State v. Eidson

• Decision Date: 07 March 1936
• Docket Number: 32352.
• Citation: 143 Kan. 300,54 P.2d 977
• Parties: STATE v. EIDSON.
• Court: Kansas Supreme Court

54 P.2d 977

143 Kan. 300

STATE v. EIDSON.

No. 32352.

Supreme Court of Kansas

March 7, 1936

Syllabus by the Court.

In prosecution for aiding and abetting in assault to rob and for aiding person committing assault to escape, admission in rebuttal of testimony that defendant and her daughter were talking to alleged robber at noon on day of assault held reversible error, where evidence was not offered to rebut anything said by defendant during her defense.

In a prosecution for aiding and abetting in the crime of assault with intent to rob, and of aiding one who had committed the crime of assault with intent to rob to escape, the record is examined, and it is held that under all the circumstances the trial court abused its discretion in permitting the introduction of evidence in rebuttal that was properly a part of the case in chief.

Appeal from District Court, Seward County; Frank O. Rindon, Judge.

Esther Eidson was convicted of assault with intent to rob by aiding and abetting, and of aiding one whom she knew had committed assault with intent to rob to escape by concealing from the officers the name of the person who had committed the robbery, and she appeals.

Reversed with directions.

BURCH C. J., dissenting.

Eugene W. Davis, of Liberal, and L. L. Morgan, of Hugoton, for appellant.

Clarence V. Beck, Atty. Gen., Earl B. Swarner, Asst. Atty. Gen., and H. A. Gaskill, Co. Atty., Charles M. Tucker, and Charles Vance, all of Liberal, for the State.

SMITH Justice.

In this action defendant was charged in one count with aiding and abetting in an assault with intent to rob; in the second count with assault with intent to rob by aiding and abetting in the third count with aiding one who she knew had committed an assault with intent to rob to escape, by concealing from the officers the name of the person who had committed the robbery. The state dismissed the first count. Defendant was convicted of the second and third. She appeals.

The assault took place in a drug store in Liberal on June 21 1934, about 9:45 p. m. A short time before that, defendant and her daughter had been in the Smith drug store. At the time of the robbery the daughter had gone out and stood on the street in front of the store. Defendant was visiting with the daughter-in-law of the proprietor of the store near the front when a man afterwards identified as Frank Colby entered. Colby accosted Roy Smith, who worked for his father in the store. He told Smith "Well, you do just what I tell you, and there won't be anybody hurt." Acting under directions of Colby, Roy Smith went back to the cash register, got the key to the front door, returned to the front door, locked it and turned out the lights in the store. Roy Smith then told his wife and defendant, who were visiting, that Colby wanted them all to go to the back of the store. They all went back. T. J. Smith, the proprietor, was in the rear of the store when he first saw his son and Colby. Roy Smith told his father that Colby wanted them all to go in back. After the lights in front had all been turned out the only light left burning was the one behind the prescription case, which partially lighted the whole store. When they were all behind the prescription case Colby ordered them all down to the basement. All present, which included T. J. Smith, Roy Smith and his wife, a clerk in the store named Locke, the defendant and Colby, went to the basement. They stayed there about five minutes. After they reached the basement there was considerable conversation between Smith and Colby about whether any one there knew the combination to the vault that was in the basement. Finally Smith convinced Colby that the only person who could unlock the vault was six blocks away and could be reached by telephone. It seemed for a while that Colby was going to tie up everybody there and take one of them to get the man who could open the vault. This idea was evidently given up and they went upstairs. As they all went back upstairs T. J. Smith broke away, escaped through a door in the back end of the store and gave the alarm. About the same time Colby broke out a window and escaped.

There was a shooting affray the next evening between Colby and an officer. They were both wounded. Colby managed to get out to the home of some of his relatives in the country near Liberal. He was surrounded there early in the morning of June 23. Rather than give himself up to the officers, he put a bullet through his brain.

The evidence against defendant was all circumstantial. Defendant urges, among other things, that she should have been discharged at the close of the evidence of the state because it was not sufficient to prove a case against her. She also urges that the trial court should have granted her a new trial. On account of the nature of the claims argued, the evidence will be examined in detail.

T. J. Smith testified about as has been given here. He testified that while they were all in the basement, defendant was within hearing distance of Colby. He also identified Colby as the same man who had kidnapped him a few months before. He also testified that Colby had never been in the basement of the store, and defendant had been.

Roy Smith, in addition to corroborating the evidence given by his father, testified about as has been heretofore set out. He also testified that when he and his wife came into the store a short time before the attempted robbery defendant and her daughter, Carrie Duvall, were the only customers in the store; that when they came upstairs out of the basement defendant was in front of him; that he did not see defendant reach for the phone; that other than the fact that Colby wore colored glasses there was no attempted disguise; that Carrie Duvall was in the store when he came, but she left a few seconds afterwards; that immediately after Colby had jumped through the window defendant showed him her hand, which she claimed Colby had struck when she reached for the phone; that it was not bleeding or black and blue, but was a little bit red.

Locke testified that defendant bought a jar of cold cream, and when she went to pay him she said "It looks like I might have lots of money" and "If anybody would tell me to hand over what I have got I would hand it over." He testified that defendant said that "Mr. Summers (president of the Citizens State Bank and owner of Chas. Summers & Sons store) had instructed his clerks if any hold-up should come in there to do whatever they said." He also testified that on the night in question Colby was dressed in blue rib overalls with a cap and a pair of dark glasses.

Holland Davis testified that he knew defendant; that he worked on the Eidson ranch in Stevens county in 1929 and Colby worked there at the same time; that he saw Colby at the Eidson ranch again the following spring; that he saw Colby afterwards in April of 1934 on the streets of Liberal and also at Mrs. Akers' house, where defendant was staying; that Colby had not changed in appearance from the time he saw him in 1929 and 1930 until the time when he saw him again in 1934; that at the time when he first saw Colby on the streets of Liberal, Colby inquired where defendant lived and that witness told him, and it was later the same day in the afternoon that he saw Colby out at the Akers' house talking to defendant; and that Colby had a scar on the left side of his face extending over across his nose; and that Colby was "kinda hatchet-faced."

Claude E. Blair testified that he viewed the body of Colby and that it was the body of the same man he saw at the Eidson sale during June, 1934; that this man was helping around the sale and showed him a truck.

Tom Novinger testified that he lived ten miles north of Plains; that his son had known Colby during his lifetime; that Colby came to his place about 7 o'clock on the morning before the holdup; that Colby was driving a dark green Chevrolet car covered with red mud and bearing an Oklahoma license plate; that the car was equipped with a radio; that Colby played the radio for them; that he saw the same car afterwards in a garage in Liberal; that the mud and license plate were still on it, but there was no radio; that Colby was dressed in blue overalls, wore a gray hat and a blue shirt, and was probably 5 feet 10 inches tall and would weigh about 150 pounds, was tanned more or less, was light complexioned, and was probably 35 years old, was of narrow face and what you would ordinarily call "hatchet-faced."

Mrs Roy Smith corroborated the testimony that has already been described herein. She also testified that defendant looked at Colby and asked her what that man wanted and whether she knew him, and that on the way to the rear of the store she asked, "Well, what do you suppose he wants?" or "What does this mean?" She testified that as defendant went past the telephone at the side of the prescription case Colby was in...