State v. Frizzell
| Decision Date | 07 February 1931 |
| Docket Number | 29,703 |
| Parties | THE STATE OF KANSAS, Appellee, v. ALLEN FRIZZELL, Appellant |
| Court | Kansas Supreme Court |
Decided January, 1931.
Appeal from Sumner district court; WENDELL P. READY, judge.
Judgment reversed and cause remanded.
SYLLABUS BY THE COURT.
1. CRIMINAL LAW -- Evidence -- Other Similar Offenses. The rule against the admissibility of evidence of other similar but independent offenses should always be strictly enforced, and to justify any departure therefrom the evidence should come under one of the well-recognized exceptions to the general rule, among which are identity of person or crime, similarity of system or plan, and to rebut a special defense.
2. SAME--Evidence to Prove Identity--Other Similar Offenses. Where there is no question as to the commission of the crime charged and the only question of fact left for determination is whether it was done by the defendant, the matter of identity of person becomes the principal issue of fact in the case, and that issue may be further intensified by the special plea of alibi, and under such circumstances the evidence of another similar offense may be admissible with proper instructions as to the limited purpose for which it may be used by the jury.
3. SAME -- Evidence of Similar Offenses by Companion of Accused. Where the defendant was on trial under a charge of bank robbery and the evidence showed he had a companion or associate in the commission of that crime, the admission of evidence concerning another bank robbery and a murder with which the companion was said to have been connected and with which the defendant was not connected, was error and prejudicial to the rights of the defendant.
Thomas E. Wagstaff and Jay W. Scovel, both of Independence, for the appellant.
Roland Boynton, attorney-general, R. O. Mason, assistant attorney-general, and Bert E. Church, county attorney, for the appellee.
This appeal is from a conviction and sentence of and for bank robbery and robbery in the first degree which involves only the question of the admission of evidence concerning other similar offenses and instructions concerning such evidence.
The defendant was charged and convicted of robbing the Corbin State Bank in Sumner county on January 6, 1930. Evidence was introduced by the state in chief concerning the defendant being one of the two men who robbed the Hiattville bank at Hiattville, Bourbon county, on December 23, 1929, just two weeks before the robbery of the Corbin bank. The president of the Hiattville bank identified the defendant as being one of the two, described their movements, their clothing, their size, what they said and did in effecting the robbery and said that it occurred about 1:30 or 1:40 o'clock in the afternoon. Appropriate objections were made to this testimony and overruled. Later an instruction was requested concerning the same and refused, but the court gave an instruction along the same line.
The evidence concerning the Corbin robbery includes a description of the associate of the defendant and his movements and conduct. He is referred to in the testimony as one Holliday, and the cashier of the Corbin bank, in modifying his description of Holliday from what he had given of him at the preliminary hearing, testified that he had seen Holliday since the hearing and in that way had a better opportunity to know his size, and that his last description was therefore more nearly accurate than that given at the preliminary hearing. He was then asked when and where he saw him, and the surrounding conditions and circumstances which involved another bank robbery and a murder with which Holliday was said to have been connected but the defendant was not. Appropriate objections were made to this testimony and overruled, which is assigned as error.
We will first consider the question of the admissibility of the evidence concerning the robbery of the Hiattville bank. The objection to it was that it was a separate and distinct crime, isolated, unrelated and not connected with the crime charged in the information, and prejudicial to the rights of the defendant.
Appellant claims the protection of the well-recognized general rule in his favor, excluding all evidence of other offenses, but is fair enough to acknowledge the existence of many exceptions to that rule, and insists that this case does not come within the line of the exceptions. He cites decisions from this and other courts adhering to the general rule and deprecating the growing tendency to enlarge and extend the list of exceptions. This evidence as to the Hiattville bank robbery was fairly approached by the county attorney by his reference to it in his opening statement to the jury, to which an objection was made, but that opening statement prevented the defendant from being surprised, and no request for further continuance of the case beyond what was given was made because of the use of that evidence. It is usually urged by the appellants in such cases that the effect of such evidence is to convince the jury of the defendant's guilt of the similar offense and thus make it more probable to the jury that he committed the crime charged, but this is far from the purpose when it comes within the recognized list of exceptions to the general rule, and it is the all-important duty of the trial court to guard and limit the introduction of the items and features of such similar offenses and permit them to go only to the point recognized as one of the exceptions and to so plainly instruct the jury to prevent such evidence from being used for any other purpose.
The reason for the exceptions to the rule against such evidence being admissible is well stated in 16 C. J. 591, as follows:
"Where the crime charged is part of a plan or system of criminal action, evidence of other crimes near to it in time and of similar character is relevant and admissible to show the knowledge and intent of the accused and that the act charged was not the result of accident or inadvertence."
Wharton's Criminal Evidence (vol. 1, 10th ed.), page 59, after stating the rule, notes nine exceptions thereto, among which are, relevancy to prove identity of person or crime, to prove scienter or guilty knowledge, to prove intent, to show motive, to prove system, to prove malice and to rebut special defenses, and then adds:
"It is recognized that in many instances the line of demarcation is not clear, but the discretion vested in the trial judge, intelligently and considerately exercised, will enable the prosecution fully to present the charge, on the one hand, and, on the other hand, to protect the accused and secure to him the rights guaranteed to him by the constitution and the laws." (p. 60.)
Two and possibly three of the above exceptions might be urged as applicable to the collateral offense here involved, to prove identity of person and crime, to prove system and to rebut the special defense. The evidence tended to show identity of person, identity of crime, similar system or methods near the same time of the day, and was made more urgently necessary in order to rebut the defense of alibi. Remembering that there could be no question as to the fact that the bank at Corbin had been robbed, the only question left was whether it was done by the defendant. That situation made the matter of identity of person the principal issue of fact in the case. On that question it is said under this subject in 16 C. J. 588:
In the case of State v. Minnick, 113 Kan. 385, 214 P. 111, it was held:
"In the prosecution for receiving stolen goods it is held that no error was committed in admitting evidence of the defendant's possession of other goods stolen at about the same time and received by him from the same person." (Syl. P 2.)
And in the opinion it was said:
"If it was admissible it was in spite of its tendency to show him guilty of another offense and not because of it." (p. 387.)
In the case of State v. Mall, 112 Kan. 63, 209 P. 820, where the defendant was charged with the crime of grand larceny, the court admitted evidence touching a large amount of goods seized in defendant's room other than the articles for the larceny of which she was on trial, and it was held:
"Such evidence was competent as tending to show that the goods for...
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