State v. Frizzell

• Decision Date: 11 March 1933
• Docket Number: 30679.
• Citation: 137 Kan. 35,19 P.2d 694
• Parties: STATE v. FRIZZELL.
• Court: Kansas Supreme Court

19 P.2d 694

137 Kan. 35

STATE v. FRIZZELL.

No. 30679.

Supreme Court of Kansas

March 11, 1933

Syllabus by the Court.

In prosecution for bank robbery, state's evidence rebutting alibi held admissible on rebuttal, where defendant offered evidence supporting such defense (Rev. St. 1923, 62-- 1438).

Verdict finding defendant guilty of "bank robbery" as charged held not invalid on ground words "bank robbery" were not in statute (Rev. St. 1923, 21--531).

In determining whether imprisonment should be increased because of prior conviction of felony, fact that prior conviction was of felony, rather than punishment, is controlling (Rev. St Supp. 1931, 21--107a).

1. In the trial of a criminal action, where evidence in support of defense of alibi had been offered, it was proper for the state on rebuttal to introduce evidence tending to rebut that defense.

2. A verdict finding the defendant guilty of "bank robbery as charged in the first count of the information" is not invalid for the reason that the words "bank robbery" are not used in the statute (R. S. 21--531) defining the offense.

3. In determining whether the term of imprisonment of one convicted of a felony should be increased because of his prior conviction of a felony, as provided by R. S. 1931 Supp 21--107a, the fact that the prior conviction was of a felony is controlling, rather than the punishment adjudged at the time of the prior conviction.

Appeal from District Court, Sumner County; Wendell Ready, Judge.

Allen Frizzell was convicted of bank robbery and of robbery in the first degree, and he appeals.

Judgment affirmed.

Thomas E. Wagstaff and Jay W. Scovel, both of Independence, and Earl J. Taggart and John Bradley, both of Wellington, for appellant.

Roland Boynton, Atty. Gen., Everett E. Steerman, Asst. Atty. Gen and John A. Potucek, Co. Atty., and Bert E. Church, both of Wellington, for the State.

HARVEY Justice.

Allen Frizzell was charged with the offense commonly known as bank robbery, and in a second count with robbery in the first degree. He was convicted on both counts, and has appealed. A former judgment of conviction was reversed by this court (State v. Frizell, 132 Kan. 261, 295 P. 658) because certain incompetent evidence prejudicial to the defendant was received. That error was not repeated at the trial from which this appeal is taken. A general statement of facts made in the former opinion need not be repeated here.

Appellant first contends that the court erred in admitting the testimony of one Otis Baker in rebuttal, and argues, if the evidence were competent at all, it should have been offered in chief. Defendant had offered evidence of his whereabouts on a date in question, which evidence tended to support the defense of alibi. In rebuttal the state called Otis Baker as a witness, who testified to seeing the defendant with two other men at a place near the scene of the crime and at a time shortly after it was committed, which tended to rebut testimony of witnesses of defendant as to his whereabouts at that time. The evidence was competent in rebuttal. R. S. 62--1438; 38 Cyc. 1413; State v. Abrams, 115 Kan. 520, 223 P. 301; State v. Haines, 128 Kan. 475, 477, 278 P. 767; State v. Bauman, 133 Kan. 27, 298 P. 772.

Appellant complains that the court admitted evidence of another similar offense. That question was determined adversely to the contention of the appellant in the former decision of this case, where it was pointed out the purposes for which such evidence might be used and the limitations thereon. There is no contention that the evidence was not offered in strict conformity with the ruling of this court; neither is any complaint made concerning the instruction of the court on that point.

Appellant next contends that the verdict is contrary to law. By its verdict the jury found the defendant "guilty of bank robbery as charged in the first count of the information." Appellant argues that the words "bank robbery" are not found in the statute; hence that the conviction was of an offense not mentioned in the statute. It is true the words "bank robbery" are not found in the statute itself. The revision committee used them as head notes. R. S. 21--531. They were used in the former decision of this case as a short description of the offense charged (132 Kan. 262, 295 P. 658), and are fairly appropriate for that purpose. The verdict, however, does not rest on those words alone, but contains the further language "as charged in the first count of the information." This language would have been sufficient in the verdict had not the words "bank robbery" been used, for the information charges facts constituting the offense defined by the statute (R. S. 21--531) under the subhead of "Bank Robbery." In this connection, see State v Treadwell, 54 Kan. 513, 38 P. 813; Id., ...