State v. Borserine

• Decision Date: 11 April 1959
• Docket Number: No. 41113,41113
• Citation: 337 P.2d 697,184 Kan. 405
• Parties: STATE of Kansas, Appellee, v. Anna Mae BORSERINE, Appellant.
• Court: Kansas Supreme Court

Page 697

337 P.2d 697

184 Kan. 405

STATE of Kansas, Appellee, v. Anna Mae BORSERINE, Appellant.

No. 41113.

Supreme Court of Kansas.

April 11, 1959.

Syllabus by the Court

1. In an appeal from a conviction of an attempt to obtain money by false pretenses the record is examined and it is held: The verdict of guilty was sustained by substantial, competent evidence, and the trial court did not err in any of the particulars specified.

2. Evidence of a conspiracy involving several persons to commit the crime for which one is separately charged in an indictment or information is admissible to show a conspiracy between the one separately charged and the others, although the others are not joined in the indictment and information and no conspiracy is charged therein. While not absolutely necessary, the better practice is to make all the conspirators parties defendant to the indictment or information, or to aver therein the existence of such conspiracy, the parties thereto, if known, and their purpose, for then the defendant upon trial will have reason to anticipate what evidence will or may be offered against him and to prepare to meet the same.

3. Pursuant to G.S.1949, 62-1016, any person who counsels, aids or abets in the commission of any offense may be charged, tried and convicted in the same manner as if he were a principal.

4. A conspiracy may be established by direct proof, or circumstantial evidence, or both. Ordinarily when acts and declarations of one or more co-conspirators are offered in evidence against another co-conspirator by a third party witness or witnesses, the conspiracy should first be established prima facie, and to the satisfaction of the trial judge. But this cannot always be required. Where proof of the conspiracy depends on a vast amount of circumstantial evidence--a vast number of isolated and independent facts--it cannot be required. In any case where such acts and declarations are introduced in evidence, and the whole of the evidence introduced at the trial taken together shows that a conspiracy actually exists, it will be considered immaterial whether the conspiracy was established before, or after, the introduction of such acts and declarations. (State v. Winner, 17 Kan. 298.)

5. Evidence of the acts and declarations of the co-conspirators, done and made in the absence of the accused, is admissible so far as it pertains to the furtherance of the common criminal design, to its consummation, to the disposition of its fruits, and to acts done to preserve its concealment as an exception to the rule against the admissibility of hearsay evidence. The acts and declarations of one conspirator in the prosecution of the crime in the foregoing respects are considered the acts and declarations of all, and are evidence against all. (State v. Emory, 116 Kan. 381, 226 P. 754.)

6. The order of proof in such case (indicated by the two preceding syllabi) is largely controlled by the trial judge; and where the crime has to be established by circumstantial evidence the prosecutor must be given permission to present that proof bit by bit as best he can without too rigid enforcement of the rule. If upon completion of the State's case, all the facts tend to show a conspiracy, the order of proof in which the acts and declarations of the conspirators are shown is not of much importance. (State v. Shaw, 108 Kan. 781, 196 P. 1100.)

W. C. Jones, Olathe, and Reese H. Robrahn, Topeka, argued the cause, and William R. Brady, Topeka, was with them on the briefs for appellant.

Herbert W. Walton, Asst. County Atty. of Johnson County, Olathe, argued the cause, and John Anderson, Jr., Atty. Gen., Robert Hoffman, Asst. Atty. Gen. and John J. Gardner, County Atty. of Johnson County, Olathe, were with him on the briefs for appellee.

SCHROEDER, Justice.

This is a criminal action in which Anna Mae Borserine was charged with the offense of attempting to obtain money by false pretenses, in violation of G.S.1949, 21-101 and 21-551.

A jury found the defendant guilty of the crime with which she was charged, a felony, and she appeals from the judgment and sentence of the district court of Johnson County, Kansas, duly presenting the questions hereafter stated.

The original complaint filed in the magistrate court of Johnson County charged William Daniel Hanley, Mario E. Visco and Ann May Harris, alias Ann Marie Harris, Adeline Azaire, Mary Morris, Adela A. Borserine, Ann Franklin, Ann Aziar, Mrs. Gene Borserine and Eugene Borserine jointly with the offense. The cause against Eugene Borserine, husband of the defendant herein, was dismissed in the magistrate court. As a result of a preliminary hearing Hanley and Visco were bound over to the district court for trial, after which Anna Mae Borserine, defendant herein, was individually bound over to the district court for trial at a separate preliminary hearing.

Hanley and Visco, though jointly charged in the information filed in the district court, were tried separately. The companion case of State v. Visco, 183 Kan. 562, 331 P.2d 318, appealed to this court by Mario E. Visco, presents the identical factual situation developed by the State's evidence as the record in the instant case. Reference is made to the Visco case for a chronological report of the factual situation presented by the State's evidence which is incorporated herein. Only the supplemental facts necessary to dispose of the issues herein, which are quite different from the issues in the Visco case, will be related.

At the trial of the case the State presented its evidence and rested. The appellant did not take the witness stand or offer evidence in her defense, thus relying exclusively on alleged errors presented by the appeal. The questions presented for review are stated by the appellant in her amended brief as follows:

'1. Did the trial court err in overruling appellant's motion for a directed verdict and discharge at the close of the State's case?

'2. Did the trial court err in overruling appellant's motion to set aside the verdict and for a new trial on account of:

'A. Admission of Evidence; and

'B. Insufficiency of competent evidence to sustain the verdict.'

The information filed in the district court upon which the appellant was tried reads:

'State of Kansas, Johnson County, ss.

'I, John J. Gardner the undersigned, County Attorney of Said County, in the name, and by the authority, and on behalf of the State of Kansas, come now here, and give the Court to understand and be informed that on or about the 21st day of June A.D., 1957, in said County of Johnson, and State of Kansas, one Anna Mae Borserine did then and there Unlawfully and Feloniously designedly and with intent to cheat and defraud Robert McEndree, attempt to obtain from the said Robert McEndree United States money in the amount of $125.00 by means of false and fraudulent representation by falsely representing herself to be an agent and employee of a publication named as 'Labor Digest' and under this guise, sell advertising in said publication when in reality the said 'Labor Digest' she purports to represent does not exist.'

The information charged the appellant singly and no co-defendant or co-defendants are named therein. Appellant calls the court's attention to the fact that no where does there appear any 'reference to any other person or persons, named or unnamed, who participated in, or was in concert with, or conspired with, or aided and abetted the appellant in the attempt to commit the offense.'

The State's evidence against the appellant was premised upon an assumption that the appellant was a part of a conspiracy with certain other persons to commit the offense alleged in the information.

The State directs attention to the original complaint and the two informations filed in the district court, stating that in effect appellant is charged jointly with Visco and Hanley for the same offense. The State's theory is that the information need not allege a conspiracy, and it proceeded on the theory that evidence of the acts and declarations of a co-conspirator is admissible to prove the crime charged, even though a conspiracy is not alleged in the information.

G.S.1949, 62-1016, provides:

'Any person who counsels, aids or abets in the commission of any offense may be charged, tried and convicted in the same manner as if he were a principal.' (Emphasis added.)

In 11 Am.Jur., Conspiracy, § 37, p. 568, it is stated:

'* * * The rule seems to be well established that, upon the trial of an indictment for a crime, evidence is admissible to prove a conspiracy to commit the crime charged, although the conspiracy is not charged in the indictment. This is permitted not for the purpose of allowing a conviction for a crime not specifically charged, but merely to show the intent with which the parties acted * * *' (Emphasis added.)

The rule seems to be well established that evidence of a conspiracy between several defendants to commit the crime for which they are jointly indicted or informed against is admissible against any of them, although no conspiracy is charged in the indictment or information. This rule is followed even though the other conspirators are not joined in the indictment or information. (66 A.L.R. 1311, 1312, 1313; and see State v. Mullins (State v. Roberts), 95 Kan. 280, 147 P. 828.)

On the procedural point we therefore conclude that evidence was admissible to show a conspiracy between the appellant, Visco and Hanley, although the latter were not joined in the information and no conspiracy is charged therein. This gives full recognition to 62-1016, supra, permitting a co-conspirator under the circumstances here presented to be 'charged, tried and convicted in the same manner as if he were a principal.' Although not absolutely necessary the better practice is to make all the conspirators parties defendant to the indictment or information, or to aver therein the existence of such conspiracy, the parties thereto, if...