State v. Link

125 P. 70, 87 Kan. 738, 1912 Kan. LEXIS 224

Opinion

The opinion of the court was delivered by

Burch, J.:

The defendant was charged with assaulting H. F. Crafton with intent to rob and was convicted and sentenced accordingly. He appeals and assigns error in the giving and refusing of instructions.

The evidence disclosed that Crafton was assaulted by the defendant and a man named Gilliland with the intention alleged. Instructions were asked and refused making it necessary to a conviction that the jury should find that a common purpose to rob existed in the minds of the two assailants, and that the defendant knew of the purpose entertained by Gilliland. The defendant was charged alone as a principal and his guilt or innocence did not depend upon the existence or continuance of a design held in common with Gilliland or on the state of Gilliland’s mind.

Instructions on the subject of circumstantial evidence were asked and refused. The case was not one, however, calling for such instructions. The state produced direct and positive testimony regarding the defendant’s conduct, which was amply sufficient to warrant a verdict of guilty, and the incriminating circumstances surrounding the transaction which were given in evidence were merely corroborative. (The State v. Gereke, 74 Kan. 196, 86 Pac. 160.)

The defendant complains of an instruction to the jury relating to the defense of an alibi because, as he now asserts, the evidence established his presence at the scene of the assault. That being true the instruction was harmless. But the defendant introduced evidence to show that he was at his home some distance away when the assault was made, and he asked an instruction admonishing the jury that it was essential to a conviction that he should have been present at the time and place specified in the information. If, therefore, error was committed it was invited.

The judgment of the district court is affirmed.