State v. Hale

Citation206 Kan. 521,479 P.2d 902
Decision Date23 January 1971
Docket NumberNo. 45975,45975
PartiesSTATE of Kansas, Appellee, v. Michael Allen HALE, Appellant.
CourtUnited States State Supreme Court of Kansas

Syllabus by the Court

1. The granting of a continuance in the trial of a criminal case lies within the sound judicial discretion of the trial court and its ruling thereon will not be disturbed on appeal in the absence of an affirmative showing that its discretion has been abused to the extent that the defendant's rights have been prejudiced.

2. On a motion for new trial based on newly discovered evidence, the trial court is not warranted in setting the verdict aside unless the evidence is of such materiality that it would be likely to produce a different result upon re-trial.

3. When the defendant in a criminal prosecution voluntarily takes the stand to testify in his own behalf, he thereby waives his privilege against self-incrimination and may be cross-examined the same as any other witness upon all matters which are germane to the issue or issues being tried.

4. The record is examined in an action wherein the defendant was convicted of and sentenced for third-degree burglary and larceny, and for reasons appearing in the opinion it is held: (1) The trial court did not err (a) in denying a motion for continuance and (b) in overruling objections to questions asked of defendant on cross-examination; (2) the trial court erred in sentencing the defendant under the provisions of the Habitual Criminal Act as a second offender for terms of not less than two years or more than ten years; and (3) the sentences are corrected by striking the unauthorized and void minimum terms imposed so that each sentence shall be only 'for a term of not to exceed ten years.'

Bruce E. Borders, of Borders & Borders, Independence, argued the cause and was on the brief for appellant.

Monte K. Heasty, County Atty., argued the cause, and Kent Frizzell, Atty. Gen., and Kenneth D. David, Asst. County Atty., were with him on the brief for appellee.

FONTRON, Justice:

The defendant, Michael Allen Hale, was convicted of burglary in the third degree and larceny in connection therewith. Evidence of one prior conviction was introdeced and Mr. Hale was sentenced to serve not less than two nor more than ten years on the burglary charge and a like term of from two to ten years for larceny. The two sentences were adjudged to run concurrently.

The evidence disclosed that the defendant broke into a farm home, unoccupied at the moment, by removing the pane of glass from a window, and that a female traveling companion, Judy K. Austin, along with her two and a half year old child entered the house with him. After a sojourn of some two or three days, during which the members of this intimate group subsisted on food they found in the home, the defendant and his prote ge § left the premises taking with them various articles of property to which they had no vestige of right or title.

In this appeal the following claims of error have been advanced and will be considered in order: (1) The court erred in refusing defendant's motion for continuance; (2) the court erred in overruling objections to questions asked of defendant on cross-examination; and (3) the sentences pronounced under the Habitual Criminal Act are invalid.

On the morning of trial the defendant's counsel orally requested a continuance so that he might receive, and have analyzed, some pills being sent him through the mail by Mr. Hale's mother which were the same kind Hale had been taking for an alleged brain injury suffered by him at birth. At the same time counsel advised the court that the defense would be that of involuntary intoxication induced by the prescribed medication and that an analysis was necessary in order to evaluate the medicine and its effect upon the defendant.

After hearing arguments from both sides the court denied the request for continuance with these remarks:

'The motion will be overruled. Now, counsel still has an opportunity to ascertain by telephone or some other way, if there is any evidence you can produce, you may renew your motion and the Court will consider it, but based on such purely unsubstantiated contentions the Court does not feel that we can delay this case for that reason. The motion will be overruled.'

It is well recognized that the granting of a continuance in a criminal case lies within the sound judicial discretion of the trial court and that its ruling thereon will not be disturbed in the absence of an affirmative showing that its discretion has been abused to the extent that the defendant's rights have been prejudiced. (State v. Hill, 145 Kan. 19, 64 P.2d 71; State v. Dickson, 198 Kan. 219, 424 [206 Kan. 523] P.2d 274; State v. Weigand, 204 Kan. 666, 670, 466 P.2d 331.)

We note from the record that the offenses with which the defendant was charged occurred the middle part of May 1969; that the information was filed in district court on June 30th; and that counsel was appointed on either September 4 or 8, 1969. No satisfactory reason appears of record to explain the defendant's delay in asking for the continuance, nor is the motion, being oral, supported by affidavit. (See, K.S.A. 60-240(c); State v. Collins, 79 Kan. 411, 99 P. 817.)

Of greater significance, however, is the fact that defense counsel apparently took no steps to have the pills analyzed even after he received them, which was just two days after trial was concluded. In the defendant's motion for new trial, filed October 10, there is an allegation of newly discovered evidence consisting of samples of the medicine which defendant allegedly was taking and which, by then, was in the possession of defendant's attorney. When the motion for new trial was argued on October 23, defense counsel offered a bottle of pills in evidence but added that he 'had no idea what the nature of the drug might be.'

This sort of approach was patently insufficient to justify the granting of a new trial. In the absence both of a chemical analysis of the medicine and of probative evidence concerning its probable effect upon the human senses, the proffered pills could not, in and of themselves, be said to constitute new evidence likely to change the result of the trial. In State v. Nordmark, 84 Kan. 628, 114 P. 1068, this court said:

'* * * Unless the evidence is so material that it would be likely to produce a different result the court is not warranted in setting aside the verdict. * * *' (p. 634, 114 P. 1070.)

After defense counsel received the pills in question on October 6, 1969, it lay within the defendant's power to have them analyzed. In view of the defendant's failure to have such an analysis made and to offer the same in support of his motion, together with evidence of the probable effect of the pills when ingested, we cannot say the trial court abused its discretion in denying the request for continuance. The situation strongly resembles that which came before this court in State v. Hill, supra, where a continuance had been asked to enable the defendant to investigate the nature of the evidence concerning which a long array of witnesses (most being unknown to defendant) might possibly testify. On page 22 of its opinion, 64 P.2d on page 73, the court said:

'* * * On the motion for a new trial defendant made no showing that if he had been given more time to prepare for trial, he could have shown that some of the witnesses against him were not worthy of credence, or that he could have adduced evidence to contradict their testimony. It must therefore be held that...

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26 cases
  • State v. McDaniel, 51395
    • United States
    • United States State Supreme Court of Kansas
    • June 14, 1980
    ...prior to the aggravated battery against a law enforcement officer was admissible as part of the res gestae. In State v. Hale, 206 Kan. 521, 525, 479 P.2d 902, 906 (1971), we held that evidence of the defendant's attempt to conceal his crime was admissible as part of the res gestae, "Likewis......
  • State v. Armstrong
    • United States
    • United States State Supreme Court of Kansas
    • January 16, 1987
    ...unless the evidence is of such materiality that it would be likely to produce a different result upon re-trial. (State v. Hale, 206 Kan. 521, 479 P.2d 902 [1971].) The credibility of the evidence offered in support of the motion is for the trial court's consideration. (State v. Anderson, 21......
  • State v. Gunby, 91,406.
    • United States
    • United States State Supreme Court of Kansas
    • October 27, 2006
    ...82, 519 P.2d 651 (1974), disapproved on other grounds by State v. Scott, 210 Kan. 426, 432-33, 502 P.2d 753 (1972); State v. Hale, 206 Kan. 521, 524-25, 479 P.2d 902 (1971); State v. Pappan, 206 Kan. 195, 197, 477 P.2d 989 (1970). And we have recently indicated less commitment to automatic ......
  • State v. Ransom, 58369
    • United States
    • United States State Supreme Court of Kansas
    • July 18, 1986
    ...unless the evidence is of such materiality that it would be likely to produce a different result upon re-trial. (State v. Hale, 206 Kan. 521, 479 P.2d 902 [1971].) The credibility of the evidence offered in support of the motion is for the trial court's consideration. (State v. Anderson, 21......
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