State v. Earley

• Decision Date: 02 November 1963
• Docket Number: No. 43496,43496
• Citation: 386 P.2d 221,192 Kan. 144
• Parties: STATE of Kansas, Appellee, v. Wayne D. EARLEY, Appellant.
• Court: Kansas Supreme Court

Page 221

386 P.2d 221

192 Kan. 144

STATE of Kansas, Appellee, v. Wayne D. EARLEY, Appellant.

No. 43496.

Supreme Court of Kansas.

Nov. 2, 1963.

Syllabus by the Court

1. An accused in a criminal case cannot complain of the refusal to grant a continuance, because of an absent witness, where no affidavit has been filed as required by G.S.1949, 60-2934, and an offer of a continuance, on payment of costs as provided by G.S.1949, 60-2933, is refused.

2. A motion for continuance is addressed to the discretion of the trial court and where it is disclosed that the testimony of an absent witness would not be material to the issues, a continuance is properly refused.

3. Where a witness has testified to the good character of the defendant, it is permissible to inquire on cross-examination whether the witness had been told of particular instances, including previous crimes, which are inconsistent with the good reputation to which he has testified.

4. In a prosecution for burglary under G.S.1961 Supp. 21-520, the statute is considered and it is held that the Act, being Laws of 1953, Chapter 184, does not violate Article 2, Section 16 of the State Constitution.

David R. Gilman, Overland Part, argued the cause and was on the briefs for appellant.

B. D. Watson, County Atty., argued the cause, and William M. Ferguson, Atty. Gen., and Monte Heasty, Asst. County Atty., were with him on the briefs for appellee.

PARKER, Chief Justice.

This is an appeal from a conviction of burglary in the second degree and attempted grand larceny.

The evidentiary facts supporting the conviction will be summarized.

The home of Mr. and Mrs. John Silvey in Independence, Kansas, is located about a block from the Dr. Pepper Bottling Company plant. This plant is lighted by flood-lamps at night. The occupants of the home have an unobstructed view of the East and North sides of the plant building.

At about 9:00 o'clock P.M. on September 3, 1962, Mr. and Mrs. Silvey saw four men at the East Side of the plant building. They could not discern the features of these men but they were all fairly tall and one of them had on a light colored shirt. As they continued to observe the four men, a car passed the bottling plant and they saw four men crouch down behind some crates. When the car passed, the Silveys saw the four men enter the building by a side door and disappear inside. Mr. Silvey then called the police. Within a short time a police car came from the East and circled the bottling company building. As the police car completed its circle and came back by the door, which the four men had used in entering, the Silveys saw one man emerge from the plant through the same door. They could not discern the features of this man nor did they know who he was but they did see that he was fairly tall and that he had on a light bright colored shirt. After the man in the light colored shirt emerged from the bottling plant, the Silveys saw him start walking east away from the building across the parking area to a point where he was stopped by the officers in the police car. They also saw the man placed in the police car and then observed the car with the officers and the man drive off.

Further investigation by the officers disclosed that the glass from the door on the east of the plant building had been broken out; that such door had been forced open; that broken glass was strewn about the floor of the building; that the company's safe had been removed to the rear next to the large overhead door on the east side of the building; that the dial of the safe had been knocked off and the safe bore evidence of pry marks; that scattered about the safe on the floor were various hand tools; and that glass particles found in the soles of the defendant's boots were similar spectroscopically to glass found on the floor of the building.

When defendant, Wayne D. Earley, was apprehended by the officers he was wearing a pink shirt.

The appellant specifies three trial errors, other than the overruling of his motion for a new trial.

The first contention is based on the premise that the trial court erroneously refused his request for a continuance.

Appellant had subpoenaed a witness who had attended the first day of the trial. When this witness was called to testify it was discovered that he was at home ill and confined to his bed. Thereupon appellant orally requested a continuance. Without submitting an affidavit his counsel made a statement as to what the testimony of the missing witness would be. The State refused to stipulate that the witness would so testify. Appellant then requested that the case be passed for a few days. The court stated that it did not want to keep the jury under scrutiny and admonishment for a week, but that it would continue the case to the next term if appellant would pay the costs. Counsel for appellant stated that he was unable to pay the costs. The court considered the testimony of the appellant's continuous employment while on bail, also other obvious facts, and concluded that he was able to pay the costs. It then denied the continuance.

Continuances in a criminal case are governed by the provisions of the statute applicable to continuances in civil cases. See G.S.1949, 62-1414.

The applicable section of our civil code is G.S.1949, 60-2934. It provides in part:

'A motion for a continuance on account of the absence of evidence can be made only upon affidavit, * * *; and if it is for an absent witness, the affidavit must show where the witness resides, if his residence is known to the party, and the probability of procuring his testimony within a reasonable time, and what facts he believes the witness will prove, and that he believes them to be true. * * *'

The foregoing statute clearly states that a motion for continuance on account of an absent witness must be made upon affidavit. The requirement is mandatory. See Minch v. Winters, 122 Kan. 533, 541, 253 P. 578; State v. Stephens, 146 Kan. 660, 661, 72 P.2d 975; State v. Smith, 173 Kan. 807, 811, 252 P.2d 917.

A continuance may also be granted under the provisions of G.S.1949, 60-2933, which states:

'The court may for good cause shown continue an action at any stage of the proceedings upon such terms as may be just. When a continuance is granted on account of the absence of evidence, it shall be at the cost of the party making the application, unless the court otherwise order.'

The court offered to grant the appellant a continuance to the next term on his paying the costs which had accrued in the trial. The appellant refused and he is in no position to complain on appeal.

There is another reason why appellant's contention on the point now under consideration is without merit. The record clearly discloses the testimony of the absent witness would have been cumulative of the testimony given by the State's witness. He would have testified that shortly after the burglary he drove by the Dr. Pepper plant and saw three men at the East door but could not identify them. After he turned around and approached with his lights on, he identified the men as investigating officers. The testimony of Mr. and Mrs. Silvey was to the same effect. They saw four men but they did not attempt to identify them. They only discerned four tall men, one of whom was wearing a light colored shirt, and they were unable to identify the defendant.

The testimony of the absent witness would have served no purpose as it did not purport to rebut the testimony of the State's witnesses as to appellant's identity.

In Konitz v. Board of County Commissioners, 180 Kan. 230, 235, 303 P.2d 180, we said:

'* * * Nor was it alleged that the affiant believed the nature of the evidence to be true. The trial court did not abuse its discretion in overruling the motion by reason of plaintiffs' failure to comply with the statute. Moreover, as disclosed by the record, what plaintiffs thought the absent witness would testify to was nothing morethan cumulative evidence of other witnesses who testified for plaintiffs. See Lamer v. Lamer, 170 Kan. 579, 583, 228 P.2d 718.' (180 Kan. p. 235, 303 P.2d p. 185.)

The granting of a continuance is largely in the discretion of the trial court. Its ruling will not be disturbed unless it appears that such discretion has been abused and the substantial rights of the accused prejudiced. The record is devoid of any such showing.

Appellant's next contention is that the mention of prior convictions was improperly injected into the case.

The appellant called his employer as a character witness. The employer testified that he was the appellant's employer, that he had known him for about a year, and that his reputation was good. The employer testified on cross-examination that he interviewed the appellant for employment and inquired into his background and personal history. He further testified:

'Q. Did he tell you at that time that he had ever been previously arrested? A. No, not at that time.

'Q. He didn't mention the fact that he had been arrested once for being drunk and for disorderly conduct and a second time for larceny?

* * *

* * *

'Q. You say he didn't tell you those things? A. No.'

A witness who testified as to the good character of the accused may be questioned as to knowledge of traits or acts inconsistent therewith.

In State v. Killion, 95 Kan. 371, 378, 148 P. 643, we said:

'* * * Where witnesses have testified to the good character of the defendant, it is permissible to inquire of them whether they have not heard reports of particular instances which are inconsistent with the good reputation to which they have testified, and in that way seek to weaken or qualify the testimony which they have given. State v. McDonald, 57 Kan. 537, 46 Pac. 966; State v. Yeater, [ante] 95 Kan. 247, 147 Pac. 1114; 12 Cyc. 416.' (95 Kan. p. 378, 148 P....