State v. Lintner

¶1(dissenting): I have difficulty finding sufficient evidence in this case to sustain the verdict; but I shall pass that point without reviewing the evidence, for another reason in my judgment requires reversal. Evidence was received from 'several witnesses to whom appellant sold or attempted to sell shares of stock of the bank, as to representations he made to them. This evidence was competent only for the purpose of showing motive, etc., and the court should have so limited it. (See State v. Robinson, 125 Kan. 365, 263 Pac. 1081, and allied cases.) The record does not disclose that was done at any time. Counsel for appellant contend the court was orally requested to so instruct the jury! The record does not show thé request, and attorneys for the state who present the case here did not participáte in the trial, hence must depend upon the record. While appellant’s counsel should have seen that a reóord was made of the' request, it was the duty of the court to give the instruction without a request. The statute (RV S. 62-1447) provides the trial 'judge in charging the jury “must state'to them all matters of law which,áre' *511necessary for their information in giving their verdict.” I know of no “matter of law” more necessary for the information of the jury than the limited purpose for which evidence is received of offenses other than the one charged in the information. Such evidence is dangerous, at the best; it should be received with caution, and its sole purpose should be made clear to the jury when it is received, and our statute requires the court to inform the jury of its purpose by an instruction. This was not done. The lack of such instruction cannot be said to be without prejudice, especially in a case such as we have here when the evidence taken at its best is barely sufficient to sustain the verdict.