State v. Aldrich, 38900

• Decision Date: 11 April 1953
• Docket Number: No. 38900,38900
• Citation: 255 P.2d 1027,174 Kan. 335
• Parties: STATE v. ALDRICH et al.
• Court: Kansas Supreme Court

Page 1027

255 P.2d 1027

174 Kan. 335

STATE v. ALDRICH et al.

No. 38900.

Supreme Court of Kansas.

April 11, 1953.

Rehearing Denied May 16, 1953.

Syllabus by the Court.

The record examined in a criminal prosecution, and held, the trial court did not commit prejudicial error,

1. In denying defendants' motion to elect upon which of two counts the state would proceed.

2. In admitting in the state's case in chief evidence as to previous convictions of felonies of one of the defendant.

3. In determining the competency of a witness to testify.

4. In refusing defendants' counsel to examine a 'report' as more fully described in the opinion.

5. In admitting in evidence certain photographs described in the opinion.

6. In refusing to give a requested instruction to the jury.

7. In furnishing to the jury forms of verdicts which it might return.

E. Lael Alkire and Clark V. Owens, both of Wichita, argued the cause, and Wendell Godwin, of Wichita, was with them on the briefs, for the appellants.

Keith Sanborn, Deputy County Atty., Wichita, argued the cause, and Harold R. Fatzer, Atty. Gen., Paul E. Wilson, Asst. Atty. Gen., and Warner Moore, County Atty., Wichita, were with him on the briefs, for the appellee.

THIELE, Justice.

Wayne C. Aldrich and Violet M. Chappell were jointly charged in an information containing two counts, one of felonious assault with intent to kill, maim, ravage or rob Skyler C. Rice, as defined by G.S.1949, 21-431, the other of robbery in the first degree by taking property of Rice, as defined by G.S.1949, 21-527. They were tried by a jury which returned a verdict of guilty on both counts. Their motion for a new trial was denied and they were sentenced as provided by statute. Thereafter they perfected an appeal specifying error in particulars which are later discussed.

I.

At the conclusion of the state's opening statement and again at the close of the state's case in chief, appellants moved that the state be required to elect upon which of the two counts it would proceed. Both motions were denied. Appellants contend the rulings were erroneous and prejudicial. The theory advanced is that the offense of assault with intent to rob is necessarily included in the offense of robbery by force and that one cannot be guilty of two offenses arising from the same acts; that the assault with intent to rob is only a step in the completion of the crime of robbery, and actually only one crime is committed, and, upon general principles it should not be split into separate parts and the supposed offender prosecuted for commission of those separate parts, in support of which our attention is directed to State v. Colgate, 31 Kan. 511, 3 P. 346; State v. Parkhurst, 74 Kan. 672, 87 P. 703; State v. McLaughlin, 121 Kan. 693, 249 P. 612, which tend to support the theory. A contrary conclusion may be drawn from State v. Seward, 163 Kan. 136, 181 P.2d 478; Id., 164 Kan. 608, 191 P.2d 743, where it was held proper to charge in separate counts of one information the crime of forgery and the crime of obtaining property by false pretenses by use of a check, from State v. Long, 129 Kan. 379, 282 P. 583, where it was contended that accused could not be tried for robbery committed while escaping jail, and from State v. Neff, 169 Kan. 116, 218 P.2d 248, 252, certiorari denied 340 U.S. 866, 71 S.Ct. 90, 95 L.Ed. 632, where in different counts two crimes of murder were charged and where, among other things, it was held:

'Notwithstanding some general rules are recognized as guides in determining the question of proper joinder of offenses it is difficult, if not impossible, to lay down a comprehensive rule which will adequately cover every possible contingency. This court is committed to the modern and safer rule of determining the question on the peculiar facts of each case as it arises.

'Where a state's case in chief contains evidence from which it reasonably may be inferred the offenses charged in two counts are part of a comprehensive plan, inspired by the same purpose, the product of the same motive, and that defendant's objective could be fully realized only by the commission of both offenses, a motion to require the state to elect on which count it will rely for conviction is properly overruled.' (Syl. 3, 4.)

While we are inclined to the opinion the trial court did not err, if there were error it was not prejudicial. Notwithstanding the appellants were found guilty of both counts, insofar as Violet M. Chappell is concerned the court sentenced her to the state industrial farm for women, there to be confined according to law and subject to the provisions of law. Stated another way, she would have received the same sentence had she been convicted of only one of the two offenses. Insofar as Aldrich is concerned the trial court found that he had been convicted of three previous felonies and on the instant verdict sentenced him to the state penitentiary for a term of not less than fifteen years on each count, but provided that the two sentences should run concurrently and not consecutively. The result is that his term of confinement is no greater than had he been convicted of one offense only.

II.

Appellant Aldrich also complains that the trial court erred in admitting in the state's case in chief, evidence of his previous convictions of felonies. After directing attention to the rule of State v. Palmer, 173 Kan. 560, 566, 251 P.2d 225, that evidence that the accused has committed another crime independent of and unconnected with the one on trial is not admissible and that it is not competent to prove one crime by proving another, and to the exception to that rule that such evidence, under proper instructions, may be admitted when relevant to show intent, guilty knowledge, motive, plan or system of operation or inclinations and tendencies, all of which are treated by State v. Owen, 162 Kan 255, 176 P.2d 564, appellant argues that the state's evidence as to such prior convictions does not fall within the exceptions to the rule and its admission was therefore erroneous and prejudicial. In expanding his argument appellant cites many of our cases wherein the previous offenses were similar to the offense of which the accused was being tried and to other cases where the offenses were dissimilar. We shall not review these cases. In State v. Owen, supra, this court quoted approvingly from 22 C.J.S., Criminal Law, § 682, p. 1087, to the effect that questions regarding the admissibility of such evidence are within the discretion of the trial court whose rulings will not be interfered with on review unless that discretion is abused or unless it is clear the questioned evidence has no bearing on any of the issues involved in the charge. The record as abstracted is replete with objections. In some instances references are made to exhibits which are not well identified. Summarily stated, however, the state attempted to show three previous convictions, but only two were admitted and our discussion is limited to them. The first pertained to a conviction in Kansas in 1929 of the crime of robbery in the first degree and of the crime of assault with a deadly weapon. The other pertained to a conviction in the United States District Court of Georgia in the year 1944 of the crime of assault with intent to commit murder. It is not debatable that these offenses were not similar in character to the offenses for which Aldrich was being tried. The abstract discloses that the trial court in overruling objection to the evidence stated that the evidence would be admitted, not for the purpose of discrediting the defendant or as any evidence of his guilt or innocence but solely for the purpose of showing mode of operation, scienter, intent and malice. The trial court's instructions to the jury are not included in the abstract and we are not warranted in assuming that any instruction incorrectly advised the jury as to the force and effect of the evidence as to prior convictions. See generally State v. Fannan, 167 Kan. 723, 207 P.2d 1176, as bearing on the contention just discussed.

III.

Appellants contend that the trial court erred in refusing to obtain professional advice in establishing the competency of the witness Rice, who was the person allegedly assaulted and robbed. After Rice was called as a witness and had identified himself, appellants raised the question that he was incompetent to testify and requested the trial court to determine whether he should be permitted to testify. At that time the trial court's attention was directed to a stipulation between attorneys for the state and for the defendant that on July 25, 1922, Rice had been adjudged insane in the State of Indiana and committed to a state hospital there; that Rice was diagnosed to be an individual afflicted with and suffering from manic depressive psychosis; that Rice remained a patient at the hospital until he left about April 18, 1947, and that he did not return thereafter. Before the witness was permitted to testify he was examined by the trial court and it appeared that he knew his name, his middle initial, birth date and age, that he was testifying under oath, that it meant he was to state the truth to the best of his knowledge, that he believed in God, in telling the truth and would be punished if he did not do so. He stated that he remembered he had been in the Indiana hospital; that he left and went to Oklahoma, managed his own affairs and lived on his earnings; that he obtained a job in Wichita and ran an elevator at a hotel. The trial court concluded he was competent to testify and he was permitted to do so. Appellants direct attention to the rule that once a mental condition is shown to have existed it will be presumed to have continued if it is of a chronic or permanent nature, 31 C.J.S., Evidence, § 124, p. 740, and argue, in effect, that expert testimony was required to show the witness' present condition. The question of conclusiveness of an adjudication...