State v. Hess

• Decision Date: 12 November 1955
• Docket Number: No. 39760,39760
• Citation: 289 P.2d 759,178 Kan. 452
• Parties: The STATE of Kansas, Appellant, v. O. W. HESS, Appellee.
• Court: Kansas Supreme Court

Page 759

289 P.2d 759

178 Kan. 452

The STATE of Kansas, Appellant, v. O. W. HESS, Appellee.

No. 39760.

Supreme Court of Kansas.

Nov. 12, 1955.

Syllabus by the Court.

1. An appellate court will not determine the terms of a judgment on controverted and unsupported claims of the parties to the action and must assume the journal entry of judgment correctly reflects the judgment rendered and the facts therein recited notwithstanding a claim by one of the parties to the contrary.

2. Upon appeal in a criminal action: (1) Error is never presumed but must be established. (2) If susceptible of a reasonable interpretation to the contrary the record of the proceedings of the trial court will not be interpreted to show error.

3. A new trial granted in a criminal action on the motion of a defendant places the parties in the same position as if no trial had been had.

4. An appeal in a criminal case can be taken by a defendant only after judgment and an intermediate ruling or order of which he complains can be reviewed only on such an appeal.

5. The ruling of the trial court in sustaining a defendant's motion for a new trial in a criminal action is so much within its discretion that in order to reverse it the state must affirmatively establish that each and every ground assigned as a basis for such ruling is erroneous.

6. The right of appeal in such an action is statutory, not constitutional, and the party appealing must take it on the terms provided by the statute.

7. In an appeal by the state from an order granting the defendant in a criminal action a new trial the record in examined, and held, (1) failure of the state to affirmatively establish error as to all grounds of the ruling and order requires that it be upheld and (2) under the existing facts and circumstances rulings complained of by the defendant under the guise of an appeal and a cross appeal are not subject to appellate review.

A. E. Carroll, Asst. County Atty., Alma, argued the cause, and Harold R. Fatzer, Atty. Gen., and Victor Hergenreter, County Atty., Alma, were with him on the briefs for appellant.

Edward Rooney, Topeka, argued the cause, and Jacob A. Dickinson, David Prager, William W. Dimmitt, Jr., and Sam A. Crow, Topeka, Charles Heizer, Osage City, and E. W. Stuewe, Alma, were with him on the briefs for appellee.

PARKER, Justice.

The proceedings leading up to and giving rise to this appeal are essential to its disposition, hence they will be noted as briefly as the state of the record permits.

After a preliminary examination, in which he was held for trial, defendant O. W. Hess was charged by an information, containing four counts, properly filed in the district court of Wabaunsee County, with the commission of four felonies involving the theft and embezzlement of cattle. Thereafter, on his own motion, he obtained a change of venue from Wabaunsee County to Osage County where, in the district court of the last mentioned county, he was tried by a jury. When such jury failed to reach a verdict a mistrial was declared. During the course of this trial counts 3 and 4 of the information were dismissed.

In the spring of 1954 the case again came on for trial by a jury in the district court of Osage County on the remaining counts of the information which, according to the record, read:

'I, James E. Parmiter, the undersigned County Attorney of said County, in the name and by the authority and on behalf of the State of Kansas, come now here and give the Court to understand and be informed, that on or about the ___ day of December, 1952, in said County of Wabaunsee and State of Kansas, one O. W. Hess did then the there unlawfully, feloniously and wilfully, steal, take and carry away personal property of the value of more than Twenty Dollars ($20.00), to-wit: one (1) white face steer, the same being the property of Clarence Hund.

'Count Two.

'That on or about the ___ day of October, 1952, in the County of Wabaunsee and State of Kansas, O. W. Hess did then and there unlawfully feloniously and wilfully, with intent to embezzle and convert to his own use, did make way with, secrete, embezzle and convert to his own use certain property, to-wit: neat cattle, more particularly described as five (5) white face heifers, weighing about six hundred (600) pounds, branded with the Lazy B on the left hip and branded with a year brand showing the figure 1 on the left jaw; said cattle being of the value of approximately Six Hundred Fifty Dollars ($650.00), and said cattle being the property of E. S. F. Brainard; and said cattle having been delivered to said O. W. Hess by said E. S. F. Brainard, and having come into the possession of said O. W. Hess and under his care as an agister and bailee under a contract of pasturage between said O. W. Hess and E. S. F. Brainard covering the 1952 pasture season.'

The second trial lasted about ten days. During its course, and at the close of the state's evidence, defendant moved for his discharge on the ground the evidence was insufficient to warrant a submission of the case to the jury on either count. This motion was overruled. At the close of all the evidence defendant renewed his motion for discharge and it was again overruled. Thereupon, after instructions by the court as to the applicable law and arguments of counsel, the case was submitted to the jury which returned a verdict finding defendant guilty of the crime of larceny as charged in count 1 of the information and of the crime of embezzlement as charged in count 2 of such information.

On the day the verdict was returned the defendant was given five days within which to file a motion for a new trial. He complied with that order and the motion filed by him came on for hearing on May 21, 1954. At that time, upon his request, the hearing was continued because the transcript had not been completed.

The motion for a new trial again came on for hearing on July 1st and was orally argued by counsel for defendant. At the close of this argument such counsel presented written briefs to the court and counsel for the plaintiff. The state then requested time to prepare and file a brief and reply to defendant's argument. This request was granted. On September 3rd the matter again came on for hearing at which time the state filed its written answer. The defendant was then granted thirty days in which to file a reply brief.

Some two months after the above mentioned action the matter came on for further hearing with all parties appearing, as they had on previous hearings. The court then stated it was ready to pass upon the motion and, after a somewhat complete discussion of the issues involved and the reasons for its conclusions, announced that it was sustaining such motion. Thereafter it definitely indicated the extent of its ruling and decision, as well as the state's action with respect thereto, by signing a journal entry, approved by attorneys for the parties, the pertinent portions of which read:

'Now, on this 9th day of November, 1954, the matter comes on for a further hearing with the parties appearing as aforesaid. Thereupon, the court finds that the motion for a new trial should be sustained and the verdict set aside on the grounds that the court misdirected the jury on material matters of law and evidence; gave erroneous instructions, and denied the defense proper instructions which they requested.

'It Is, Therefore, Considered, Ordered, Adjudged, and Decreed by the Court that the motion for a new trial be sustained and the verdict set aside on the grounds that the court misdirected the jury on material matters of law and evidence; gave erroneous instructions and denied defense proper instructions which they requested. Now, on this 9th day of November, 1954, the State of Kansas reserves the questions of law on the ruling of the court granting the motion for a new trial and setting aside the verdict.'

Following the trial court's action in granting a new trial and setting aside the verdict the state brought the cause to this court by filing a notice of appeal stating in substance that it appealed from the order granting defendant a new trial. Thereafter defendant filed a notice of appeal and cross-appeal, wherein he states that he appeals from the orders and judgments of the district court in refusing to sustain his divers motions for discharge and from all other adverse rulings.

In view of appellant's single specification of error as well as its statement of the question involved, each of which reads 'Did the Court commit error in granting the defendant a new trial?', it would seem there should be little question about the appellate issue involved in this case. Be that as it may, contentions advanced make it necessary to first determine the nature and extent of the ruling and decision from which the appeal is taken.

Appellant directs our attention to comments made by the trial court during the course of the ruling on the motion for a new trial and insists that such ruling was limited solely to what that tribunal deemed to be error in giving its Instruction No. 20, hence the appeal must be affirmed or reversed on that basis. On the other hand appellee takes the position that even though in ruling on the motion the trial court definitely placed its finger on such instruction as one ground of error its comments went further and definitely indicated that such ruling was based on other and additional grounds of error. It will not be necessary, and we are not here disposed, to either detail or labor the statements made by the court in ruling on the motion. Neither are we called upon to express our view as to the force and effect that should be given them in resolving the dispute that thus exists between the parties. In clear and unequivocal terms the journal entry of judgment, which we pause to note the record discloses was signed by an experienced trial judge and approved by capable attorneys for each of the parties, states not once but twice that the motion for a...