State v. Alcorn

• Decision Date: 10 December 1932
• Docket Number: 30699.
• Citation: 16 P.2d 479,136 Kan. 461
• Parties: STATE v. ALCORN. [*]
• Court: Kansas Supreme Court

16 P.2d 479

136 Kan. 461

STATE v. ALCORN. ^[*]

No. 30699.

Supreme Court of Kansas

December 10, 1932

Syllabus by the Court.

Testimony otherwise competent, is not rendered incompetent because tending to prove commission of independent crime.

In prosecution for grand larceny, testimony disclosing possession of, and drinking of, whisky held competent, where tending to show relation between parties in planning larceny.

In prosecution for grand larceny, alleged newly discovered evidence held insufficient to warrant new trial, where merely cumulative and not such as probably would change result.

1. Testimony, otherwise competent, in a criminal case is not rendered incompetent because it tends to prove the commission of another and independent crime.

2. The claimed newly discovered testimony offered on the motion for a new trial examined, and held insufficient to warrant a new trial.

Appeal from District Court, Sherman County; William B. Ham, Judge.

Orrie L. Alcorn was convicted of grand larceny, and he appeals.

Judgment affirmed.

SLOAN and HARVEY, JJ., dissenting.

Elmer E. Euwer, of Goodland, C. L. Kagey, of Wichita, Leon W Lundblade, of Beloit, and L. M. Kagey, of Wichita, for appellant.

Roland Boynton, Atty. Gen., Thomas E. Stewart, Co. Atty., of Goodland, and J. E. Addington and Howard A. Jones, both of Topeka, for the State.

SLOAN J.

The defendant was convicted of grand larceny, from which conviction he appeals.

The appellant, William Walker, and Barney Huffman, on and prior to September 3, 1930, lived in Goodland. The appellant assisted his father in running a filling station and in operating trucks which were used in hauling live stock and grain for farmers. On the night of September 3, the appellant, William Walker, and Barney Huffman took 200 bushels of wheat belonging to Wilmot Price, and delivered the same at the home of Nels Heavener. It appears that Walker operated a hardware store in Goodland, and was also engaged in farming with Nels Heavener. The taking of the wheat and the value thereof was admitted. Walker and Huffman entered a plea of guilty, and the state relied upon their testimony for a conviction of the appellant. The appellant admitted that he hauled the wheat, contending than he did not know the wheat was being stolen, and was in no way a party to the theft believing that Walker had the right to direct the taking and delivery of the wheat. On cross-examination the appellant said:

"While we were out there I got suspicious the wheat was being stolen. A. Yes, it entered my head that is what was going on.

"Q. Now, if that was true, why didn't you throw the shovel down and quit and say 'Bill, let's quit'? A. It wasn't any business of mine. I was getting paid for hauling it.

"Q. You were getting paid for hauling stolen wheat? A. I didn't know it was stolen wheat.

"Q. But you had that suspicion? A. I expected it was.

"Q. But you testified originally you did have a suspicion that wheat was being stolen? A. Yes, I expected it.

"Q. And you never reported it, or anything, or quit? A. Why no; I went ahead and loaded up my load and brought it where they said to."

The appellant was convicted. The case is properly here for review.

The appellant contends that the court erred in permitting the state to offer improper evidence in its direct testimony. The witness, Walker, testified that he was engaged in the implement business in the city of Goodland, and was in partnership with Nels Heavener in operating a farm some distance from Goodland; that on the afternoon of September 3, 1930, the appellant came to his office, where the following took place: "Mr. Alcorn approached me about 4 or 4:30 in the evening in regard to taking this grain, and he said he talked to Barney Huffman about this, and asked me if I would go out with him and take my truck. I told him I wouldn't at the time, and he stayed up there till 6 or 6:30, and I consented to go out there with him. *** He said he knew where there were several thousand bushels of barley out in the country, and asked if I would go with him and take my truck to steal it. I told him I wouldn't, at the time, and he stayed around there until Barney came. I imagine Barney came about 4:30 or 5 o'clock in the afternoon. He argued with Barney then and we talked it over together, and it wasn't until 6:30 or 7 o'clock I finally decided to go out. My truck was in the country and it came back about 7:30 or 8 o'clock in the evening."

He was cross-examined concerning this conversation, and on redirect examination the following questions were asked and answers given:

"Q. Did he have any whiskey along with him at the time he came up there to see you?

"Mr. Kagey: Now, if the Court please, we object to this for several reasons. In the first place, as not redirect; and in the second place, it would not tend to prove or disprove any facts in this case.

"Mr. Stewart: I think it is direct examination--redirect.

"Mr. Kagey: It is not re-direct.

"The Court: The objection is overruled. You may answer the question.

"A. Yes, sir.

"Q. (By Mr. Stewart.) And did you take a drink with Orrie Alcorn at that time? A. That afternoon.

"Mr. Kagey: We object for the same reason.

"The Court: Same ruling.

"Q. (By Mr. Stewart.) What was your answer? A. Yes, sir.

"Q. (By Mr. Stewart.) What did you do after you had taken a drink or 2 with Mr. Alcorn while he was there? A. I took the drink with him down at Kelly's confectionery. Went back to my office and stayed there until closing time and I went home and ate dinner that night, and I left my hired man there at the office and I came back about 7 o'clock."

The appellant insists that it was error to admit the evidence of another offense. He contends that this does not come within the rule announced and followed by this court that testimony of offenses of a similar nature and character to that charged in the information may, under certain circumstances, be admitted to show inclination, tendency, attitude, intent, and identification of the defendant. State v. Stitz, 111 Kan. 275, 206 P. 910; State v. Hendren, 127 Kan. 497, 274 P. 274; State v. Frizzell, 132 Kan. 261, 295 P. 658; State v. Caton, 134 Kan. 128, 4 P.2d 677. This rule, however, is not applicable to the testimony here under consideration. It appears, according to the theory of the state, that the witness, the appellant, and Huffman met about 4 o'clock on the afternoon of September 3, and planned the crime. In the course of the conversation preparatory to the commission of the crime, the parties indulged in a drink of intoxicating liquors. Huffman testified, without objection, that he drove up to Walker's place of business and that "we went down to Kelly's and had a drink." The drinking was indulged in during the time the parties were planning the offense, and it has been repeatedly held by this court that competent testimony relating to the offense charged is admissible in evidence although it tends to prove the commission of another and independent crime. State v. Baker, 125 Kan. 173, 263 P. 1059, and cases there cited. The evidence objected to was competent. It was proper to show the relation between the parties in planning the crime, and the fact that another crime is proven does not render the evidence incompetent. The objection was properly overruled.

It is next contended that the court erred in overruling appellant's motion for a new trial. In the trial of the case the witness Walker testified, in substance, that the appellant approached him about 4 o'clock in the afternoon and asked his assistance in the stealing of wheat and barley. The witness Huffman testified that he met the appellant and Walker about 4 o'clock in the afternoon; that they had a drink, and the appellant suggested that they drive out into the country. They drove north about ten miles and then turned east, and, during the course of this drive, the appellant brought up the subject of stealing wheat and barley; that they left town about 4:30 and returned about 6 o'clock. They started from town to steal the wheat about 7:30 in the evening. The appellant testified that on the afternoon of September 3 he went out to the fair ground between 1:30 and 2 o'clock and was there until 4:30 or 5 o'clock; that...