State v. Hendrix

• Decision Date: 08 July 1961
• Docket Number: No. 42344,42344
• Citation: 363 P.2d 522,188 Kan. 558
• Parties: STATE of Kansas, Appellee, v. Lee R. HENDRIX, Appellant.
• Court: Kansas Supreme Court

Page 522

363 P.2d 522

188 Kan. 558

STATE of Kansas, Appellee, v. Lee R. HENDRIX, Appellant.

No. 42344.

Supreme Court of Kansas.

July 8, 1961.

Rehearing Denied Sept. 19, 1961.

Syllabus by the Court

1. In a criminal action the record is reviewed on appeal from a conviction and sentence and found to present no reversible error.

2. In a criminal action the mere belief on the part of the trial judge that the accused is guilty of the crime charged is not enough in itself to require a disqualification. The question is not whether the trial judge believes the accused guilty, but whether the trial judge can give him a fair trial.

3. In a criminal action the endorsement of an additional name of a witness on the information, even during a trial, rests in the sound discretion of the trial court, and where permitted material prejudice to the defendant must be clearly shown before its constitutes reversible error.

4. In a criminal action where the owner of a large quantity of liquor identifies the liquor as that which was stolen from his store, but cannot positively identify each bottle when cross-examined, an objection to the acceptance of such liquor into evidence goes merely to the weight and not to the admissibility of the evidence.

5. In a criminal action where circumstantial evidence is relied upon to sustain a conviction, the circumstances must be so strong as not only to be consistent with the theory of the defendant's guilt, but they must exclude every reasonable hypothesis except that of the guilt of the defendant.

John C. Humpage, Topeka, argued the cause and was on the brief for appellant.

Robert F. Duncan, Sp. Counsel, and Maurice P. O'Keefe, Jr., County Atty., Atchison, argued the cause, and William Ferguson, Atty. Gen., was with them on the brief for appellee.

SCHROEDER, Justice.

This is a criminal action in which the appellant was charged with burglary in the second degree and the commission of larceny in one count pursuant to the provisions of G.S.1959 Supp. 21-520, and G.S.1949, 21-524. He was tried, convicted and sentenced to a term of thirty years in the Kansas State Penitentiary under the provisions of G.S.1949, 21-107a and 21-523. Appeal has been duly perfected from the conviction and sentence presenting the questions hereafter considered.

The facts giving rise to this action may be briefly summarized as follows:

Sometime between 11.00 p. m., on March 28, 1960, and 9:00 a. m., on March 29, 1960, Vance's Liquor Store in the city of Atchison, Kansas, was burglarized. Approximately $950 worth (wholesale value) of whiskies, gin, champagnes and other alcoholic beverages were taken from the shelves and store of Vance's Liquor Store and, obviously, removed from the northwest window of the store. The glass had been broken from the window, and the outer weather-proof covering of glassine cloth had also been broken.

At 9:00 a. m., on March 29 an employee of the liquor store found much of the stolen merchandise on the ground outside of the northwest window when he arrived for work. Later in the morning the Atchison police department found much of the stolen alcoholic beverages cached approximately 270 feet west of Vance's Liquor Store. All of the merchandise found outside the northwest window of the store and that cached some 279 feet west of the store, was immediately taken into custody by the Atchison police department and there held until introduced as evidence at the trial of the appellant.

Before discovery of the break-in on the 29th day of March, the appellant and two of his companions, Jerry Flatt and Donna Flatt, husband and wife, were apprehended and arrested on Skyway Highway (U. S. Highway No. 59) approximately one and one-half miles west of the Vance Liquor Store. Another companion, George A. Fountaine, was apprehended by the Atchison police department later at approximately 7:00 a. m., on the 29th day of March, 1960.

All evidence leading to the arrest of the appellant and his above named companions was circumstantial.

At 2:00 a. m., on March 29th the appellant and his three companions, George A. Fountaine, Jerry Flatt and Donna Flatt, drove into Bill Roe's service station in Missouri, across the Mo-Kan bridge from Atchison, for water in their 1952 blue Cadillac automobile. The attendant, Roland Busch, on duty at the station, specifically noticed the automobile had no license plate on it at this particular time. At the trial he so testified and identified the four persons as being together at this particular time at his station.

When the appellant and his companions left Bill Roe's service station they drove east on U. S. Highway No. 59. Approximately ten minutes later Roland Busch observed the appellant and his other three companions headed in the opposite direction going west in the Cadillac. He observed them drive to the east approach of the Mo-Kan bridge and turn south where they turned off the lights of the Cadillac in the vicinity of John Dorsey's house.

At approximately 2:30 a. m., Roland Busch saw the lights of the appellant's car go on and return to the highway headed west across the Mo-Kan bridge to the Kansas side.

At approximately 3:00 a. m., Mrs. Roland Busch, proceeding in her automobile from the Kansas side to take her husband lunch at Bill Roe's service station, followed behind the blue Cadillac in question which was going east slowly across the Mo-Kan bridge. She observed two occupants in the vehicle, one a blonde in a red dress, and the other a male. Mrs. Busch continued to follow the Cadillac across the bridge, where it made a U-turn and headed back west across the Mo-Kan bridge to Kansas.

When Mrs. Busch arrived at the service station she discussed the matter with her husband, Roland Busch, who at 3:20 a. m., called the Atchison police department to report the activities of the appellant and his companions.

At approximately 3:35 a. m., the appellant, Donna Flatt and Jerry Flatt, were stopped by a police officer within the general area of Vance's Liquor Store. The officer found the appellant had a Kansas driver's license and a Missouri license plate on his automobile, whereupon he and his two companions were apprehended. The Atchison police immediately called the owner of the Missouri license plates, John Dorsey, who checked to find that his license plate, M-19-341, was missing from his 1954 automobile parked in front of his home on the Missouri side of the Mo-Kan bridge. John Dorsey then proceeded to the Atchilson police station and saw his license plate on the blue Cadillac being driven by the appellant.

At the time of the appellant's arrest a search was made of the Cadillac and tools suitable for use in burglaries were found by the police officers between the front and rear seats of the automobile.

After the burglary was discovered, a microscopic examination of clothing worn by the appellant and sweepings taken from the Cadillac automobile in question was made by the Kansas Bureau of Investigation. It revealed glassine particles, similar to the glassine material which had been broken on the northwest window of Vance's Liquor Store, on the appellant's cap, socks and trousers. Similar glassine particles were found in the sweepings taken from the back seat of the Cadillac automobile.

There was evidence that it was physically impossible for one person to remove the tremendous quantity of liquor from the inside of Vance's Liquor Store through the northwest window, it being too high for one person to get the job done.

The appellant and his three companions were charged jointly in one complaint upon which a warrant was issued and served. After preliminary hearing the appellant was bound over to the district court of Atchison County, Kansas, on or about the 7th day of September, 1960. Inasmuch as George A. Fountaine entered a plea of guilty and was sentenced separately, the information upon which the appellant was charged omitted Fountaine as one of the joint defendants.

The appellant first contends the trial court erred in overruling his petition for change of venue on the ground that the district judge was disqualified to preside at the trial.

In his petition for change of venue the appellant sets forth Exhibit 'A' filed in his case, which he calls 'a joint statement of the Honorable Edmund L. Page and the County Attorney of Atchison County, Kansas,' contending that at the time the district judge filed the statement he had heard no evidence in the case whatsoever and was not fully apprised of the facts and circumstances surrounding the case. The statement filed by the judge contains the following:

'a. Even after his [George A. Fountaine's] plea of guilty in the case, he has maintained that the other persons participating in the crime were innocent, not knowing that this jurisdiction has a scientific data which definitely connects and establishes the said confederates participation in his crime of burglary.

'b. The prisoner was a native of Topeka, Kansas, at the time of his apprehension. He was apprehended along with one Jerry R. Flatt, Donna Flatt and Lee Hendrix. These four individuals were professional burglars from Topeka and came to Atchison with the avowed purpose of cleaning out one of the local liquor stores of approximately $1,000.00 wholesale value, with the anticipated object of selling this whiskey through illicit channels.' $The appellant's petition for change of venue then recites:

'That the statements set out in Exhibit 'A' made by the Honroable Edmund L. Page and filed in this case and made a part thereof are wholly unnecessary insofar as the duty of this court is concerned to advise the Kansas State Penitentiary relative to the background of George A. Fountaine and the text of Exhibit 'A' clearly demonstrates the court's passion and prejudice in this case when considered with the rest of the file herein wherein George A. Fountaine was sentenced under the Habitual Criminal Act of the State of Kansas and notwithstanding said...