
    The State of Kansas v. J. A. Lewis.
    No. 10425.
    1. Continuance — Absence of Witness. The failure to obtain the testimony of an absent witness, however material, does not require the continuance of a cause, unless the party asking the continuance has used due diligence to procure the attendance or obtain the testimony of the witness.
    2. Instructions — fJrror. In charging the jury, it is error for the court to assume the existence of an important fact which is not conceded or established by uncontradicted proof.
    3. Defendant, as Witness. Where a defendant in a criminal prosecution has offered himself as a witness in his own behalf, he may be cross-examined to the same extent as any other witness, and he may also be recalled by the state for further cross-examination, but he cannot be recalled as a witness for the state, and compelled to testify in its favor.
    
      Appeal from Graham District Court.
    
    J. A. Lewis, convicted of larceny, appeals. The facts are stated in the opinion, filed January 11, 1896.
    
      
      G. TU. Jones, II. J. Hanoi, and Z. 0. Tritt, for appellant.
    
      F. B. Dawes, attorney general, and F. D. Turck, county attorney, for The State.
   The opinion of the court was delivered by

Johnston, J.

: J. A. Lewis appeals from a conviction upon a charge of stealing six hogs, and the punishment imposed was imprisonment in the penitentiary for a term of two years. A number of errors are assigned upon rulings made at the trial, but some of them are not of sufficient importance to require notice or comment.

The refusal of a continuance because of an absent witness is strongly urged as a ground of reversal The testimony which it is said the witness would give was undoubtedly material, but we are not convinced that sufficient diligence to obtain it was shown. For several months after his arrest and before the trial the defendant knew that the witness intended to remove to another state to which her husband had preceded her, but no effort was made to take her deposition. He states that she had promised to postpone going until after the trial, but she left the state some time before the trial, and the defendant knew that she went away, as well as the place to which she went, but no steps were taken by him to procure her testimony.

Complaint is also made of the production before the jury of meat found by the sheriff, with the aid of a search-warrant, in the possession of the defendant. There was testimony tending to show that the hogs alleged to have been stolen were driven a short distance from the place where they were kept, when some of them were killed and loaded into a wagon, and that those in search found tracks of the wagon as well as drops of blood on the grass and the ground. The tracks were found to continue until they came to the premises of the defendant, and near his granary and stable blood and other traces of their presence were found. The tracks were followed beyond the defendant’s place for a distance of about two miles. One witness testified that on that day he was at the granary and found it locked, but in looking through a crack he discovered a pile of meat partly covered over in the granary, and that, shortly after the searching party went past the defendant’s place, the defendant and another loaded the meat into a wagon and drove away with it. About a month after the commission of the alleged offense a search-warrant was procured authorizing a search of the defendant’s premises, and at that time the sheriff found some meat which was produced and admitted in evidence. The-testimony was not strong nor very important, but in view of tire other testimony it was competent to give to the jury for what it was worth.

Complaint is made of the following instruction :

“Evidence has been offered for the purpose of showing that meat was seen on the morning after the loss of the hogs, as claimed, at the place of the defendant, J. A. Lewis, and that the same was soon thereafter removed therefrom, and after Joseph Mah'urin and others are claimed to have been there. This evidence you may take into consideration for the purpose of determining whether or not the pork so seen was probably a part of the hogs claimed to have been lost from the premises of the witness Mahurin, as charged.”

There was no testimony to show that the meat alleged to have been seen in the granary of the defendant was pork, and the only witness who testified that he saw the meat in the granary was unable to state from the view he had whether it was beef, pork, or mutton. By this instruction the court, against the evidence of the defendant, assumes that meat was actually seen in the granary, and the error is emphasized by the assumption that that which was seen was pork. The testimony referred to was the most important offered in behalf of the prosecution, and the unwarranted assumption by the court may have had great influence with the jury in determining that the defendant was guilty. At any rate, we are unable to say that no prejudice resulted from the error.

There is also cause to complain of the ruling of the court in compelling Lewis to take the witness-stand and testify in behalf of the state. He had previously testified in his own behalf, and it is contended that the matter on which he was recalled was only a continuation of the evidence given by him when he first took the -witness-stand. The state was entitled to recall him for the purpose of a further cross-examination, but the record does not show this to have been the purpose. The statement is that he was recalled in behalf of the state in rebuttal, and examined in chief by the attorney representing the state. The examination appears to have been extended, too, beyond what would have been a legitimate cross-examination, if he had' been called for that purpose.

Objections were made to other rulings, but none of them are deemed to be material. "For the errors pointed out the judgment must be reversed, and the cause remanded for a new trial.

All the Justices concurring.  