State v. Atherton

• Decision Date: 09 March 1940
• Docket Number: 34472.
• Citation: 151 Kan. 370,100 P.2d 63
• Parties: STATE v. ATHERTON.
• Court: Kansas Supreme Court

100 P.2d 63

151 Kan. 370

STATE v. ATHERTON.

No. 34472.

Supreme Court of Kansas

March 9, 1940

Syllabus by the Court.

The purpose of trial in a criminal case is to ascertain truth of matter with which defendant is charged, and it is part of the business of the trial judge to see that such end is attained.

The trial judge may not properly take examination of a witness out of the hands of counsel, nor assume a partisan attitude but proper advice to a witness in a prosecution for grand larceny relative to the true meaning of the words "market value" and a few interrogatories on that subject, designed to expedite the trial, was commendable. Gen.St.1935, 21-533.

On appeal, the Supreme Court must give judgment without regard to technical errors or defects or to exceptions which do not affect the substantial rights of the parties. Gen.St.1935 62-1718.

In prosecution for grand larceny, case was properly submitted to jury. Gen.St. 1935, 21-533.

Evidence sustained conviction for grand larceny. Gen.St.1935, § 21-533.

Where instructions appeared adequate and afforded accused a fair trial, alleged error therein was not ground for reversal of conviction.

1. The purpose of a trial in a criminal case is to ascertain the truth concerning charges made against a defendant, and it is a part of the business of the trial court to see that this end is fairly attained.

2. It is not proper for a trial judge to take the examination of a witness out of the hands of counsel, nor to assume a partisan attitude, but proper advice to a witness relative to the true meaning of the words "market value" and a few interrogatories on that subject, designed to expedite the trial, do not constitute error but, under circumstances narrated in the opinion, were commendable.

The record in a prosecution for grand larceny examined and held (1) No error was committed in submitting the case to the jury; (2) the instructions were adequate and afforded defendant a fair trial; (3) the state's case was not based upon circumstantial evidence alone, and the evidence was sufficient to sustain the conviction.

Appeal from District Court, Labette County; LaRue E. Goodrich Judge.

Cecil Atherton was convicted of grand larceny, and he appeals.

A. L. Billings, of Independence, for appellant.

Jay S. Parker, Atty. Gen., and Glenn Jones, of Parsons, for appellee.

WEDELL Justice.

The defendant was charged and convicted of grand larceny under the provisions of G.S.1935, 21-533, and from that judgment he has appealed.

The information charged the stealing, taking and carrying away of personal property consisting of two dual tires, tubes and wheels from a truck, the property of one Frank Henderson. In order to constitute grand larceny it was necessary that the value of that property be not less than $20.

Appellant first complains of certain matters which occurred at the trial touching the subject of value. One of the complaints is the trial judge interrogated a witness upon that subject. The complaint is without merit. The purpose of a trial in a criminal case is to ascertain the truth of the matters with which a defendant is charged and it is a part of the business of the trial judge to see that this end is attained. State v. Keehn, 85 Kan. 765, 118 P. 851; State v. Miller, 127 Kan. 487, 274 P. 245. Here the trial judge asked only a few helpful questions designed to expedite the trial. It is, of course, not proper for a trial judge to take the examination of a witness out of the hands of counsel nor to assume a partisan attitude. State v. Ridge, 141 Kan. 60, 67, 40 P.2d 424. The interrogatories in the instant case were not remotely open to just criticism.

Complaint is also made that the trial judge interfered with the examination of a witness while the witness was attempting to testify on the subject of value. The trial judge merely defined for the witness the meaning of the words, "market value," in order that the witness might clearly understand how that value was determined. He advised the witness that market value meant the fair value of property as between one who desired to sell and one who desired to purchase. The statement was correct. Kansas City W. & N.W. R. Co. v. Fisher, 49 Kan. 17, 30 P. 111; Hamilton v. Atchison Railway Co., 95 Kan. 353, 356, 148 P. 648. Such interference by the trial judge was not only permissible, but it was highly commendable. It assisted the witness and the jury in arriving at the truth of the inquiry under consideration.

Appellant contends there was no evidence the value of the property was $20 or more. The contention is refuted by the record. There was ample competent evidence on the subject.

Appellant also urges the complaining witness should not have been permitted to testify for the first time on rebuttal concerning the value of the property. The record discloses no objection to that testimony and there was ample testimony introduced on that subject by the state in its case in chief. On appeal this court must give judgment without regard to technical errors or defects or to exceptions which do not affect the substantial rights of the parties. G.S.1935, 62-1718.

Appellant insists a witness was permitted to guess at the fair market value of the tires, since the witness had not inspected the inside of the tires. The testimony was not incompetent for that reason. That particular testimony may not have had great weight, but its weight was determinable only by the scales of the jury. Moreover, appellant is in no position to complain concerning that testimony for other reasons. It was the testimony of his own witness and was...