State v. Austin, 46117
| Decision Date | 08 April 1972 |
| Docket Number | No. 46117,46117 |
| Citation | 495 P.2d 960,209 Kan. 4 |
| Parties | The STATE of Kansas, Appellee, v. Daniel C. AUSTIN, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. Errors in the admission of evidence will not be reviewed on appeal in the absence of timely and specific objection thereto.
2. On appellate review the question is not whether the evidence establishes guilt beyond a reasonable doubt but whether the evidence was sufficient to form the basis for a reasonable inference of guilt.
3. The failure of a party to produce evidence which is available to him may
give rise to an inference that the evidence would have been adverse to him.
4. Where a witness is privileged and the privilege is independent of the party's control, the witness' claim of privilege renders the party unable to use his testimony, but the witness should at least have been summoned and asked, for he may waive his privilege.
Leonard F. Watkins, Jr., El Dorado, argued the cause, and Russell Shultz, Wichita, was with him on the brief for appellant.
Mark F. Anderson, Deputy County Atty., argued the cause, and Vern Miller, Atty. Gen., Keith Sanborn, County Atty., and F. H. Jenkins, Jr., Deputy County Atty., were with him on the brief for appellee.
The defendant, Daniel C. Austin, was convicted of first-degree robbery. He was sentenced to the Kansas State Penitentiary for a term of not less than twenty nor more than forty-two years. The present appeal followed.
In brief, the salient facts are as follows: In the early hours of February 7, 1969, the defendant and one Lewis B. Soupene engaged in a friendly game of pool at the Outer Limits tavern in Wichita. Soupene lost three games at a dollar a game, whereupon the ante was raised to two dollars per game and Soupene won the next three games. An argument ensued during which Mr. Soupene hit Mr. Austin in the face. At this juncture the proprietor arrived on the scene, blackjacked both disputants and threw them out the door.
Soupene re-entered the tavern to retrieve his hat and pool cue. Upon re-emerging he was accosted by Austin and a companion by the name of Patterson. Austin demanded an apology from his erstwhile pool playing friend. When this was refused, Austin struck Soupene and Patterson tackled him around the legs, throwing him to the ground. Austin began to kick Soupene in the ribs and face as he lay on the ground and then fell on him and grabbed his head while Patterson grabbed his wallet, which contained some $140. When Soupene said 'Man, please don't take my wallet', both men jumped up and ran for the car.
The victim ran back to the tavern and said he had been rolled. On receipt of this information the proprietor went out and hollered to Austin and Patterson, who departed at a high rate of speed. The couple was arrested about two hours later emerging from another tavern. Neither man had Soupene's wallet but Austin had $70 in currency on his person and Patterson $57. The wallet was found at a later time, stripped of its contents. Additional facts will be related as they become pertinent.
Several points of error are alleged and will be discussed in order.
First, the defendant contends that hearsay evidence was erroneously admitted. This claim grows out of the testimony of a Wichita police officer with respect to a trip made by several officers and Mr. Patterson to an area on South Broadway. In response to a question propounded by the state as to why they were going to the south part of town, the witness replied 'Mr. Patterson was going to try and show us where he'd thrown the billfold.'
No objection was interposed to this answer nor was any motion made to strike the same. Accordingly, the question is not before us for review. Our rule is that an error alleged in the admission of evidence is not subject to appellate review in the absence of a timely and specific objection addressed thereto. (See 2 Hatcher's Kansas Digest (Rev.Ed.) Criminal Law, § 425, p. 273.)
In the second place, Mr. Austin contends the evidence is insufficient to establish robbery on his part. The gist of his argument is that Patterson took Soupene's wallet and Austin had nothing to do with that-nor had any...
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