighing such evidence, you should also remember that all men, at some time in their lives, have been of good character, and that men of previous good character have been known to commit some of the gravest crimes known to the law.”

6. Sro^f defendfOT^ry?stl0n8 Good character is competent evidence in behalf of a defendant on the trial of a case of this kind. It is to be considered by the jury in determining the guilt or innocence of the accused, and weighed like any other fact. To say that such evidence must be east aside, if from the other evidence alone the jury are convinced of the guilt of the defendant, is in effect a direction to disregard such testimony entirely, for all that a defendant in a criminal cáse ever needs is evidence sufficient to raise a reasonable doubt as to his guilt. In determining whether there is or is not reasonable doubt as to his guilt, the jury must place his previous good character, if shown by the testimony, in the scale, and weigh this along with all other facts and circumstances., The, court should not attempt to separate out testimony as to good character, and in effect instruct the jury that they are to consider such testimony in case the defendant does not need it, and to reject it if he does.

The prelude to the instructions is also complained of. As remarked in the case of The State v. Wells, ante, p. 161, it is generally better to omit extended remarks as to the duty of jurors in enforcing the laws, and discussions as to the effect on public morals of the enforcement or nonenforcement of the law; but we are not prepared to say that any reversible error was committed by the court in this case in that respect. The, judgment is reversed, and a new trial ordered.

All the Justices concurring.