State v. Bohan

The opinion of the court was delivered by

Horton, C. J.:

The appellant was convicted of murder in the second degree, at the February term for 1876 of the district court of Saline county, and now appeals to this court. This is the second time the case has been brought here. (The State v. Bohan, 15 Kas. 407.)

1ion.“settle?"

BsetHeafcabte 2’5^totueteno? to be waived. At the outset, objections are presented to this court by the counsel of the state to the record on file; and the first question in the case is, as to what portion of the record, if any, is legally before this court, and what alleged matters of error can this court properly consider. The term of the court at which the appellant was tried commenced on February 28th, and was extended and kept open until the commencement of the next term thereafter, to-wit, May 29th. Three separate bills of exceptions were signed and filed in the court below, viz., on March 3d, on April 28th, and on June 5th. The bills of exceptions filed March 3d, and April 28th, during the term of the court, were within time, and all matters therein stated can be fully considered. These relate to the action of the court overruling a motion for a change of venue on account of the alleged prejudice of the judge, and the denial of an application of the appellant to set aside the jurors summoned at the term of the court, because of alleged irregularity in the manner the same were drawn. The alleged errors set forth in the third bill of exceptions, filed on the 5th of June, that day being after the commencement of the May term of the court, and after the February term had expired by law, are not legally here for our determination. “A bill of exceptions filed out of term, is no part of the record.” Brown v. Rhodes, 1 Kas. 359; Lownsberry v. Rakestraw, 14 Kas. 151, 154. The defective record has been attempted to be cured in three ways, viz, by filing an agreement, from the late attorney-general that the bills of exceptions were properly signed and filed, and that the case might be heard upon the merits; by bringing to this court a copy of an agreed statement showing that the bills of exceptions were presented to the court below on May 27th, for allowance; and by an alleged nuno pro tuno order of the court of June 5th. None of these attempted curative acts are effective for the purposes intended. This court has decided that the time for reducing exceptions to writing beyond the trial term cannot be extended by a judge, even when consent of counsel has been given, and that we cannot take cognizance of a case not brought here by regular process of law, nor unless in conformity with the statutes regulating the manner of bringing cases into this court. Gallaher v. Southwood, 1 Kas. 143; Cohen v. Trowbridge, 6 Kas. 385; Hodgden v. Comm’rs of Ellsworth Co., 10 Kas. 637. If counsel could waive in this court manifest irregularities as to the mode and. time of signing and filing , ,,, „ . , . n , bills or exceptions, the preparation and approval of bills of exceptions beyond term-time would become allowable, and the provisions of the statute in this respect be disregarded. As the time for reducing exceptions to writing cannot be extended beyond the trial term, so a bill of exceptions, which has been allowed and filed beyond the trial term, and at the regular term next after that of the trial, cannot be considered here, although counsel formally agree to waive the disregard of the law as to the making of the said bills of exceptions. The copy of the agreed statement, showing that the bills of exceptions were presented in due time to the court, and the argument thereon founded, that this court could by mandamus compel its being duly signed, even after the adjournment of the trial term, and hence the signing and filing of said bill of exceptions on June 5th should be held sufficient, does not help the case of the appellant. An agreed statement cannot be made to supply the place of a bill of exceptions taken in accordance with the statute. In this case, the agreed statement is neither filed, nor signed; and does not purport to be any part of the journal entry. It is no part of the record, and must be totally disregarded. Patee v. Parkinson, 18 Kas. 465; Young v. The State, 23 Ohio St. 577. In the absence of this agreed statement, there is nothing in the record to show that the bill of exceptions No. 3 was ever presented to the court prior to the 5th of June.

Xunc pro tunc order, when void. The so-called order nune pro tune, made June 5th, and during the May term of the court, does not relieve the difhculty. If it was intended by such order to have ^-jjg except¡ons which were presented and signed and filed at the regular term next after that of the trial refiled, and marked as if presented, allowed, and filed at the preceding term, such an order was a nullity. The grounds upon which said order was made simply show that application was made therefor by the attorney of the appellant, and the order does not purport to supply any matter omitted by the clerk from the records of the February term. Nor does it appear that the clerk had made a different entry from that which was ordered. The State v. Jeffors, 64 Mo. 376. Indeed, we cannot tell with certainty that such order was intended to apply to bill of exceptions No. 3. It is certain that the record does not show that said bill was presented at any other time than June 5th. Under what circumstances a bill of exceptions may, by order of a court at a subsequent term, be made available by a nune pro tune order, it is not necessary in this case to determine, because the parties, as the record is presented, are concluded by the record that the said bill of exceptions No. 3 was not presented, signed, or filed during the trial term. The so-called nune pro tuno order makes this manifest. We return to an examination of the bills of exceptions which were properly filed.

4. change of dfce^f judge, I. The first supposed error was the refusal of the court to remove the case to the district court of some county in a different district, on the application and testimony presented by the appellant, when the cause was called for hearjng, that the judge of the court was prejudiced. The testimony relied upon to sustain the motion was the affidavits of the appellant, and of his counsel, Messrs. Fenlon, Mohler, and Spivey, the records of a previous trial of this case, and a reversal by the supreme court of the judgment in the case, and also, the proceedings before the said judge under which the appellant was required to give bail in the sum of $15,000 "for his appearance to answer the charge contained in the information. We do not think the showing made was sufficient to compel a change of venue. That the testimony hereinafter set forth may be fully understood, we should perhaps state, that at the November term of the court for 1874 the appellant was convicted of the same crime for which he is now under sentence, namely, the murder of Thomas Anderson. Then he was sentenced by the court below to imprisonment in the penitentiary for twenty years. At the July term of this court for 1875, this judgment was reversed, because of the error of the district court admitting the so-called dying declarations of one William N. Anderson, when the homcide of Thomas Anderson was the subject of the charge and investigation. The same judge presided at both trials in the district court. The affidavit of defendant Bohan states: “That the rulings of the court (at the first trial) were adverse; that the court lectured him at the time of sentence, and said defendant was guilty of the offense of which he had been convicted; that he had committed a willful, deliberate and malicious murder; that there was no excuse or justification; that while there' might be for killing William N. Anderson, there was none for killing Thomas; that if the verdict had been in the first degree, he would have sustained it.” The affidavit of Thos. P. Fenlon, Esq., states, “That without charging any unfairness upon said judge, he believes he is so prejudiced,” etc. J. G. Mohler, Esq., simply swears to the affidavit of Thos. P. Fenlon, on belief. J. G. Spivey, Esq., states, “That whilst he does not charge or intimate any unfairness or unworthy motive, yet he firmly believes the judge has, by his very situation, become so prejudiced,” etc.; and “that he regarded the language of the judge at time of sentence, harsh and severe; and that the judge expressed convictions of appellant’s guilt in the second degree, and also stated, as he recollects, that if the jury had found him guilty in the first degree he would have sustained it.”

In answer to the affidavits and testimony of the appellant, on the motion, the trial judge filed a statement, which contains among other things, the following: “I am quite sure I did not use the language imputed to me in the petition and affidavit of defendant, to-wit,‘ that he had committed a willful, deliberate and malicious murder.’ I discussed the testimony somewhat in pronouncing judgment, and said there was some that would tend to show deliberation' and premeditation, (quoting it,) and that this was the charge and the theory of the prosecution, and that the facts were such, as shown by the testimony, on these points, ‘that if the jury had returned a verdict of murder in the first degree I should not have disturbed it’—coming nearer to the language used in the affidavit of John G. Spivey. In deciding upon the question of bail, I did not discuss the case, or express or intimate any opinion on it in any way, either of my own, or as to what the testimony had shown. And in pronouncing judgment, I did not in any way express my own opinion on the case, but only discussed the testimony adduced on the trial. The affidavits do not show any statements or acts of mine out of court, but as far as facts are stated therein (eliminating conclusions of law, and fact, and opinions, which have but little weight,) they show only an expression or words gathered now and then from the whole proceeding of the trial and judgment, at which I am compelled to preside and act; and when these words are quoted they are disjointed from their legitimate connection, which leaves their construction, meaning, and weight not fully understood.”

From the testimony we cannot say that the evidence shows any prejudice toward the appellant by the trial judge; much less can we say that prejudice dearly appears. The law provides, that “when the defendant appears for judgment he must be informed by the court of the verdict of the jury, and asked whether he has any legal cause to show why judgment should not be pronounced against him;” and in answer to the inquiry last stated, the defendant often replies that he is innocent, and has been wrongfully convicted. In answer, the trial judge frequently comments upon the trial, the manner the party has been defended, and the evidence introduced in the case, and frequently remarks very similar to those stated by the trial judge to have been spoken by him on the occasion of the first sentence’ of the appellant, are made use of. We are aware of no authorities which go to the extent that statements, thus made, amount to prejudice or ill-will. To thus hold in this case, would lead to absurd consequences. No authority is cited by counsel for appellant to sustain the proposition that these comments upon the evidence are sufficient to establish prejudice.

Neither can the adverse ruling of the trial judge, on the first trial, which was afterward corrected in this court, be held to authorize a change of venue. Errors of judgment, do not amount to prejudice or ill-will on the part of a judge. The theory of our judicial system is, that courts of nisi prius may commit errors of judgment in matter of law, which are to be reviewed by courts of last resort; but such errors have never been held equivalent to prejudice. Burk v. Mayall, 10 Minn. 287. Counsel for appellant contend however, that the cause for a change of venue, specified in section 173 of the criminal code (Gen. Stat. 847,) is properly presented in the manner required by section 177 of same code, and that according to the doctrine of Smith v. The State, 1 Kas. 365, the showing by the defendant on his application was all that was necessary. The argument is not good. The decision cited construes section 155 of the criminal code of 1862, (Comp. Laws, 259,) among others; and said section relating to change of venue did not require the defendant to prove to the .satisfaction of the court the facts set forth in the application for the removal, but merely to support the truth of the allegations by the affidavit of the de^ndant, or some credible disinterested person. The law has since been changed. Section 177 of our present criminal code, (Gen. Stat. 1868, p. 848,) which answers to section 155 of the criminal code of 1862, prescribes that, “In the petition for a change of venue, the applicant shall set forth the facts upon which the application is made, and the truth of the allegations in the petition shall be made to appear by affidavits to the satisfaction of the court.” Sections 174 to 177, criminal code of 1868, apply to cases where the application is based upon the prejudice of the inhabitants. City of Emporia v. Volmer, 12 Kas. 622. In concluding this branch of the case we quote from the opinion of Mr. Justice Brewer in the case of the City of Emporia v. Volmer, supra: “If it were to be determined by simply the affidavit of the defendant, there would be almost numberless changes of venue. Every defendant closely pressed, would ■ seek delay in this manner. A change of venue is a wrong to the public, unless the necessities of justice to the defendant require it. It works delay. It causes expense. It endangers a prosecution. A defendant is easily persuaded of the prejudice of the judge. Adverse rulings convince him of the fact. It seems to us therefore, that this is the true rule: that such facts and circumstances must be proved, by affidavits, or other extrinsic testimony, as clearly show that there exists a prejudice on the part of the judge toward the defendant; and unless this prejudice thus clearly appears, a reviewing court will sustain an overruling of the application, on the ground that the judge must have been personally conscious of the falsity or non-existence of the grounds alleged. It is not sufficient that a prima facie case only be shown, such a case as would require the sustaining of a challenge to a juror. It must be strong enough to overthrow the presumption in favor of the trial judge’s integrity, and of the clearness of his perceptions.”

5 Drawing ence’otfeputysheriff. II. The second error alleged in the exceptions filed in time is, that the court erred in not discharging or setting aside the jurors ordered and drawn on the second day of March 1876. The complaint is, that one L. M. Tuttle, a deputy-sheriff, attended at the county clerk’s office to witness the drawing at the date named, in place of the sheriff of the county, or the under-sheriff of the county, as provided by sec. 11, Gen. Stat. 1868, p. 535. The alleged error is extremely technical; but as the law was fully complied with, we see no material error. By sections 10 and 11, (Gen. Stat. 535,) it will be seen that two justices of the peace of the county, and the sheriff in person, or by his under-sheriff, shall be notified by the county clerk to be present and witness the drawing, and if any two of them attend, the clerk shall proceed to draw the jury. The record shows that E. L. Norton and R. H. Bishop, two justices of the peace of said Saline county, did attend, as required by law, in answer to the notifications, and on the day of the drawing signed a sufficient certificate to the effect that on the 2d of March 1876 the jury were drawn. It is not shown that either the sheriff or his under-sheriff, attended the drawing. Neither does it appear that the sheriff was not notified; and it is not claimed that any other irregularity occurred except that said deputy-sheriff was present at the drawing, and together with the county clerk and the two justices of the peace signed the certificate of the names of the persons drawn, and the date thereof. The county clerk testified on the motion, that at the drawing of the jurors, he, as county clerk, alone drew the names of the jury from the box, and the other persons, whose names were attached-to the certificate, were present and witnessed the drawing.” As two of the officers required by the law to attend and witness the drawing were present, with the county clerk, and as the law compels the clerk to proceed (when two are present) to draw the jurors, the mere fact that a deputy-sheriff was also in attendance, and afterward signed with the others a certificate of such drawing, in no way renders the drawing void. The court rightfully overruled the motion.

6. Homicide; seif-defense; III. Notwithstanding the invalidity of the bill of exceptions filed on June 5th, and beyond the trial term of the court, we have examined the entire testimony, and record, with care; and we cannot say that the judgment rendered was erroneous. The evidence very strongly sus- , . . , , ° tains the verdict. Much complaint is made concerning the direction of the jury; but a review of all the instructions shows very clearly that the court, upon the question of self-defense, adopted the decisions of this court, and fully instructed the jury, that all the law exacts is, that there shall be a reasonable apprehension of imminent danger, and that of the reasonableness of this apprehension the jury are to be the judges. “There must not only be reasonable ground to believe such a design exists, but the person to execute the design must be accompanied by some attempt to execute it, or the person must at least be in an apparent situation to do so, and so induces a reasonable belief that he intends to do it immediately. Where the justification is based upon recent threats, and circumstances which would tend to lead the defendant to believe that his life was in imminent danger, the threats and circumstances must not only tend to lead to the belief, but they must force the belief upon the mind, and then the belief must be reasonable, and such as reasonable men act on.” The State v. Horne, 9 Kas.19; The State v. Howard, 14 Kas. 173. There are some expressions ■ in the charge of the court, which are copied in the brief of counsel for the appellant, that, detached and isolated, as presented to us, seem proper subjects of criticism. But all of this arises from snatching a single phrase from its proper connections, and giving it a special instead of the general application it had. Taking the context, we find no just ground of complaint. Instructions are to be considered and construed together, as a whole; and if not erroneous when so construed, no one of them will be held to be erroneous. The State v. Dickson, 6 Kas. 209.

Prejnaice of juror. IY. Complaint is also alleged in the so-called bill of exceptions No. 3, that the court erred in overruling the motion and showing for a new trial, because it was alleged that W. S. Warner, one of the jurors, had formed and expressed opinions as to the guilt of the appellant before the trial of the cause, and of which the appellant had no knowledge until after the verdict. This charge was fully and carefully investigated by the trial judge, and mostly upon oral testimony. The juror satisfactorily denied all statements affecting the alleged incompetency. A large number of witnesses were introduced to show that the parties attacking the competency of said Warner as a juror were unworthy of belief, and that their reputations for truth and veracity were bad. Others were called to support the characters of these parties. Under the circumstances, without deciding whether, under our practice, the alleged statements of Warner, if proved, would be a ground for a new trial, when the objection is taken for the first time after the trial, upon affidavits showing disqualification, we are of the opinion we cannot now adjudge the action of the court below erroneous in this respect. The well-settled rule of this court should prevail in this matter, as in others, that where the trial court has had the opportunity of hearing the testimony from the witnesses in person, and of seeing them as they uttered the same, and has thereon rendered a decision, this court will not hold such decision erroneous as to questions of fact, unless it is clearly apparent that the decision or finding is wholly unsupported by evidence.

cleric’s certMregarded. V. Additional error is alleged upon a statement incorporated in the record by the district clerk, to the effect that- the appellant was tried in the court below upon a copy of the information; this ground of error is not well taken. The record does not sustain the allegation. The certificate Of the clerk as to what took place at a trial must be disregarded. The clerk has no such authority. If such was the fact, it should have been properly presented. This claim was not made upon the trial, and this alleged error nowhere appears in any of the numerous motions made in the court below. It is raised in this court in the case for the first time. A reading of all the record would seem to show that the appellant was tried upon the original information filed against him; but the clerk, of his own motion, interpolates in the record his statement that such was not the case. This statement goes for naught. Bills of exceptions are not thus made, and matters of this character cannot thus be brought to this court for review.

Having examined all the causes for which it is claimed that a new trial should be granted, and having found no error in them, the judgment is affirmed-

All the Justices concurring.