State v. Patterson

52 Kan. 335

• Court: Supreme Court of Kansas
• Decided: July 15, 1893
• Status: Published

Opinion

The opinion of the court was delivered by

Horton, C. J.:

I. It is insisted that the record in this case does not show that the defendant was furnished with a copy of the information, or waived it at any time before going to trial; also, that the record fails to show the defendant was ever arraigned or pleaded to the information, and, therefore, that there was a mistrial, and the judgment should be reversed. Upon the hearing, a diminution of the record was suggested, and, with the consent of this court, the transcript has been amended so as to speak the truth. According to the transcript, as corrected, it appears that, on April 22, 1893, the defendant was personally present in court and required to plead to the information. It was read to him, and he pleaded not guilty. This was before the trial. The record, therefore, shows his arraignment and plea. The record also shows that the jury was duly impaneled and sworn, and that the defendant was personally present in the court during the trial. An affidavit has been filed with the transcript showing, as a matter of fact, that the clerk of the court made out and delivered to the counsel of defendant a copy of the information ■on the 6th day of April, 1893, several days before the trial. If, however, the affidavit be disregarded because not properly incorporated in the transcript, it is sufficient answer about the nondelivery of a copy of the information to call attention to § 158 of criminal procedure, which provides: “If the defendant pleads and goes to trial, without objecting for the want of a copy of the information, the neglect of the duty by the clerk will not be sufficient ground to set aside the verdict.” (The State v. Cassady, 12 Kas. 550.) In The State v. Wilson, 42 Kas. 587, the record did not show that the defendant had been arraigned, or that he had announced himself ready for trial. In that case, also, the defendant made a motion to be discharged from custody because of the want of the service of a copy of the information, and because he had not been arraigned and required to plead.

II. It is next insisted that the information did not state facts constituting a public offense; that it was not direct and certain as regards the offense and parties attempted to be charged; and that the offense attempted to be charged was not clearly set forth in plain and concise language, and without repetition. Objection was taken to the information, not only by motions to quash and in arrest of judgment, but also by objecting to the introduction of any evidence that any person or persons, other than the defendant or Standeford, were guilty of the homicide complained of, and also by requesting instructions to the same effect. Upon the trial, it was shown by the state that at the time Peter Hinton was killed John Boucher held the pistol in his own hand and fired the shot which caused his death. The real contention is, that neither ■the evidence introduced upon the part of the state, nor the instructions given to the jury, were applicable to or embraced the offense charged. It is urged that the guilt of Boucher should have been averred, and the act of the defendant in counseling him to commit the homicide should have been stated in the information. Counsel overlook or do not give sufficient force to §421 of the crimes act, § 115 of the criminal code, and the decisions of this and other courts upon these sections. The first section reads:

“Every person who shall be a principal in the second degree in the commission of any felony, or who shall be an accessory to any murder or other felony, before the fact, shall, upon conviction, be adjudged guilty of the offense in the same degree, .and be punished in the same manner, as herein prescribed with respect to the principal in the first degree.”

The second section provides: “Any person who counsels, aids or abets in the commission of any offense may be charged, tried and convicted in the same manner as if he were a principal.” In The State v. Cassady, supra, in referring to these sections, this court said:

“The intention of the legislature in these sections is obvious. It authorizes the charging of an accessory before the fact as principal. . . . Section 10 of the bill of rights does not attempt to require that the particular connection an accused has with the offense charged shall be stated in the indictment or information. It does not attempt to indicate how much of detail or specification is essential to a criminal pleading. . . . The legislature has not attempted to say that the crime committed shall not be charged; that the ‘nature and cause of the accusation’ shall not be stated, but has simply declared what acts shall render one guilty of this crime. The one acting, the one present aiding and abetting, and the one absent counseling, aiding, and abetting, are declared to be equally and alike guilty. Nor is this the introduction of a new or harsh rule. At common law, if two engaged in the commission of an ordinary felony, and in furtherance of it one committed murder, both were declared equally guilty thereof. The common consent to do wrong rendered each responsible for all acts done in furtherance of the wrongful purpose. Under our statutes, one indicted for an offense consisting of different degrees may be convicted of the degree charged, or of any degree inferior thereto, or of an attempt to commit the offense. (Crim. Code, § 121.)”

Bishop, in his work on Criminal Procedure (vol. 2, 3d ed.. § 3) says: “ So A. and B., if present, aiding and abetting, may be convicted, though C., a person not named in the indictment, committed the act.”

In The State v. Jones, 7 Nev. 408, Lewis, C. J., observed

“that the jury learned from the charge that it is always essential there be a principal in the crime, although under the statute of this state it is not necessary that he is convicted of the crime, or that the accessories be indicted as such; for it is expressly provided that they may be indicted and tried as principals.”

In Spies v. The People, 122 Ill. 1, the court stated:

“Under our statute and the construction given to it by the decisions of this court, the man who, ‘not being present, aiding, abetting, or assisting, hath advised, encouraged, aided or abetted the perpetration of the crime/ may be considered as the principal, and may be punished as the principal. The indictment need not say anything about his having aided and abetted either a known or an unknown principal. It may simply charge him with having committed the murder as principal. Then if, upon the trial, the proof shows that he aided, abetted, assisted, advised or encouraged the perpetration of the crime, the charge that he committed it as principal is established against him. It would make no difference whether the proof showed that he so aided and abetted, etc., a known principal or an unknown principal.”

The State v. Mosley, 31 Kas. 355; The State v. Brown, 21 id. 50; People v. Outeveras, 48 Cal. 19; Baxter v. The People, 3 Gilm. 381; Dempsey v. The People, 47 Ill. 323; The State v. Orrick, 17 S. W. Rep. (Mo.) 176; The State v. Fredericks, 85 Mo. 150; The State v. Anderson, 89 id. 333; The State v. Rucker, 93 id. 89.

III. It is also insisted that the trial court erred in admitting the statements of Boucher, made to Kinney, after the killing was over — not in the presence of the "defendant — “that he had killed Hinton,” and “you take that gun and give it to Patterson.” Under the authority of The State v. Bogue, ante, p. 79, it may be conceded that the first statement was inadmissible. The question, therefore, arises, was it material or prejudicial? The record is full of evidence that Boucher killed Hinton. One of the witnesses for the defendant stated that “Boucher killed Hinton,” and the defendant offered the record showing that Boucher not only killed Hinton, but that he was convicted therefor of manslaughter in the third degree, and sentenced to the penitentiary for a term of three years. The same witness who testified about the statements of Boucher also testified that the defendant said in his presence, in substance, that Boucher made Hinton throw up his hands, stuck the gun up to him, and shot him. After the evidence had all been introduced, there was no controversy over the fact that Boucher killed Hinton. The only dispute was, under what circumstances the homicide occurred — whether it was justifiable, excusable, or felonious. We think, therefore, the statement referred to was neither material nor prejudicial. The statement of Boucher to Kinney, “to take the gun and give it to Patterson,” was not a narrative of a past event; it was merely a direction for Kinney to give the gun he had to Patterson. It was not a statement that it was Patterson’s gun, or that Patterson gave him the gun. Kinney testified “that after this statement of Boucher to him, he walked into the office of the Gladstone hotel, went up to the counter, and gave the gun to Black, the clerk.” If there was nothing else in the record but this statement to indicate that Patterson furnished the gun for Boucher, his connection with that part of the transaction would be slight — surely not enough to support a verdict of guilty, or any conviction; but the same witness who testified to the direction of Boucher also testified that the defendant suggested to Boucher, before he left the joint, “ Why do n’t you kill the son of a bitch ? ” (meaning Hinton,) and when Boucher said “I haven’t any gun,” the defendant said “I will go and get you a gun,” and went out of the joint at once; that after the homicide was committed, and when several of the parties were in the joint, the defendant said: “Where’s my gun? What did Boucher do with my gun?” And when told that it had been given to Black, the clerk at the office, he went out and came back with the same gun, as the witness thought; took the cartridges out; those that were empty, he threw into the slop bucket; those that were full, he put in his pants pocket; then he put the gun away, and detailed, as before stated, how Boucher shot Hinton with the gun. Even if the direction of Boucher be regarded as inadmissible, the other evidence of the witness testifying to this,, if given credit, connected the defendant so strongly and directly with furnishing the gun to Boucher, that such mere direction was not important in the case — not sufficient to-influence a verdict.

IV. It is further insisted, that the defendant, if an accessory before the fact, could not be visited with a higher grade of punishment than his principal. John Boucher was convicted of manslaughter in the third degree only, and sentenced at hard labor in the penitentiary of the state for three yeais. In The State v. Bogue, ante, p. 79, it was said:

“It may be conceded that, at common law, the acquittal of the principal acquitted the accessory also, and that the conviction of the principal must precede or accompany that of one charged as an accessory. Section 115 of the criminal code provides: ‘Any person who counsels, aids or abets in the commission of any offense may be charged, tried and convicted in the same manner as if he were principal.’ The evident purpose of the legislature of our own and other states where similar statutes have been enacted was to do away with those subtle distinctions of the common law between principals in the first and second degree and accessories before the fact, and to permit the trial of participants in the crime independently of each other, so that each should suffer punishment for his own guilt, without being dependent on the result of the prosecutions against others. . . . We think a guilty accessory may be punished, even though the principal escape.”

In Goins v. The State, 46 Ohio St. 467, it was observed :

“If, as has been held, this crime is a substantive one, for which the offender may be tried and convicted before the conviction of the principal, it necessarily follows that he should be convicted of that degree of the crime which the evidence aga'mst him establishes; and if this may be done before, no reason is apparent why it should not be done after, the trial of the principal; and the circumstance that the principal offender, through failure of proof or caprice of the jury, had been convicted of a lower grade, or even acquitted, before the aider or abetter was put on trial, cannot affect the question of the guilt or innocence of the latter. The degree of the guilt of the aider and abetter, as well as the question whether he is guilty at all, is to be determined solely by the evidence in the case.”

But counsel for defendant claim that the decisions referred to apply to an aider, an abetter or principal in the second degree only, and not to an accessory before the fact. By the statute of this state, the distinction between a principal in the second degree and an accessory before the fact has been abolished, and all participants in a crime are declared equally and alike guilty, without regard to their proximity thereto or the extent of their participation therein. (The State v. Cassady, supra.) In this connection, it is proper to remark that, in the case of The State v. Mosley, 31 Kas. 355, it was rightly decided that “ Upon the trial of an accessory before the fact, the record of the conviction of the principal is proof prima facie of that fact; but this is not conclusive, and other evidence of the commission of the crime by the principal is admissible.” But this court probably went too far in that case, in saying that the statements of the principal, Mrs. Martin, were admissible against Mosley, if they were made in his absence. At common law, such statements of a principal were admissible to charge an accessory, but under our statute and the authority of The State v. Bogue, ante, p. 79, such declarations, not made in the presence of the accessory, are not receivable.

V. It is still further insisted, that the trial court committed error in “permitting the case to go to the jury upon the evidence of Kinney, without saying to them that they should not convict upon the uncorroborated evidence of an accomplice;” also, that the court “abused its discretion in not instructing the jury that they ought not to find the defendant guilty upon the statements of Kinney alone.” The court gave, among others, the following instructions:

“ If you should find from all the evidence that any witness who has testified in this action has heretofore been guilty of perjury in testifying falsely concerning the same matters about which he has testified in this case,- then, and in that event, you ought to carefully and minutely consider all his evidence in this case, and should carefully compare all his statements in this case together with all the other evidence in this case; and if, after having so done, you are unable to say whether such witness has or has not testified truthfully in this case concerning the matters about which he has testified, then, and in that event, you ought to discard and disbelieve the evidence of such witness entirely. But, if you are satisfied that any such witness has testified truthfully as to the matter in this case, then you should not arbitrarily disregard his testimony, notwithstanding you may believe that he had heretofore made a different statement. In determining what weight should be given to the testimony of any witness, the jury may take into consideration the appearance of such witness on the witness stand while giving his testimony, the interest of such witness, if any, in the result of the case, and any other fact or circumstance proven in the case, which, in the opinion of the jury, throws any light upon the question of the weight which should be given to the testimony of such witness. You are the exclusive judges of the evidence, the facts proven, and the credibility of the witnesses; and it is for you, and you alone, to say, from the evidence, whether the defendant is guilty, or not; and if you believe any witness has sworn falsely to any material fact in this case, then you are at liberty to disregard the whole of his testimony. If there be any reasonable doubt whether the guilt of the defendant has been satisfactorily shown by the evidence, he should be acquitted. If any one of the jurors, after having considered all the evidence in the case, and after having consulted with his fellow-jurymen, should entertain any reasonable doubt of the guilt of the defendant, then the jury cannot find the defendant guilty. The defendant is presumed to be innocent, until the contrary is proven, and, where there is a reasonable doubt whether his guilt is satisfactorily shown, he must be acquitted.”

Counsel say that the verdict in the case, resting upon the evidence of a witness like Kinney, whose character is so atrocious, whose motive for lying is so apparent, and who confesses his own perjury with regard to the same transaction on two former occasions, is not properly supported, and that the liberty of no one should be cast away in such a manner. The degree of credit which ought to be given to the testimony of an accomplice is a matter exclusively within the province of the jury. Without doubt, great caution in weighing such testimony is dictated by prudence and good reason. (1 Greenl. Ev., § 380.) In The State v. Adams, 20 Kas. 327, it was stated that “the unaided testimony of an accomplice is legally sufficient to sustain a verdict.” In Collins v. People, 98 Ill. 584, it was observed:

“ In many, probably in most, cases, the evidence of an accomplice, uncorroborated in material matters, will not satisfy the honest judgment beyond a reasonable doubt; and then it is clearly insufficient to authorize a verdict of guilty. But there may frequently occur other cases, where, from all the circumstances, the honst judgment will be as thoroughly satisfied from the evidence of the accomplice of the guilt of the defendant as it is possible it could be satisfied from human testimony; and, in such case, it would be an outrage upon the administration of justice to acquit.”

In Lindsay v. People, 63 N. Y. 143, it was said:

“Although it is not usual to suffer a conviction upon the wholly uncorroborated evidence of an accomplice, and juries are advised not to convict without a confirmation as to the material facts, still, if the, jury are fully convinced of the truth of the statements of a witness thus situated, they may convict upon his testimony alone. It is the duty of the trial judge, if requested so to do, to advise the jury not to convict upon the testimony of an accomplice alone, unless his testimony is corroborated by other evidence in some material point in issue.”

See, also, The State v. Kellerman, 14 Kas. 135; The State v. Adams, supra.

In this' case, Kinney was the accomplice or a partieeps erirriinis only after the fact, by agreeing to and subsequently swearing to fabricated statements at the coroner’s inquest and the preliminary examination of Boucher. It is not shown that he was present, aiding or abetting the homicide, or that he procured, counseled or commanded it. He was, at most, an accessory after the fact. The trial court was not requested, by the defendant or his counsel, to advise the jury not to convict the defendant upon the uncorroborated evidence of an accomplice. Instructions one, two, three, and nine, which were requested and refused, referred to any impeached witness and to any witness who had heretofore made different statements under oath. The court said to the jury,

“You are the exclusive judges of the evidence, the facts proven, and the credibility of the witnesses; and it is for you, and you alone, to say, from the evidence, whether the defendant is guilty or not; and if you believe any witness has sworn falsely to any material fact in this case, then you are at liberty to disregard the whole of his testimony.”

The court also cautioned the jury that, if any witness had been guilty of perjury in testifying previously concerning the facts at issue, they ought to carefully and minutely consider such evidence, and carefully compare the statements testified to with ail the other evidence, and if, having done so, they were unable to say whether the witness had or had not testified truthfully, then they ought to discard and disbelieve the evidence of such witness entirely. In view of the special instructions requested, and the instructions actually given, the trial court seems to have advised the jury to discard and disbelieve the witness Kinney, if not thoroughly satisfied that his evidence upon the trial was truthful, and that they were at liberty to disregard his whole testimony, if they believed he had sworn falsely to any material fact.

YI. Again, it is insisted that, upon the evidence of the state, the defendant was guilty of murder in the first degree; therefore, that the trial court committed grievous error in instructing the jury they might find him guilty of murder in the second degree, or of manslaughter in the third or fourth degrees. The State v. Whitaker, 35 Kas. 731, and other similar cases of this court, are cited. It was proper for the trial court to give instructions upon the theory of the defendant, as well as that of the state. The defendant himself and other witnesses testified that when Hinton left the joint, after the fight there, he said to Boucher “that he would kill him; ” that soon afterward the defendant met Hinton upon the street with his knife, and that Hinton said “ he would be revenged upon Boucher; that he would never sleep until he killed him;” and that soon afterward there was a fuss or quarrel on the street between Boucher and Hinton, in which Hinton was killed. All of this, and other evidence introduced upon the part of the defendant, tended to show that Boucher was justified in killing Hinton, or was guilty of some offense less than murder. This also tended to show that Patterson was either not guilty, or, if guilty at all, guilty in a less degree than charged.

VIL As to the complaint of the instruction about counseling, aiding or abetting the commission of the offense charged, see The State v. Shenkle, 36 Kas. 45.

VIII. Another claim is that, if all of the other alleged errors in the record were unavailing, the verdict should be set aside, and the judgment reversed, on account of the closing argument for the state. Four specific objections were made during the argument, and a general objection at the close. Two of the objections concerned wholly immaterial matters not prejudicial. One statement complained of w'as: “ They would not let us prove that the officers of the law were after one of the witnesses for the same crime, whose testimony they introduced.” The second was: “That the commissioners of Cowley county, in their public capacity, made an order employing John Pollock and W. P. Hackney to prosecute the case, and did it in the obedience to public sentiment; ” yet those statements, according to the affidavits on file, were partly made in answer to remarks of counsel for the defendant. The third objection made was sustained by the court. After this objection was sustained, counsel said: “I will take that back, and strike it all out.” At the time the fourth objection was made, counsel was commenting upon the fact that the defendant, although having lived in Arkansas City for 23 years, had introduced no witness to testify to his good character. The court sustained the objection to these remarks, and thereupon the counsel said, “I withdraw them.” But see The State v. Yordi, 30 Kas. 224. In the general objection no particular sentence or specific part of the argument was indicated, but the court was asked “to caution and admonish the jury not® to be misled by the intemperate and inflammatory speech of the counsel who closed for the state, nor to the statements of that counsel out of the record, or to any of the incompetent statements that have been made in this case.” The court, injreply, said to the jury:

“So far as any question of intemperate speech made to close the argument here, the court had no just criticism to make; however, if, in your judgment, the counsel closing this case has made any remarks, or said anything, that is out of the record, then, and in that event, the court tells you not to permit such statements to come before you in any way. Of course, you will try this case according to the law and testimony alone.”

The final objection to the argument, at the close of the case, was too general. This court has decided several times, that even if the statements of counsel are improper, if no sufficient objection is made at the time, error will not lie. (The State v. Wilgus, 32 Kas. 126; The State v. Nusbaum, ante, p. 52, [34 Pac. Rep. 407,] and cases cited; The State v. Comstock, 20 id. 654; The State v. Mortimer, 20 id. 93; and The State v. McCool, 34 id. 613.)

IX. Lastly, it is insisted that a new trial should be had, on account of newly-discovered evidence. A part of this evidence was cumulative only; the other parts were answéred or contradicted by counter affidavits. There was no error on the part of the court in refusing the new trial for this reason. (The State v. Rohrer, 34 Kas. 427; The State v. McCool, supra; The State v. Smith, 35 Kas. 618; Douglass v. Anthony, 45 id. 439.)

In this case, unlike some criminal cases that have been before us for review, there was direct and positive testimony before the jury to sustain the conviction of the defendant, if that evidence was believed. The jury were the exclusive judges of the evidence, and of the credibility of the witnesses.

We have before us the verdict of the jury, and also the approval of the trial judge of that verdict. We cannot interfere. There are other matters discussed in the briefs, but we do not think it necessary to comment thereon.

The judgment will be affirmed.

All the Justices-concurring.