State v. Freeman

• Decision Date: 04 March 1967
• Docket Number: No. 44572,44572
• Citation: 198 Kan. 301,424 P.2d 261
• Parties: STATE of Kansas, Appellee, v. Maceo FREEMAN, Jr., Appellant.
• Court: Kansas Supreme Court

Page 261

424 P.2d 261

198 Kan. 301

STATE of Kansas, Appellee, v. Maceo FREEMAN, Jr., Appellant.

No. 44572.

Supreme Court of Kansas.

March 4, 1967.

Syllabus by the Court

1. Where a defendant in a criminal action, while represented by counsel, waives arraignment, enters a plea of not guilty and goes to trial on the information, any claimed irregularities pertaining to the preliminary examination and/or preliminary hearing are deemed to be waived.

2. A verdict of guilty on a count of an information charging robbery in the first degree under K.S.A. 21-527 is not inconsistent with a verdict of not guilty under another count of the information charging forcible rape under K.S.A. 21-424 and such verdict will not be disturbed on the ground that it may have been the result of a compromise on the part of the jury under the facts and circumstances set forth in the opinion.

3. Specifications of error not contained in a motion for a new trial and presented to the trial court in oral argument are not subject to review on appeal.

4. In an appeal from a conviction of the offense of robbery in the first degree the record is examined and it is held no error is found that warrants a reversal.

William M. Cook, Kansas City, argued the cause and was on the briefs for appellant.

Robert L. Serra, Asst. County Atty., argued the cause, and Robert C. Londerholm, Atty. Gen., and Frank D. Menghini, County Atty., were with him on the briefs for appellee.

KAUL, Justice.

The defendant, Maceo Freeman, Jr., was convicted of robbery in the first degree in violation of K.S.A. 21-527.

The defendant was tried on charges of forcible rape under K.S.A. 21-424 and robbery in the first degree. The jury found defendant guilty on the robbery charge and not guilty of rape. Defendant's motion for new trial was overruled and he perfected this appeal.

Defendant was represented by court-appointed counsel during all proceedings in the district court. Present counsel was appointed to represent defendant in this appeal.

Defendant relies on three points for reversal of the conviction. They will be considered in the order presented in the briefs.

Defendant first complains that the district court erred in permitting the prosecution to try him on the charge of robbery in the first degree rather than assault with felonious intent. This contention is premised on a notation in the transcript and commitment of the City Court of Kansas City, Kansas, in which the charges against defendant were noted as 'rape, assault W/I.'

We have examined the complaint filed in the city court and the amended information filed in the district court. We find the language used in setting out the offense of robbery in the first degree contained in the second count of each instrument to be substantially the same and in each case properly charged an offense of robbery in the first degree. The defendant concedes the language of the complaint and amended information to be substantially the same and sufficient to charge robbery in the first degree. Defendant merely contends the notation by the city court 'rape, assault W/I' is sufficient in itself to show the state proceeded at the preliminary hearing to try defendant for assault with felonious intent, rather than robbery in the first degree, and that defendant was bound over for trial in the district court on the former resulting in reversible error.

We find no merit in defendant's contention. Preliminary examination was waived and when defendant appeared before the district court he waived arraignment entered a plea of not guilty to both charges and proceeded to trial. Defendant made no attempt to raise the point by a plea in abatement nor does he show here where he was surprised or prejudiced in any way. We have invariably adhered to the well-established rule in this jurisdiction that where-as here-the defendant in a criminal action, while represented by counsel, waives arraignment, enters a plea of not guilty and goes to trial on the information, any claimed irregularities pertaining to the preliminary examination and/or preliminary hearing are deemed to have been waived. See Portis v. State, 195 Kan. 313, 403 P.2d 959; State v. Osburn, 171 Kan. 330, 232 P.2d 451, State v. Wallgren, 144 Kan. 10, 58 P.2d 74; and State v. Perry, 102 Kan. 896, 171 P. 1150.

We have examined cases cited by defendant and find none to be applicable to the circumstances reflected by the record here.

Defendant next contends it was error to overrule his motion for a new trial on the ground the verdict was the result of a compromise by the jury.

Our consideration of this contention requires a summary of the evidence. The alleged victim of the rape and robbery was a 62-year-old woman who operated a store in Kansas City, Kansas known as the Haskell Confectionery. She testified that on the day in question, July 25, 1965, she reopened her store at 3 p. m. A man whom she identified as the defendant entered the store and asked for a package of cigarettes, but left without completing the purchase. He returned shortly thereafter with the money and purchased the cigarettes. The victim testified her granddaughter came into the store while defendant was there and that defendant left and in a few minutes (about 3:25 p. m.) her granddaughter also left. Soon after the granddaughter left the defendant came back into the store. She testified defendant struck her and knocked her down, then locked the door and turned the 'open' sign to 'closed.' Then according to the victim the defendant dragged her back into the kitchen, connected with the store, raped her, tied her hands with a twisted towel, then went to the cash register and took all the money (about $80) and left the store. She also testified defendant has some difficulty in getting the cash register open.

The state offered the testimony of another granddaughter who stated that while defendant was at the cash register she approached the door of her grandmother's store and defendant (whom she identified at the trial) shouted at her to go away.

Robert Hazen, a Fingerprint Examiner for the Federal Bureau of Investigation, was called as a witness for the state. He testified that a 'palm' impression lifted from the cash register could be identified with a 'palm' impression on an identification card bearing the name of defendant and submitted to him by the Kansas City, Kansas, Police Department.

The defense was exclusively by way of alibi. Defendant testified that he lived about four blocks from the confectionery. He went to the store on the morning of July 25, 1965, for cigarettes but found he did not have enough money and after going home for more money returned to the store and purchased the cigarettes. After leaving the store he met an uncle who took defendant 'back down home and picked up Edna and the two girls and we left there, left my house there at 2071, and went to my mother's at 2019 North First.' Defendant testified that he left his mother's house about 3:15 or 3:30. For corroboration of his alibi testimony, defendant offered the testimony of his mother, three sisters and a friend, Murle Tyler. The incomplete record discloses several inconsistencies in the testimony of defendant's witnesses.

The defendant claims that under the evidence the jury's conviction of robbery is so inconsistent with an acquittal of rape as to render the verdict so uncertain in law that no judgment should be entered thereon.

We cannot agree with defendant's rationale of the jury's verdict. We are...