State v. Potter

16 Kan. 80

• Court: Supreme Court of Kansas
• Decided: January 15, 1876
• Status: Published

Opinion

The opinion of the court was delivered by

Valentine, J.:

This was a criminal action for murder in the second degree. The prosecution was instituted in Atchison county, and was removed therefrom on change of venue to Leavenworth county, where the defendant was tried, convicted and sentenced to ten years’ imprisonment in the penitentiary. The defendant now appeals to this court. This is the second time that this case has been in this court. (The State v. Potter, 13 Kas. 414.)

The first supposed error complained of by the defendant is the removal of the cause from Atchison county to Leavenworth county. The record upon this subject shows among other things the following proceedings had in the district court of Atchison county, to-wit:

“Upon application of the defendant, by his counsel Horton, Waggener, and Cochran in open court, it was ordered by said court, that the defendant, Isaac Potter, be granted a change of venue for his trial herein to the criminal court of Leavenworth county, it being within the knowledge of this court that prejudice against him exists which would prevent his having a fair trial, in said county of Atchison; there also having been two trials of this same offense, convictions in both cases. The application for removal having been made by defendant in open court, thereupon the court on its own motion, and for the reason aforesaid, and within his knowledge, does grant the change of venue in said. case; and the clerk will forthwith prepare a full transcript of the cause and forward the same to the clerk of the criminal court of Leavenworth county.”

i. change of venue in criminai oases.jurisdiction.change from one district to another It will be seen from the foregoing that the defendant did not only fail to make any objection to the change of venue, but that the change was actually made upon his application, and at his request. After said change of venue was granted the district court of Leavenworth county became the successor of the criminal court of Leavenworth county: (Laws of 1875, page 125;) and this cause was then taken by statute to said district court. The case was there regularly called for trial, the defendant and his counsel being present. The defendant did not then raise any question as to the jurisdiction of the court, but on the contrary moved for a continuance of the case until the next term of the court, and filed affidavits in support of his motion. The state then agreed that the affidavits should be read in evidence, on the trial, as the depositions of the alleged absent witnesses; and the case was not continued. A jury was then impanneled. The defendant then “challenged the array of jurors, and each and every one of them, for the reason that the same did not constitute a constitutional jury, and were not a jury of the county or district where the said offense was alleged to have been committed.” But again the defendant failed to raise any question as to the jurisdiction of the court. The state then introduced its testimony. , The defendant objected to the same, and to different parts thereof, for various reasons, among which was the following: “that the said court had no jurisdiction of the person of the said defendant, or the subject-matter of said case.” This was the first time that the question of jurisdiction was raised. “But [even then] no objection was made or pointed out to said court as to any irregularity in the transfer of said case from the said county of Atchison to this [Leavenworth district] court, nor was the atten- « . n _ , , tion oi said court called to any irregularities therein at said time,” or at any other time, before the verdict was rendered, or even before a motion for a new trial was overruled. The first time that any question as to any irregularity was raised in taking said change of venue was by the defendant on a motion in arrest of judgment. It would seem that the defendant chose to experiment upon the chances for an acquittal, and if convicted then to experiment upon the chances for a new trial, before calling the attention of the court below to any irregularity in taking the change of venue. Now, if the taking of the change of venue were wholly void, then the defendant would have been safe in making such experiments; for if the taking of said change of venue had been void, then the district couru of Leavenworth county would not have obtained any jurisdiction thereby to try the cause; and if the district court did not obtain any jurisdiction of the cause, then the defendant could have raised the question of jurisdiction at any time in that court, or he could even have waited and then raise the question for the first time in this court. But if the taking ■ of said change of venue were not wholly void, but merely irregular or voidable, then it would have been necessary for the defendant to raise any question as to the irregularity in taking the change at the earliest convenient opportunity. Now we do not think that the taking of said change of venue was wholly void, although it must be confessed that it was very irregular. But the irregularity was against the state, and not against the defendant. The order changing the venue should have been set aside on the motion of the state, if the state had asked for the same to be done. It might possibly have been set aside on the motion of the defendant, if he had asked that it should be done at any time before he made his motion for a continuance, or possibly at any time before the trial of the case was actually commenced. But it would have been beyond all reason for the court to have set aside the order granting the change after a trial had been completed, and the defendant found guilty. Even a defendant in a criminal case cannot trifle with the court in that manner. He cannot procure a change of venue irregularly, and then, when he is convicted, have the conviction set aside because of the irregularity. Or at least, he cannot have this done unless the order granting the change of venue is so entirely irregular as to be wholly void. In a case like the one we are now considering, the proceedings of the court granting the change should be construed liberally, so as not to hold the granting of the change void. That the district court of Atchison county had the power, on a proper application, and proper showing, to change the venue to Leavenworth county, there can be no question. The district court can change the venue in a criminal case on the application of the defendant in either of the following cases: “First, Where the judge of the court in which the cause is pending is near of kin to the defendant by blood or marriage. Second, Where the offense charged is alleged to have been committed against the person or property of such judge, or some person near of kin to him. Third, Where the judge is in anywise interested or prejudiced, or shall have been of counsel in the cause.” (Criminal Code, §173.) Fourth, “Whenever it shall appear, * * * that the inhabitants of the entire district áre so prejudiced against the defendant that a fair trial cannot be had therein.” (Criminal Code, § 175.) And, “Whenever it shall be within the knowledge of a court or judge that facts exist which would entitle a defendant to the removal of any criminal cause, . , ,. , , , , , on his application, such judge or court may make an order for such removal, without any [formal] application by the party for that purpose.” (Criminal Code, §178.) In the present case the defendant made the application for the removal, but it was informal, and even insufficient under the statutes. It was informal, because not in writing: (Criminal Code, §177;) and it was insufficient, because the facts upon which it was founded did not entitle the defendant to have the cause removed to another district. (Criminal Code, §§174, 175.) Atchison county is in the second judicial district, and Leavenworth county is in the first. The district court of Atchison county therefore erred in granting the defendant’s application. But the error was against the state, and not against the defendant. The error was in his favor. And therefore he has no right to complain. But while thé order granting the change was erroneous, it was not void. It was upon a subject over which the court had complete jurisdiction, and although erroneous is"nevertheless valid until set aside or reversed by competent authority. The state has never asked to have it set aside or reversed; and the defendant cannot legally ask to have it so done, as the order was made on his application.

5 Right of trial coim?7o?faistrict; wavs-ei. The defendant seems to claim that he could not waive his constitutional right to be tried “by an impartial jury of the county or district in which the offense is alleged to have been committed.” This is a mistake, rjgj^ mere]y a personal privilege, bestowed upon the accused, which he can waive or insist upon at his option. The constitution provides that, “In all prosecutions, the accused shall be allowed to * * * have * * * a speedy public trial by an impartial jury of the county or district in which the offense is alleged to have been committed.” (Const., Bill of Rights, § 10.) But the constitution nowhere provides that the accused shall in all cases, and under all circumstances, be tried by such a jury, and be tried in the county or district in which the offense is alleged to have been committed; nor does it anywhere provide that the accused shall not have the power to waive his said right or privilege. Said provision of the constitution does not pretend to confer power upon any tribunal, person, or body of persons. It is really only a limitation of the power elsewhere conferred by the constitution upon the government of the state to punish crime in the manner thought best by the lawmaking power of the state. The right to try, to convict, and to punish persons accused of crime, is conferred by other provisions of the constitution. And except for this provision, a law might be passed to try a defendant in a criminal action, even against Ms will, before any jury, and in any part of the state. But with this provision, a defendant in a criminal action can be tried by any other jury, and out of the county and district where the offense is alleged to have been committed, only with his consent. It is too late now to suppose that any person of full age and sound mind cannot waive a merely personal right, or personal privilege, although such person may be a defendant in a criminal action, and although such right or privilege may be conferred upon him by the constitution. Of course, there are many rights conferred upon individuals from considerations of public policy which are not merely personal privileges, and which cannot be waived. But they are such rights as public policy requires to be exercised, and from the waiver of which the best interests of the public would be likely to suffer. They are conferred upon individuals for the benefit of the public, and not merely for the benefit of the individual. But such rights may be conferred by statute as well as by the constitution. We do not suppose that any one will claim that any question of public policy can enter in so as to affect the question we are now considering.

6 presence of heamg of motion. It is also claimed by the defendant, that whenever a court grants a change of venue in a criminal case the defendant must be present in the court in person; and that in the present case the defendant was not present jn the court in person when said change of venue was granted. Now, it may certainly be questioned whether it is necessary for a defendant to be personally present in such a case. But even if it were necessary, we would presume in favor of the regularity and validity of the proceedings of the court below, where there is nothing to show the contrary, that the defendant was personally present in the court when said change of venue was granted. . The language of the order itself, liberally interpreted, would lead to such a conclusion.

77. Mistake in title of action, The defendant also claims that the order granting the change of venue is void, because at the head of the order, where it is entitled, it reads “Information for 7 manslaughter,” instead of “Information for murder in the second degree.” There can be no question that the order was made in this case, and the mere clerical mistake of the clerk in writing “manslaughter,” instead of “murder in the second degree,” cannot invalidate the order.

8. order for ^ prisoner. The defendant also seems to make a point upon the ground that the district court of Atchison county did not make any order, in accordance with §186 of the criminal code, for the removal of the defendant to the jail of Leavenworth county. Now, as the defendant was personally present at the trial of his case in Leavenworth county, and has not shown that any inconvenience was caused by a want of said order, or that he ever asked for or desired any such order, we think that no substantial right of his was prejudicially affected by a want of such order. We suppose the failure to make the order was wholly immaterial.

9. Age and size of deceased. The defendant claims that, “ It was improper for the court to admit evidence as to the age, size, and strength of the deceased,” and refers us to pages 25, 27 and 37 of 7 . ° ; £¡le pgcord. The only evidence found there, objected to, is evidence showing that the deceased was a man about sixty years of age, and about five feet and six or seven inches high. We see nothing very improper in this.

10. corrupt wit-of jury!0Tince The defendant also claims that the court erred in instructing the jury that, “If any witness has willfully testified falsely as to any material fact in the case, then the jury should disregard all the testimony of such witness.” This instruction was erroneous. (Shellabarger v. Nafus, 15 Kas. 547.) Even where a witness has testified willfully corruptly and falsely, to a material fact in a case, still the question as to whether the jury should disregard the whole of his testimony should be left entirely with the jury themselves. But the defendant did not object or except .to the giving of said instruction; and hence he waived any error that may have been committed by the court in giving it. It may have been given for his benefit.

The defendant also claims that the court erred in refusing to give the 23d instruction asked for by the defendant, which instruction reads as follows:

“The jury are instructed that, unless they find from the evidence that in the altercation at Brack’s corner George Potter was aided, counseled, or abetted by Isaac Potter in what he did, they cannot take said altercation at Brack’s corner, or any acts, words, or conduct of George Potter into consideration in determining the guilt or innocence of defendant.”

This instruction would have been very misleading and erroneous if given to the jury. The defendant Isaac Potter, and George Potter and Walter Boyle, were in one wagon, and the deceased, Jacob B. Keeley, and John Keeley, a son of the deceased, and Michael Brannon, were in another wagon. All were traveling in the samé direction, Keeley’s wagon behind. Keeley’s wagon overtook Potter’s wagon, and passed it. Afterward, Potter’s wagon came up to Keeley’s wagon at said Brack’s corner. Here George Potter jumped out of Potter’s wagon, picked up a stone about the size of two fists, threw it at Keeley’s wagon, and hit the boy on the back of the head. Brannon testifies that then “George said he was very sorry he had hit the little boy; that he'would not have hit him for ten thousand dollars; that he wanted to kill the old man; that was his intention.” Mr. Keeley, the deceased, was the only “old man” belonging to either party. Now, Isaac Potter was present, and unquestionably saw and heard all that was done and said at Brack’s corner. Shortly afterward the Keeley party passed on. Afterward the Potter party followed and overtook them in Allbright’s lane. Just before overtaking them however, each of the Potters (Isaac and George,) and Boyle, armed themselves, each with a piece of a fence rail, and after overtaking the Keeley party, Isaac Potter, who is now the defendant, did then and there “kill the old man,” Jacob B. Keeley.

The defendant also insists “ that the court erred in refusing to give the 25th instruction asked for by'defendant,” which instruction reads as follows:

“The jury are instructed that under the evidence in this case they cannot convict the defendant of murder in the second degree.”

This instruction was unquestionably rightly refused. There was unquestionably sufficient evidence to prove the offense charged, and to sustain the verdict of the jury. Some of this evidence was however contradicted by other evidence; but we have nothing to do with weighing the contradictory or conflicting evidence introduced. That was for the jury.

i3. Receiving ingverdict!, The defendant also claims that “the court erred in receiving the verdict in the manner it did, over the objections of defendant.” The jury returned the verdict in the following form, to-wit: “We the jury find the defendant guilty as charged.-E. V. Flora, Foreman.” The court suggested that the verdict was informal, and permitted it to be amended so as to read as follows: “We the jury find the defendant guilty of murder in the second degree, as charged in the information.-E. V. Flora, Foreman!” Before the verdict was amended the jury, through their foreman, told the court that it was their intention to find the defendant guilty of murder in the second degree, and after the verdict was amended it was read to the jury, “and the jurors collectively answered that it was their verdict.” The court offered to have the jury polled, but neither party desired it. This was all done in the presence of both the defendant and his counsel. We perceive no error in this.

We have now considered all the questions raised by counsel, and we perceive no error in the rulings of the court below sufficient to authorize a reversal of the judgment below. The case has been very ably presented to us on both sides, and we would refer to the authorities cited in counsel’s briefs, and to the arguments of counsel, for a more elaborate discussion of some of the questions involved in the case than .we have been able to present.

The judgment of the court below must be affirmed.

All the Justices concurring..