State v. Hamilton, 41434
| Decision Date | 13 June 1959 |
| Docket Number | No. 41434,41434 |
| Citation | 185 Kan. 101,340 P.2d 390 |
| Parties | STATE of Kansas, Appellee, v. Rex HAMILTON, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. In order for the Supreme Court to review alleged trial errors in a criminal prosecution it is required that the defendant appeal from the order overruling his motion for a new trial, and, in addition thereto, such ruling must be specified as error.
2. In an appeal from a conviction, judgment and sentence in a prosecution for burglary and larceny, the record is examined and it is held: Defendant having failed to establish that his rights were in any way prejudicially affected, this court has no alternative than to affirm the judgment of the trial court.
Kenneth H. Foust, Iola, argued the cause, and John O. Foust, Iola, was with him on the briefs for appellant.
Richard L. Ashley, County Atty., and Charles F. Forsyth, Erie, argued the cause, and John Anderson, Jr., Atty. Gen., was with them on the brief for appellee.
Defendant, Rex Hamilton, was convicted of burglary in the second degree and larceny in connection therewith, and has appealed. Specifically, he and two other defendants were charged with breaking and entering in the nighttime a certain building in Erie and stealing 3,100 pounds of pecans stored therein, in violation of G.S.1949, 21-520 and 21-524. Apparently they were granted separate trials for we are told that the trial of one resulted in a hung jury, and that the other defendant has not been tried.
Defendant, Rex Hamilton, appellant here, having twice previously been convicted of a felony, was, under he provisions of the habitual criminal statute (G.S.1949, 21-107a), sentenced to a term of not less than 15 years for the burglary offense and to a like term for the larceny, the sentences to run concurrently.
Following the verdict of guilty defendant filed a motion for a new trial containing five grounds. The motion was overruled, whereupon he perfected this appeal. The notice of appeal states that he appeals from the order overruling his motion for a new trial. His only specifications of error, however, are:
At the time of oral argument counsel for defendant, for the first time, requested permission to amend and enlarge the specifications of error so as to include the order overruling the motion for a new trial. We have considered the request but have concluded that in the interest of orderly procedure on appellate review it came too late and is therefore denied. Dupont v. Lotus Oil Co., 168 Kan. 544, 545, 213 P.2d 975.
In view of the record before us and the specifications of error, there is serious doubt whether there actually is anything before this court for review. The two errors specified are statutory grounds for a new trial in a criminal prosecution (G.S.1949, 62-1603). It has been held repeatedly that in order to obtain a review of alleged trial errors it is required that an appellant appeal from the order overruling his motion for a new trial and, in addition, that such order be specified as error.
In State v. Shehi, 125 Kan. 110, 263 P. 787, it was held:
'Rule followed that claims of trial error not brought to the attention of the district court by motion for new trial, and not brought to the attention of this court by assigning as error denial of the motion for new trial, may not be considered on appeal.' (Syl. 2.)
In State v. Pore, 143 Kan. 344, 55 P.2d 348, it was held:
'Error in the admission of evidence of debatable competency cannot be considered on appeal when matter complained of has not been urged in the court below in a ...
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