State v. Childs

• Decision Date: 21 January 1967
• Docket Number: No. 44352,44352
• Citation: 198 Kan. 4,422 P.2d 898
• Parties: STATE of Kansas, Appellee, v. James Edward CHILDS, Appellant.
• Court: Kansas Supreme Court

Page 898

422 P.2d 898

198 Kan. 4

STATE of Kansas, Appellee, v. James Edward CHILDS, Appellant.

No. 44352.

Supreme Court of Kansas.

Jan. 21, 1967.

Rehearing Denied March 7, 1967.

Syllabus by the Court

1. One of the essential elements of robbery in the first degree, where there is no violence to the victim, requires putting him in fear of some immediate injury to his person, but there is no exact standard by which to determine when an unlawful taking has been accompanied by putting the victim in fear. It is only necessary to show that the circumstances were such as to cause a reasonable man to apprehend danger, and that he could be reasonably expected to surrender his property in order to protect himself. A causal relationship, however, must be established between the acts of the accused and the surrender of the property by the victim. (Following State v. Hacker, 197 Kan. 712, 421 P.2d 40.)

2. The jury, as the exclusive judge of all material questions of fact, is also entitled to draw reasonable inferences from the evidence.

3. If the trial court entertains a real doubt of the sanity or the mental ability of an accused to comprehend his situation and make his defense, it is the duty of the court to order an inquiry, pursuant to K.S.A. 62-1531, even though not requested. Whether the court on its own initiative should order an inquiry into the sanity of an accused for trial purposes is a matter addressed to its sound judicial discretion, and in the absence of an abuse of that discretion its decision will not be disturbed.

4. Evidence of the extrajudicial identification of an accused from photographs is competent, and testimony of the identifying witness concerning the prior identification is admissible in corroboration of testimony of the same witness identifying the accused at trial. The means or manner in which the extrajudicial identification is made relates to the weight and sufficiency of the evidence rather than to its admissibility.

5. Where a witness is asked a proper question that calls fairly for competent testimony, and the answer thereto is unresponsive, the remedy of the aggrieved party is by motion to strike.

6. In an appeal from a conviction on two counts of robbery in the first degree (G.S. 1949 (now K.S.A.) 21-527), the record is examined, and for the reasons set forth in the opinion, it is held, the trial court did not err in: (1) failing to rule as a matter of law that one of the essential elements of robbery in the first degree-the taking of property of another by putting him in fear of some immediate injury to his person-had not been proved beyond a reasonable doubt; (2) failing on its own initiative to order an examination of the defendant, pursuant K.S.A. 62-1531; (3) admitting testimony of witnesses relating to their extrajudicial identification of the defendant from an examination of photographs; (4) failing to strike testimony referring to 'mug shots,' in the absence of a motion to strike; and (5) overruling the motion for new trial.

Edward G. Collister, Jr., Kansas City, argued the cause, and Gerald T. Elliott, Kansas City, was with him on the brief, for appellant.

William L. Roberts, Asst. County Atty., argued the cause, and Robert C. Londerholm, Atty. Gen., and Leo J. Moroney, County Atty., were with him on the brief, for appellee.

O'CONNOR, Justice.

This is a direct appeal in a criminal action in which the defendant, James Edward Childs, was convicted on two counts of first degree robbery (G.S. 1949 (now K.S.A.) 21-527) and sentenced to the state penitentiary for a term of not less than ten nor more than twenty-one years on each count (G.S. 1949 (now K.S.A.) 21-530), said sentences to run consecutively.

The events giving rise to this appeal began on December 5, 1963, late in the evening, when the defendant, while riding as a passenger on a Kansas City Transit Company bus, robbed the driver, George E. Williams, at knifepoint, of approximately $35.50 and also took the purse of a woman passenger. Less than a month later, on January 2, 1964, about 10:00 p. m., defendant boarded another bus owned by the same company, and, as before, at knifepoint, relieved the driver, Burley K. Thomas, of from $50 to $70, then fled.

Both bus drivers, as well as the woman passenger involved in the first occurrence, were able to identify the defendant from police photographs, and he was subsequently arrested. After a preliminary hearing, defendant was bound over to the district court for trial.

Following the appointment of Mr. Albert Grauberger as counsel, the defendant was tried by a jury on April 28, 1964, and convicted on two counts of first degree robbery involving the bus drivers. Defendant filed a motion for new trial, which was overruled, and on May 8 sentence was imposed. Thereafter, defendant filed notice of appeal, Joseph P. Jenkins was appointed counsel, and appeal was perfected. Subsequently, by court order, Mr. Jenkins was replaced by present counsel.

Defendant raises several assignments of error which shall be considered in the order presented in his brief and argument.

He first challenges his conviction on Count II by contending the court erred in failing to rule as a matter of law that one of the essential elements of robbery in the first degree-the taking of property of another by putting him in fear of some immediate injury to his person-had not been proved beyond a reasonable doubt about the driver, Williams. At trial, the question was raised by appropriate motions at the close of the state's evidence as well as after introduction of all the evidence.

The testimony of Williams on direct examination was that when he reached the end of the line at approximately 11:25 p. m., a passenger, later identified by him as the defendant, came up, sat down, and said, 'I want all of your money.' Williams testified that the defendant had a large knife, open, 'stuck up towards my throat' and 'he told me if I moved 'I will stab you. I want all of it. '' Being threatened in this manner, Williams yielded to defendant's demand and gave him the money. On cross-examination Williams testified that during the holdup he was frightened, his main thought being to get the man out of the bus as soon as possible. The events of the Williams robbery were corroborated by the woman passenger, Mrs. Settle.

Defendant, although acknowledging the above testimony, argues that it is purely conjecture and speculation to presume that the robbery of Williams was accomplished by putting him in fear of some immediate injury to his person. We are unable to agree.

Although the record does not disclose the court's instructions, it does appear the defendant made no objection to any of them; therefore, we must assume that the jury was adequately and fully informed regarding the elements of the crime.

A contention similar to the one advanced here was before us in the recent case of State v. Hacker, 197 Kan. 712, 421 P.2d 40, in which this court concluded there was ample evidence to support the verdict of guilty. There, it was stated:

'One of the essential elements of robbery in the first degree, where there is no violence to the victim, requires putting the victim in fear of some immediate injury to his person, but there is no exact standard by which to determine when an unlawful taking has been accompanied by putting the victim in fear. It is only necessary to show that the circumstances were such as to cause a reasonable man to apprehend danger, and that he could be reasonably expected to give up his property in order to protect himself. A causal relationship, however, must be established between acts of the defendant and the surrender of the property by the victim.' (Syl. 4.)

The jury, as the exclusive judge of all material questions of fact, is also entitled to draw reasonable inferences from the evidence. (State v. Greenwood, 197 Kan. 676, 421 P.2d 24; State v. Jensen, 197 Kan. 427, 417 P.2d 273.) Here, implicit in the jury's verdict of guilty, was a finding that the acts of the defendant were such as to reasonably induce fear in the victim, and that Williams gave up his property because of this apprehension. These were reasonable inferences, fully warranted from the evidence adduced. When measured by the rule announced in Hacker, the sufficiency of the evidence to support the conviction is beyond legitimate question. Hence, the jury's verdict will not be disturbed.

Defendant next asserts the court erred in (a) denying defendant's motion for appointment of a commission, pursuant to K.S.A. 62-1531, and (b) failing to order an examination when, during trial, it appeared defendant might not be capable of standing trial.

Counsel candidly concedes the record is devoid of any proceedings showing an examination was requested. Under such circumstances, there is nothing for us to review. We are informed in defendant's brief, however, that counsel approached the judge prior to trial and presented papers ready for filing whereby the appointment of a commission was requested-specific mention being made that defendant was an alcoholic. Defendant says trial counsel was informed by the judge, 'This was not the proper way to bring that matter to the court's attention.'

There was also testimony at the trial that in 1944 Childs was a patient in a mental institution at Fulton, Missouri. In 1956 he suffered a paralytic stroke and he complained of many physical ailments up to and during the trial, including high blood pressure, asthma, nervousness, fainting spells and blackouts.

Defendant now argues that because of the knowledge gained by the trial court from the informal request for an examination, as well as from the other evidence pertaining to the defendant's physical and mental condition, it was the court's duty to make some inquiry on its own initiative, and its failure to do so constituted an abuse of discretion.

In this jurisdiction the sanity of an accused, for the purpose of his being put on trial, is...