State v. Kirby , 75 Kan. 825 ( 1907 )

Per Curiam:

Appellant was convicted of an assault and battery upon W. H. MeCamish, and sentenced to be confined in the county jail for a term of nine months and to pay the costs of the prosecution. From this judgment he appeals.

None of the assignments of error requires extended comment. The matter referred to by the prosecutor when stating what he expected to prove was not collateral but was proper to show motive. The statement was made in good faith, and the objection to it was properly overruled.

The evidence offered under the statement having fallen short, and having been stricken out for the very reason it did not reach the defendant, could not have prejudiced him.

The court had the right, upon its own initiative, to recall the jury and give them further instructions. Cautionary instructions of the kind given are proper. The one complained of is sound, and there is nothing in the record to show that its effect was otherwise than wholesome.

The answer of the court to the inquiry of a juror did not contain any independent statement of a rule of law, but in effect merely referred the jury to the instructions already given.

The judgment is affirmed.