State v. Emory
| Decision Date | 09 May 1964 |
| Docket Number | No. 43613,43613 |
| Citation | 391 P.2d 1013,193 Kan. 52 |
| Parties | STATE of Kansas, Appellee, v. Scott Mays EMORY, alias Emory Mays Scott, alias Scott Mays Stanfield, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
In an appeal from a conviction of the crimes of second degree burglary, and larceny (G.S.1961 Supp. 21-520, and G.S.1949, 21-524), the record id examined, and it is held: The trial court did not err in overruling defendant's motion to suppress the evidence that served as a basis for his conviction on the ground it had been obtained by means of an unlawful search and seizure.
Claude L. Lee, Wichita, argued the cause and was on the briefs for appellant.
R. K. Hollingsworth, Deputy County Atty., argued the cause, and William M. Ferguson, Atty. Gen., Robert E. Hoffman, Asst. Atty. Gen., and Keith Sanborn, County Atty., were with him on the brief for appellee.
This is an appeal from a conviction and sentence of defendant (appellant) Scott Mays Emory for the commission of the crimes of second degree burglary, and larceny.
The information charged defendant with breaking, entering and burglarizing the building of Albertson & Hein, Inc., located in Wichita, Kansas, and with larceny of certain miscellaneous tools and an adding machine of the total value of $3,937.20 contrary to the provisions of G.S.1961 Supp., 21-520, and GS.1949, 21-524.
At the beginning of the trial defendant filed his written motion to suppress the evidence that served as a basis for his conviction on the ground it had been obtained by means of an unlawful search and seizure.
Defendant assigns as error the trial court's overruling of his motion to suppress the evidence obtained by the search. The defendant, in an attempt to show the warrant issued for the search of his premises in Oklahoma was unlawful, assumed the burden of proof and presented his evidence which may be summarized as follows:
Jack Craig, former sheriff of LeFlore county, Oklahoma, testified as a witness for the defendant that on March 15, 1961, having information that defendant was unlawfully selling cigarettes in Oklahoma bearing Kansas tax stamps, and also certain machine tools, he, the sheriff, had the county attorney of that county prepare a search warrant for the place of business and residence of the defendant at Howe, Oklahoma, and that the proper justice of the peace, Frank Robertson, issued the search warrant. On the same day Sheriff Craig and his deputy went to defendant's place of business and residence, rapped on the front door, and when no one appeared, went to the kitchen door and knocked. The defendant came to the door where Sheriff Craig served the defendant with a copy of the search warrant. The defendant laid the search warrant on the table and said, 'Go ahead.'
At the trial the defendant testified on cross-examination:
'Q. Now, you say that when Sheriff Craig showed you the search warrant, I believe I got that correctly, 'Go right ahead and search.'
The sheriff further testified that in searching the premises he found four or five cartons of cigarettes bearing Kansas tax stamps, a quantity of machine tools and an adding machine; that he then placed defendant under arrest for possession of the cigarettes and having improper registration on his vehicle; that he took the serial number of the adding machine and then took the defendant and the cigarettes to the county jail at Poteau, Oklahoma; that he thereafter made a telephone call to Wichita, Kansas, and ascertained that the adding machine and the tools had been stolen in Wichita; that he took possession of the machine tools with the permission of defendant's wife; and that he then made his return on the search warrant to the justice of the peace within three days as prescribed by the Oklahoma statute.
The sheriff also testified that just prior to coming to Wichita to testify in the instant case on February 19, 1963, he attempted to find the records of the justice of the peace but was unable to do so due to the large amount of missing records of the justice of the peace; that Justice Robertson remembered issuing the warrant but did not know what happened to the record, as he had been ousted from office and all of his records had been destroyed.
Defendant's motion to suppress the evidence was overruled and the case...
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State v. Weniger
...the duties of his office. Lyerla v. Lyerla, 195 Kan. 259, 403 P.2d 989; Sutherland v. Ferguson, 194 Kan. 35, 397 P.2d 335; State v. Emory, 193 Kan. 52, 391 P.2d 1013, cert. den. 379 U.S. 906, 85 S.Ct. 200, 13 L.Ed.2d The only evidence adduced at trial as to why these defendants were the fir......
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State v. Williams
...established. (79 C.J.S., Searches and Seizures, Sec. 98, pp. 917-18. See also, State v. Yates, 202 Kan. 406, 449 P.2d 575; State v. Emory, 193 Kan. 52, 391 P.2d 1013, cert. denied, 379 U.S. 906, 85 S.Ct. 200, 13 L.Ed.2d We note that the appellant did not dispute the truthfulness of material......
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