State v. Handler
| Decision Date | 09 November 1935 |
| Docket Number | 31791. |
| Parties | STATE v. HANDLER. |
| Court | Kansas Supreme Court |
Syllabus by the Court.
Finding by trial court that second motion for new trial was frivolous and filed for vexation and delay held equivalent to overruling it, where accused was sentenced on November 28 1933, appeal was filed January 6, 1934, and second motion for new trial was filed December 27, 1934, and motion itself contained substance of affidavit offered in support thereof.
In prosecution for grand larceny for stealing tires and tire rims, evidence held to support verdict as to identity of articles stolen and as to value thereof being more than $20.
In grand larceny prosecution, evidence as to other similar offenses held properly admitted with limitation of its purpose to show motive, habit, plans, and system of operation of accused.
In prosecution for grand larceny for stealing tires and tire rims, admission of alleged hearsay testimony that rims taken from witness were Firestone rims and that man who sold rims to witness had told witness that they were that kind held not prejudicial (Rev. St. 1923, 62--1718).
1. The finding by the trial court that the second motion for a new trial was frivolous and filed for vexation and delay was equivalent to overruling it under the circumstances stated in the opinion, especially when the motion itself contained the substance of the affidavits offered in support of it.
2. The evidence as to identification of articles alleged to have been stolen and the establishment of the value thereof as being more than $20 considered, and it is held there was sufficient competent evidence to support the verdict both as to the question of identity and value.
3. There was no error in the admission of evidence as to other similar offenses to show motive, habit, plans, and system of operation of the defendant, when properly limited as to purpose as it was by the instructions in this case, and the frequent remarks and comment of the trial court in connection with the overruling of the objections of the defendant to the admission of evidence of such other offenses is not shown to have prejudiced the substantial rights of the defendant.
Appeal from District Court, Brown County; C. W. Ryan, Judge.
Max Handler was convicted of grand larceny, and he appeals.
Payne H. Ratner, of Parsons, and W E. Archer, of Hiawatha, for appellant.
Clarence V. Beck, Atty. Gen., Earl B. Swarner, Asst. Atty. Gen Forrest D. Smythe, Sp. Asst. Atty. Gen., and Lloyd S. Miller Co. Atty., of Hiawatha, for the State.
This appeal is from a conviction of grand larceny in the district court of Brown county of one who for many years had been in the automobile tire and accessory business in St. Joseph, Mo. The information charged the defendant with having stolen in Brown county, Kan., on or about the -- day of May, 1933, four tires, four inner tubes, and four rims, of the value of more than $20, belonging to one Frank King.
The principal witness for the state was one Earl Corder who at the time of the trial was serving a term in the Kansas penitentiary for burglary and larceny committed in Marshall county, and had been in penal institutions twice before. He testified that he went to Mr. King's garage at the request and under the direction of the defendant for whom he had been working for several months, and was told by defendant to get the four tires off the King truck and bring them in as he wanted them for an Iowa man the next morning. A man by the name of Barker went with him, and they removed the tires, inner tubes, and also the rims and took them to the defendant in his place of business in St. Joseph and helped put the tires and inner tubes on the Iowa truck the next morning after the rims had been removed from the tires; that the defendant gave him $32 for them; that he had stolen many tires during the previous year and delivered them to the defendant, and he always told the defendant where he had gotten them, and he usually received about $5 per tire after he had ceased working for the defendant on salary.
Three rims were found in the defendant's place of business by city police and sheriffs in searches made by them in July or August of that year, which rims were identified by Corder and Frank King as being the ones belonging to and taken from the King automobile in May, 1933.
The state offered and introduced over defendant's objections evidence as to the finding about the same time of other automobile accessories in defendant's place of business that were claimed to have been stolen from other places and belonging to other persons, and evidence of claimed owners identifying the same as having been stolen from them within a year. The trial court made numerous rulings on the objections of the defendant as to the competency, relevancy, and materiality of such testimony, to which rulings exceptions were taken by the defendant and to the overruling of defendant's motion for an instructed verdict of acquittal and to the two motions for a new trial.
As assignments of error the defendant in his brief as appellant outlines the following four questions involved:
Appellant in presenting the first question involved leaves the ruling on the first motion for a new trial for consideration under other headings, but directs special attention to the ruling on the second motion. For consideration of this question some dates are of particular importance. As stated above, the larceny was charged to have been committed in May, 1933, and some evidence shows three rims and other articles were found by police officers and sheriffs on the defendant's premises when searches were made by them in July and August, 1933. The trial was had in the month of November, 1933. The verdict of guilty of grand larceny was rendered on the 21st of November, 1933. The first motion for a new trial was promptly filed and was heard and overruled on the 28th of the same month, and defendant was sentenced thereafter on the same day. The notice of appeal was served on the county attorney, November 28, 1933, and the appeal was duly filed in this court on January 6, 1934, and the appeal has been pending here since that date.
The second motion for a new trial was filed in the district court of Brown county on December 27, 1934. The terms of district court in Brown county were at the time of the trial, and are now, in February, May, and November. The motion is supported by two affidavits of parties that had been in jail or penitentiary with witness Corder. One affiant states that he heard Corder say in the penitentiary that he had "framed" Max Handler in order to get his time cut, and had testified falsely against Handler for that purpose. The other stated in his affidavit that he was in the Brown county jail with Corder just before the Handler trial, and he heard the county attorney, sheriff, and deputy sheriff of Brown county tell Corder to go ahead and testify against Handler and they would see to it that his time would be cut. The trial court struck this second motion for a new trial from the docket. The appellant insists this was error, especially since Corder was the principal witness for the state, and that the state filed or presented no affidavit or other evidence in opposition to the two affidavits supporting the motion. We see no error in thus disposing of this second motion for a new trial. The court found that it was frivolous and filed for the purpose of vexation and delay. The motion itself contained the substance of the affidavits offered in support thereof; namely, that the evidence offered was newly discovered, that it showed the principal witness for the state had made statements in the presence of other inmates in the state penitentiary that he "had framed" the defendant in order to get his time cut, and had testified falsely against the defendant at the trial in order to get in good with the county attorney and sheriff to get a parole sooner than he otherwise would. With these statements in the motion before the trial court, the finding that the motion was frivolous and should be stricken from the docket was equivalent to an order overruling it. Under these and other circumstances stated in this opinion, we find no error in this ruling.
The appellant's second assignment of error is because the rims were not sufficiently identified and the value of the articles charged to have been stolen was not established. As to the identification of the rims, there is the testimony of King who said he especially recognized them by having observed spots of red paint on them which he had not seen on others of the same kind and make; also the testimony of Corder, who said he recognized them as the ones he had taken off the King truck and had seen them separated from the tires in defendant's place of business before the tires were placed on the Iowa truck. On cross-examination Corder said he might not be able to distinguish these three rims from others of exactly the same kind, size, and make. The well-recognized rule is as appellant cites from 17 R. C. L. 65, as follows ...
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