State v. Finch

Citations

• 71 Kan. 793
• 81 P. 494
• 1905 Kan. LEXIS 233

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Homicide — Election of Counts. ' In a prosecution upon several counts, where an election is proper and necessary upon which of the counts the state will rely for conviction, the appropriate time to make such election is at the close of the testimony in behalf of the state.</p> <p>2. - Withdrawal of Testimony. While the withdrawal of testimony erroneously admitted, coupled with an instruction to the jury to disregard it, will ordinarily cure the error, there may be testimony so material, and of a kind calculated greatly to prejudice the jury, that a withdrawal will not remove the prejudice nor cure the error.</p> <p>3. -Statements of Defendant — Admissibility. The testimony of a witness subsequently prosecuted for manslaughter, taken at a coroner’s inquest in pursuance of a subpoena, where such witness was not at the time under arrest or accused of the crime, and where there is nothing indicating that the testimony was involuntarily given, is admissible against him when he is put upon trial for the commission of the offense.</p> <p>4. -Response to a Subpoena — Not Involuntary. Such testimony is not deemed to be involuntary merely because it was given in response to a subpoena.</p> <p>5. Practice, District Court — Recalling Jury. It is not error for a court to recall a jury after they have deliberated for some time to inquire as to the probability of an agreement upon a verdict, and also whether the failure to agree was caused by a misunderstanding of the instructions or of the evidence, nor to ascertain from the foreman how the jury were divided in point of numbers, without indicating whether they were for or against the defendant.</p>