State v. Hill

• Decision Date: 23 January 1937
• Docket Number: 32997.
• Citation: 145 Kan. 19,64 P.2d 71
• Parties: STATE v. HILL.
• Court: Kansas Supreme Court

64 P.2d 71

145 Kan. 19

STATE v. HILL.

No. 32997.

Supreme Court of Kansas

January 23, 1937

Syllabus by the Court.

In robbery prosecution, denial of continuance sought in order that defendant might investigate nature of testimony that might be given by 70 witnesses for state held not prejudicial error where defendant's motion for new trial did not show that with more time he could have demonstrated unreliability of such witnesses or could have adduced controverting evidence.

Where defendant was arrested more than two years after robbery was committed, whether he had been within state less than two years of the time during such period so as to authorize prosecution for robbery held for jury (Rev.St.1923, 62--503 62--504).

In robbery prosecution against defendant arrested more than two years after commission of offense, instruction authorizing jury to determine whether prosecution was barred by limitations held not inconsistent with instruction that time spent by defendant within state while concealed so that service of process could not be had upon him should not be included in computation of time (Rev. St.1923, 62--503 62--504).

In prosecution for robbery committed more than two years prior to defendant's arrest, evidence as to statement made by defendant at time of his arrest as to length of time he had been living out of state held not inadmissible on ground that it was irrelevant and not voluntarily made, where defendant's testimony at trial indicated that statements were voluntary (Rev.St.1923, 62--503).

In robbery prosecution, evidence that defendant had wide acquaintance with convicts held not prejudicial error, where subject was opened by defendant's testimony to that effect on direct examination.

In robbery prosecution, admission on cross-examination of defendant's plea of nolo contendere entered by defendant in prior prosecution in federal court for receiving stolen property held not error.

In robbery prosecution, remark of counsel for state in argument calling attention to diamond rings and fur coat of defendant's sister who had testified in his behalf held not reversible error, where defendant's objection to argument was promptly and vigorously sustained.

1. In an appeal from a verdict, judgment, and sentence following a conviction of the crime of robbery, the record examined, and held: (1) The overruling of the motion for a continuance was not error. (2) The demurrer to the state's evidence was properly overruled, and defendant's motion for a directed verdict was properly denied. (3) Error based on inconsistency of instructions considered and not sustained. (4) Error based on admission of testimony considered and not sustained. (5) Defendant's plea of nolo contendere in a prior criminal case in the United States Court was admissible as part of defendant's cross-examination. (6) Remarks of counsel for the state, in argument to the jury did not constitute reversible error, in view of the vigorous way the trial court dealt with the incident.

2. On November 20, 1935, defendant was arrested on a charge of robbery committed on January 9, 1933. The state's evidence tended to show that defendant was absent from the state for a sufficient length of time to bring the case within the two years allowed by the statute R.S. 62--503, and 62--504, in which a prosecution for such offense must be commenced.

Appeal from District Court, Montgomery County; Joseph W. Holdren Judge.

Thomas (Tommy) Hill was convicted of first degree robbery, and he appeals.

Frederick G. Apt and A. R. Enfield, both of Iola, and Dallas W. Knapp, of Coffeyville, for appellant.

Clarence V. Beck, Atty. Gen., Wint Smith, Asst. Atty. Gen., Richard L. Becker, Co. Atty., and Raymond Belt, Deputy Co. Atty., both of Coffeyville, and Otho W. Lomax, of Topeka, for the State.

DAWSON Justice.

The defendant was convicted of robbery in the first degree and appeals.

The State's evidence and other facts in the record tended to show the following: South Coffeyville is situated in Oklahoma just across the state line from Coffeyville, Kan. The defendant was born in Mound Valley, a few miles northeast of Coffeyville. In 1907 he moved to Coffeyville, and about 1912 he moved to South Coffeyville. He registered in Nowata county (apparently the situs of South Coffeyville) in 1917, and never changed his registration although in the World War he enlisted in the army as a resident of Coffeyville, Kan., and drew compensation as a Kansas soldier. Eventually he married, and he and his wife took up their abode in South Coffeyville, but he usually bought his domestic supplies in Coffeyville; and he was in and out of that city almost every day, for years-- except when periods of enforced absence prevented. For one or more indefinite intervals since his marriage he and his wife have resided on the Kansas side of the state line.

During the period of present concern, defendant operated some sort of resort named the "Casa Del" in South Coffeyville. He also had something to do with an aviation hangar and airport in the vicinity of South Coffeyville, and he did some collecting of monthly bills for a public utility company. The record also tells of some other activities which engrossed part of defendant's time and attention on the south side of the state line.

The facility with which criminals may pass from Kansas to Oklahoma and vice versa in Coffeyville and its namesake on the south makes that locality an attractive rendezvous for criminals; and in the circles in which defendant moved he became acquainted with many of that sort of people. On occasion he had been able to do some of them a service. Thus he effected the release of the wife of James Lawson and a girl friend of Glen Roy Wright, who were held by the police of Coffeyville. He did this by the simple expedient of procuring the surrender of certain bonds and stocks which had been stolen from a motor sales corporation. There was some testimony that on occasion criminals seeking to evade the officers of the law were permitted to lie in hiding in the aviation hangar which apparently was not fully used for aviation purposes, and was partly used by defendant for the storage of hay and grain.

On the morning of January 9, 1933, James Lawson, Glen Roy Wright, Harry Campbell, and Tommy Carpenter, arrived in Coffeyville from Tulsa in an automobile. Their purpose was to rob the office of the Union Gas Company. Carpenter, who was a stranger in Coffeyville, left the car to see how many people were about that office, and to learn if its vault was open. It had not yet been opened so he returned to the car, and the quartet drove to defendant's residence in South Coffeyville. Lawson testified:

"When we arrived there we called for Tommy Hill who came out. *** We all went into the house. We told him that we had come up to get the Union Gas Company and had gone over to town and the vault was locked and the manager was gone, and we did not know what to do. He said he was glad we did not go against it, that there probably would not be any money. He also said he would go over and see how things shaped up and would come back and let us know."

Later in the same forenoon defendant visited the office of the Union Gas Company, and then returned to the waiting robbers and told them that "everything was all right and we [they] could go any time we wanted to." Shortly after noon the quartet robbed the office of the gas company of the sum of $2,544. The robbers drove out of town, came to the hangar, drove inside and closed the door with the assistance of one Hendershott and others. Hendershott had been put in charge of the hangar by defendant who told him a couple of boys would come along that afternoon to "hole up" in the hangar and directed him to let them have it. Sometime that afternoon or evening defendant came to the hangar and the robbers gave him $230 as his share of proceeds of the robbery. One of the robbers testified that the amount taken was $2,360 (perhaps after deducting a sum given to Hendershott), and that it was "a well known fact that where a man tells a thief about a place to make money, that entitles him to his ten percent. regardless."

Eventually Lawson, Wright, and Carpenter landed in the penitentiary for this or other crimes. What became of Campbell does not appear. Not until October 18, 1935, was a warrant sworn out for defendant, charging him as a principal in the crime. The warrant was served on November 20, 1935. His preliminary examination was held on December 17, 1933; the information was filed on January 6, 1936; the cause was assigned for trial on January 23, and tried on that date and the next 3 days ensuing. The jury returned a verdict of guilty of robbery in the first degree. The motion for a new trial was overruled; and at the proper time and pursuant to notice to defendant it was shown by affidavits (which were not controverted) that he had theretofore been convicted of three prior and successive felonies; and he was accordingly sentenced to life imprisonment as an habitual criminal.

Defendant appeals, assigning various errors, the first of which relates to the overruling of his motion for a continuance. That motion was presented on January 6, at which time the court's attention was called to the long list of 70 witnesses whose names were indorsed on the information, a majority of whom were unknown to defendant. It was also shown that between December 17 and January 1, one of defendant's attorneys had been confined to his home on account of illness and in consequence defendant had been unable to investigate the nature of the evidence to which that formidable array of witnesses might testify. Defendant concedes that the granting or refusal of a continuance is ordinarily addressed to the...