State v. Berger

Citations

• 87 Kan. 479
• 124 P. 400
• 1912 Kan. LEXIS 176

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Evidence ■— Preliminary Examination — Transcript — Comr petent. Where, in the trial for an alleged felony, a witness is called by the state who has testified about the same facts at the preliminary examination, and the defense produces and offers in evidence a transcript of the court stenographer’s notes taken at the preliminary examination, claiming a material variance, such transcript should usually be admitted in evidence.</p> <p>2. - When Refusal do Admit Not Prejudicial. Where in such case, however, on cross-examination the questions and answers have been read to. the witness, from the transcript, in the presence of the court and jury and the witness has been interrogated in reference thereto and he has admitted, explained or denied the statements therein claimed to be at variance with his testimony in court, no prejudice can result to the defendant from the refusal to allow such transcript to be re-read.</p> <p>■3. Instructions — Alibi — Conspiracy. On the trial of one charged with a felony the defense produced evidence tending to establish an alibi and the state produced evidence tending to prove that shortly prior to the commission of the crime the defendant and others planned and conspired the commission thereof. In such case it was not error for the court, after calling attention to such evidence, to further instruct the jury that if they believed beyond a reasonable doubt that the defendant and others had entered into an agreement or conspiracy to do the criminal acts charged and that some one or more of those participating in the conspiracy did actually commit the acts charged, then it would make no difference whether the defendant was personally present or not; that each such conspiratpr would be equally guilty whether or not he was present at the commission of the criminal act.</p>