State v. Burnett
| Citation | 189 Kan. 31,367 P.2d 67 |
| Decision Date | 09 December 1961 |
| Docket Number | No. 42385,42385 |
| Parties | STATE of Kansas, Appellee, v. Charles E. BURNETT, Appellant. |
| Court | United States State Supreme Court of Kansas |
Syllabus by the Court.
The record in a criminal action where a defendant appealed from the order overruling his motion for a new trial and the subjects embraced in his specifications of error relate to alleged trial errors which were fairly within the purview of the grounds of that motion, is examined and it is held: Except in unusual circumstances not existing in this case, the district court's adverse ruling on the motion for a new trial which counsel for the defendant stated had just been filed and unless there was objection he 'would submit the motion to the court without argument,' presents nothing upon which reversible error can be predicated on appeal (following State v. Toelkes, 128 Kan. 293, 278 P. 20).
Appellant was on the brief pro se.
R. K. Hollingsworth, Deputy County Atty., Wichita, William M. Ferguson, Atty. Gen., and Robert E. Hoffman, Asst. Atty. Gen., and Keith Sanborn, County Atty., Wichita, on the brief, for appellee.
The defendant was found guilty by a jury of second degree burglary as defined in G.S.1959 Supp. 21-520. Upon notice and proof of two prior convictions of felony, he was sentenced under the Habitual Criminal Act (G.S.1949, 21-107a) to confinement in the Kansas State Penitentiary for the period of his natural life. While confined under the sentence, he appealed pro se from the jury's verdict, the order overruling his motion for a new trial and from the judgment and sentence of the district court.
At the outset we are confronted with the state's challenge of the right of the defendant to be heard. Conclusions hereafter announced make it unnecessary to relate the facts of the crime other than to say that all of the evidence was to the effect the defendant was, in his own words, caught 'cold' in committing the burglary in the nighttime.
Throughout the trial the defendant was represented by counsel of his own choice. After the jury returned its verdict of guilty, counsel filed a motion for a new trial upon four grounds: (1) that the court erroneously admitted illegal testimony; (2) that the verdict was decided by means other than a fair expression of opinion on the part of the jury; (3) that the court misdirected the jury on a material matter of law, and (4) that the verdict was contrary to the law and evidence.
When the motion for a new trial came on for hearing counsel stated the motion had just been filed and unless there was objection he 'would submit the motion to the court without argument.' He then handed the motion to the court and after an examination, the court overruled it.
During the pendency of the appeal the defendant filed a hand-written document labeled 'abstract' which purports to abstract and quote portions of testimony given at the trial by certain witnesses for the state. The defendant's 'abstract' also contains specifications that the district court erred in the following respects: (1) in overruling the motion for a new trial; (2) in instructing the jury; (3) in admitting testimony of Cass Haag concerning other crimes, and (4) in overruling the motion for a discharge on the grounds the evidence was insufficient to find the defendant guilty.
As is noted, the specifications of error deal only with alleged trial errors, and, except for the fourth, specify matters fairly embraced in the motion for a new trial. The fourth specification of error was not included in the motion for a new trial, nor was the appeal from the order refusing to discharge the defendant. Under our decisions, the fourth specification of error presents nothing for appellate review (State v. Combs, 186 Kan. 247, 350 P.2d 129).
With respect to the second and third specifications of error, the record indicates they were not urged as grounds for a new trial. In State v. Morrow, 186 Kan. 342, 349 P.2d 945, this court said:
(186 Kan. loc. cit. 343, 344, 349 P.2d loc. cit. 946.)
In State v. Hayes, 169 Kan. 505, 219 P.2d 442, it was said:
'Three of appellant's four...
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Andrews v. Hand
...with wellestablished rules of procedure relating to appellate review (State v. Hamilton, 185 Kan. 101, 103, 340 P.2d 390; State v. Burnett, 189 Kan. 31, 33, 367 P.2d 67; Brown v. Allen, 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469, In the instant case the petitioner has wholly failed to comply ......
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State v. Jolly
...presented to the trial court when the motion was argued. For these reasons, also, the question is not subject to review. (State v. Burnett, 189 Kan. 31, 367 P.2d 67; State v. Ryan, 193 Kan. 672, 396 P.2d 363; State v. Gates, supra.) This is true even though the defendant contends that his c......
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State v. Aeby
...appealed from the order overruling his motion for a new trial nor did he separately specify such ruling as error. In State v. Burnett, 189 Kan. 31, 367 P.2d 67, it was said: 'While a defendant may appeal to this court as a matter of right from any judgment against him by complying with the ......
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State v. Malone
...for a new trial are unavailable on appeal. For a recent decision, where the rule is considered, discussed and applied, see State v. Burnett, 189 Kan. 31, 367 P.2d 67, to which we adhere, where it is said and held: 'While a defendant may appeal to this court as a matter of right from any jud......