State v. Graham

• Court: Kansas Supreme Court
• Writing for the Court: PARKER
• Citation: State v. Graham, 242 P.2d 1067, 172 Kan. 627 (Kan. 1952)
• Decision Date: 12 April 1952
• Docket Number: No. 38236,38236
• Parties: STATE v. GRAHAM.

Page 1067

242 P.2d 1067

172 Kan. 627

STATE v. GRAHAM.

No. 38236.

Supreme Court of Kansas.

April 12, 1952.

Syllabus by the Court.

1. The record in a criminal prosecution for burglary and larceny while engaged in commission of the burglary examined, and held, to fail to establish the trial court erred, (a) in the admission of evidence, (b) in failing to give additional instructions to the jury, (c) in overruling a motion for a new trial, and (d) in the sentence imposed.

2. If, when the overruling of a motion for new trial is assigned as error, neither the motion nor its grounds are set forth in the record an appellate court cannot ascertain whether error was committed and will not review questions pertaining to the disposition of such motion in the court below.

John H. Murray, of Leavenworth, was on the briefs for appellant.

Ernest M. Vieux, County Atty., Meade, and Harold R. Fatzer, Atty. Gen., and Paul E. Wilson, Asst. Atty. Gen., were on the briefs for appellee.

PARKER, Justice.

The defendant, Charles A. Graham, and one Perry Haynes were charged jointly in an information with burglary in the second degree, G.S.1949, 21-520, and larceny while engaged in commission of the burglary, G.S.1949, 21-524. Separate trials were ordered and a jury returned a verdict finding defendant guilty of both offenses. Following the overruling of a motion for new trial the trial court made a specific finding the record disclosed two prior convictions of felony and then sentenced defendant, on the verdict of the pury and under the provisions of G.S.1949, 21-107a, to confinement in the Kansas State Penitentiary for a period of not less than fifteen years. The appeal is from that judgment and sentence and from the order overruling the motion for a new trial.

In view of the issue subject to appellate review little need be said respecting the factual situation on which appellant's conviction depends. It suffices to say, without attempting to relate all the facts which we readily conclude were sufficient to permit the question of appellant's guilt or innocence to go to the jury, the record discloses that sometime between closing time on the evening of September 7, 1949, and commencement of business on the next day a building owned by the T. M. Deal Lumber Company was burglarized at Fowler, Kansas, and merchandise stolen therefrom, that on the evening of such day appellant, who lived at Reydon, Oklahoma, was seen in the vicinity of Fowler and was making inquiry as to the whereabouts of Perry Haynes, that thereafter some of the missing merchandise was found in a truck Haynes had been driving, and that still later other items of such merchandise were found in appellant's home at Reydon after a search of such home by law enforcement officers who had gone there after obtaining possession of a note written by Haynes and addressed to appellant's brother at Leedey, Oklahoma, wherein, among other things, the latter was advised to get everything cleaned up quick and to 'get this word to Slim at once.' It should perhaps be added that several witnesses testified appellant had two nicknames and that some people called him 'Red' while others referred to him as 'Slim.'

Two contentions advanced by appellant relate to alleged erroneous admission of evidence. One is that the court erred in admitting hearsay testimony regarding the Perry Haynes note, the other that it erred in admitting the note itself in evidence. We doubt there is any merit to these contentions. Nevertheless we are not called upon to decide them. So far as the record shows all this evidence was admitted without objection. In fact counsel for appellant; who we pause to note did not participate in the trial, does not even assert that objection thereto was made in the court below. Under such conditions and circumstances claims to the effect the trial court erred in the admission of evidence are not subject to appellate review. See, e.g., State v. Edwards, 151 Kan. 365, 99 P.2d 836; State v. Thomas, 157 Kan. 526, 142 P.2d 692.

Appellant also contends the trial court erred in admitting property taken from Perry Haynes as evidence. The factual premise on which this claim is based is fallacious. Our examination of the record discloses the court permitted the state to introduce the merchandise recovered from the home of the appellant but refused to admit the property taken from Perry Haynes. It follows this...