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46 Kan. 310

State v. Probasco

Supreme Court of Kansas

Decided January 15, 1891

Supreme Court of Kansas · decided 1891-01-15

<p>1. Ceiminal Law • — Defendant as Witness. A defendant who voluntarily becomes a witness in his own behalf is subject to the same rules as any other witness, and may be asked by the state, on cross-examination, if he had not been convicted of larceny at the previous term of the same court in which he was being tried.</p> <p>2. Instbuotions — No Exceptions. Error cannot be predicated upon instructions given, but not excepted to at the time.</p> <p>3. ---Objection to Evidence. An objection to evidence, to be available, should be made and excepted to when it is introduced.</p>

Good law ✅— No negative treatment on recordhow we know

Decided 1891-01-15

How this case has been cited

Cited by 11 later decisions — most recently March 1965

11 state decisions

4018911900191019201930194019501960decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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¶1Opinion by

Green, C.:

¶2The appellant Frank Handy was convicted, with one Jake Probaseo, at the September term, 1890, of the district court of Cowley county, of grand larceny, *311and was sentenced to imprisonment in the penitentiary for three years. He appeals to this court, and asks a reversal of the judgment and sentence, upon a number of grounds:

¶3I. It is claimed that, during the cross-examination of the appellant, the State was permitted, against his objection, to ask the following question: “As a matter of fact, at the last term of this court, you were convicted of grand larceny, were you not?” which was answered: “Yes, sir; I pleaded guilty here to larceny last court;” and that this was error. The claim of the appellant is not well founded. This court has said, where a defendant in a criminal case takes the witness stand to testify in his own behalf, he assumes the character of a witness and is entitled to the same privileges, and subject to the same tests, and to be contradicted, discredited, or impeached, the same as any other witness. (The State v. Pfefferle, 36 Kas. 90, and authorities there cited.) As stated in the opinion, these authorities are to the effect that, for the purpose of impairing his credibility, a witness may be cross-examined as to specific facts tending to discredit him as a witness, although such facts are irrelevant and collateral to the main issue. Under the rule thus established, there was no error in the cross-examination of the appellant.

¶4II. Complaint is also made that the trial court erred in its charge to the jury, concerning a conspiracy between the defendants on trial and the admissions of one of the defendants. We cannot consider this error, for the reason that no exception was taken to the giving of the instructions, or any portion of them. This court will not review instructions given by the district court to the jury, unless they are excepted to at the time. (Comm’rs of Allen Co. v. Boyd, 31 Kas. 765; Gafford v. Hall, 39 id. 166; Mercantile Co. v. Fullam, 43 id. 181.) Section 219 of the criminal code provides that exceptions to any decisions of the court may be made in the same manner as provided by law in civil cases.

¶5III. The appellant’s last assignmentof error is, that thecourt permitted the state to ask the defendant Probasco, If Handy did not have a sister upon whom he [Probasco] was waiting, *312and for that reason he was attempting to shield Handy. No objection was made to the question, and no exception taken at the time. An objection, to be available, must run to the specific testimony which is objectionable. (The State v. Cole, 22 Kas. 474; Long v. Kasebeer, 28 id. 240.)

¶6In this case, no objection was made to the question, and no exception taken at the time to the answer: hence, the error cannot be considered.

¶7It is recommended that the judgment be affirmed.

¶8By the Court: It is so ordered.

All the Justices concurring.
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