State v. Foster, 45169
| Decision Date | 07 December 1968 |
| Docket Number | No. 45169,45169 |
| Citation | 202 Kan. 259,447 P.2d 405 |
| Parties | STATE of Kansas, Appellee, v. Wayne FOSTER, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
In an appeal from a conviction of burglary in the second degree and larceny in connection therewith, the record is examined and, as set forth in the opinion, it is held the trial court did not err in any of the matters specified and that defendant received a fair trial.
Maurice P. O'Keefe, Jr., Atchison, for appellant.
Robert D. Caplinger, County Atty., and Robert C. Londerholm, Atty. Gen., and F. Stannard Lentz, Asst. County Atty., were with him on the brief, for appellee.
Defendant appeals from a conviction of burglary in the second degree and larceny in connection therewith, as denounced by K.S.A. 21-520 and 21-524.
During the night of November 14, 1966, a school house near Effingham was burglarized, and a movie projector and money were stolen. Three days later the projector was recovered in an apartment in Kansas City, Missouri, occupied by defendant, and he was apprehended at that time. He subsequently signed a written statement in which he admitted that on the night in question he drove his brother Dean and another person to a point near the school house. Dean and the other person got out of the car. Defendant drove off, and returned to the scene in about an hour. Dean and the other person appeared out of the darkness. Dean was carrying the projector-and gave defendant a share of the money.
Present counsel also represented defendant at the preliminary examination and trial. In this appeal seven contentions are made.
The first concerns the failure of the state to endorse the names of witnesses on the information at the time it was filed, as required by K.S.A. 62-802. Apparently counsel for defendant had not noticed the matter until after the third witness had testified. The defect was called to the court's attention, whereupon the state was allowed to endorse the names over defendant's objection. Defendant's motion for a continuance also was denied and the trial proceeded.
As shown by the case annotations following the statute, the question has been dealt with many times-on a case-by-case basis. Generally speaking-the rule is that the late endorsement of the names of witnesses or of additional witnesses-rests within the sound discretion of the trial court-the test being whether a defendant's rights are prejudicially affected by the allowance of such endorsement (State v. Hendrix, 188 Kan. 558, 565, 363 P.2d 522). Here, however, and despite the flagrant violation of the statute-no prejudice has been shown. Several of the witnesses had testified at the preliminary examination-and defendant and his counsel were well aware of the state's evidence. In fact, upon oral argument counsel candidly admitted that he was not taken by surprise. Under the circumstances clearly shown-we cannot say that the trial court abused its discretion in permitting the late endorsement and in denying a continuance.
It next is contended the court erred in permitting a woman to testify concerning her relationship with defendant while they were in California. This witness was in the apartment in Kansas City with defendant when he was apprehended and the projector recovered. Defendant contends her testimony was only for the purpose of showing him to be an immoral person. The state contends it was for the purpose of showing the unbroken chain of events and circumstances and the relationship between defendant and his brother Dean-all of which led up to the commission of the offenses here in question. On this point the record is quite hazy and incomplete, and her testimony appears to be more or less immaterial one way or the other. In any event-and especially in view of the other evidence-defendant has not established prejudicial error.
It is contended that a signed statement given by d...
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