State v. Aeby
| Decision Date | 11 May 1963 |
| Docket Number | No. 43088,43088 |
| Citation | 381 P.2d 356,191 Kan. 333 |
| Parties | STATE of Kansas, Appellee, v. Benny AEBY, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court.
1. Matters specified as error, in order to be reviewable, must be within the purview of those matters contained in the notice of appeal, and when an appellant seeks to have this court review alleged trial errors, he must appeal from the order overruling his motion for a new trial, and, in addition, must specify such ruling as error in conformity with Rule No. 5 of this court relating to appellate procedure. (188 Kan. p. XXVII; [G.S.1949, 60-3826].)
2. Trial errors include, but are not limited to, rulings of the district court on dilatory pleas, orders setting the case for trial, denial of additional time to plead, the admission or exclusion of evidence, the sufficiency of evidence to support the judgment, erroneous instructions to the jury, misconduct of court or counsel, and general miscellaneous irregularities of procedure and practice for which new trials may be granted on a timely motion.
3. Where a defendant appeals from the judgment and sentence of his conviction and attempts to raise a matter relating to the admission or exclusion of evidence, which is a trial error, such matter may be reviewed only where the appeal is from the order overruling the motion for a new trial and such ruling is specified as error in conformity with Rule No. 5 of this court, and the fact that a claimed federal right is presented does not preclude this court from refusing to decide the federal question and applying adequate and independent wellsettled state rules relating to appellate procedure.
Thomas C. Boone, Hays, argued the cause, and was on the briefs for appellant.
Edgar M. Miner, Hays, argued the cause, and Gregory J. Herrman, County Atty., Hays, and William Ferguson, Atty. Gen., Topeka, were with him on the briefs for appellee.
The defendant was convicted on two counts of burglary in the third degree (G.S.1949, 21-521) and one count of petty larceny (G.S.1961 Supp. 21-535), and was sentenced to confinement in the state penitentiary as an habitual criminal (G.S.1949, 21-107a).
During the presentation of the state's case in chief, the defendant objected to exhibits and articles of property obtained by police officers when they searched his apartment without a search warrant at the time he was arrested for the crimes for which he was subsequently convicted. When the objection to the evidence was made, the district court excused the jury and the trial proceeded on the question of the reasonableness of the search and seizure of the items and property offered in evidence. After a full hearing the district court found,
'The court has considered all of the evidence introduced in the absence of the jury by both sides, and the court finds generally that all legal and constitutional objections to the introduction and admission of evidence of the searches and articles found, should be overruled and so orders.'
Thereafter, the jury was recalled and all the evidence presented to the district court was reoffered and heard by the jury.
As indicated above, a verdict of guilty was returned on each of the three counts charged in the information. The defendant filed a motion for a new trial containing five grounds all of which had to do with alleged errors and irregularities during the trial, including the evidence offered by the state which it was contended had been obtained illegally in an unlawful search and seizure in violation of the defendant's rights under the Fourteenth Amendment to the Constitution of the United States. The motion for a new trial was overruled and the defendant was sentenced as an habitual criminal, hence, this appeal.
The appellant's notice of appeal and motion for record on appeal were abstracted in the joint abstract filed by the state and the appellant, and his notice of appeal recited that he gave 'timely notice of intention to appeal from the judgment entered in this court in said numbered case.' (Emphasis supplied.) Thus, the defendant has appealed only from the conviction and judgment rendered in the case, and his appeal does not include the order overruling his motion for a new trial.
In view of the foregoing, we are required to apply the long-established and well-settled rules of appellate procedure that matters specified as error, in order to be reviewable, must be within the purview of those matters contained in the notice of appeal, and when an appellant seeks to have this court review alleged trial errors he must appeal from the order overruling his motion for a new trial and in addition must specify such ruling as error in conformity with Rule No. 5 relating to appellate procedure which provides that 'The appellant's abstract shall include a specification of the errors complained of, separately set forth and numbered.' (188 Kan. p. XXVII; [G.S.1949, 60-3826].) A few of our many cases applying the rule to appellate review of criminal cases are State v. Shehi, 125 Kan. 110, 263 P. 787; State v. Owen, 161 Kan. 361, 168 P.2d 917; State v. Turner, 183 Kan. 496, 328 P.2d 733; State v. Hamilton, 185 Kan. 101, 340 P.2d 390, 361 U.S. 920, 80 S.Ct. 265, 4 L.Ed.2d 188; State v. Combs, 186 Kan. 247, 350 P.2d 129; State v. Bednark, 187 Kan. 236, 356 P.2d 848; State v. Armstrong, 188 Kan. 567, 363 P.2d 520, and State v. Mize, 191 Kan. 129, 379 P.2d 317.
Failure to comply with either or both of such requirements precludes appellate review of alleged trial errors which, it has been held, include rulings of the district court on dilatory pleas, orders setting the case for trial, denial of additional time to plead, the admission or exclusion of evidence, the sufficiency of evidence to support the judgment, erroneous instructions to the jury, misconduct of court or counsel, and general miscellaneous irregularities of procedure and practice for which new trials may be granted on a timely motion. (Jeffers v. Jeffers, 181 Kan. 515, 313 P.2d 233, and cases cited; Marshall v. Bailey, 183 Kan. 310, 327 P.2d 1034; Andrews v. Hein, 183 Kan. 751, 332 P.2d 278; Shelton v. Simpson, 184 Kan. 270, 336 P.2d 159.) Here the appellant neither appealed from the order overruling his motion for a new trial nor did he separately specify such ruling as error. In State v. Burnett, 189 Kan. 31, 367 P.2d 67, it was said:
'While a defendant may appeal to this court as a matter of right from any judgment against him by complying with the adequate and easily compliedwith method of appeal (G.S.1949, 62-1701, 62-1724), the statute does not contemplate that he is entitled to a review of every matter involved in his trial and sentence without complying with well-established rules of procedure relating to appellate review (State v. Hamilton, 185 Kan. 101, 103, 340 P.2d 390; Brown v. Allen, 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469, 503.)' (189 Kan. l. c. 33, 367 P.2d l. c. p. 69.)
Rule No. 5 has been printed repeatedly in various volumes of the Kansas reports and it is...
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