State v. Hoggard

• Decision Date: 12 June 1937
• Docket Number: 32924.
• Citation: 146 Kan. 1,68 P.2d 1092
• Parties: STATE v. HOGGARD.
• Court: Kansas Supreme Court

68 P.2d 1092

146 Kan. 1

STATE v. HOGGARD.

No. 32924.

Supreme Court of Kansas

June 12, 1937

Syllabus by the Court.

In prosecution of defendant who was arrested in July, 1935, and bound over for trial in October and whose trial was set for December 12, overruling of motion for continuance on account of absence of witnesses was not error, in absence of showing of what evidence of witnesses would have been, or of sufficient diligence in attempting to secure attendance of witnesses.

An information charging that defendant assisted in depriving prosecuting witness of $600 by means of pretended poker game was sufficient to charge offense of "grand larceny."

In prosecution for depriving prosecuting witness of money by means of pretended poker game after approaching witness with offer to pay witness for keeping race horses, admission of testimony that defendant had approached other farmers in neighborhood with same proposition was admissible to identify persons participating in scheme.

In prosecution for depriving prosecuting witness of $600 by means of pretended poker game, refusal to instruct jury that it was not felony to play poker, and that, if prosecuting witness had chance to win, defendant should be acquitted, was not reversible error in view of other instructions and statute forbidding reviewing court to disturb judgment for nonprejudicial errors (Gen.St.1935, 62-1718).

In prosecution for grand larceny in which prosecuting witness was deprived of $600 by means of pretended poker game instructions were sufficient as fairly and accurately stating law pertaining to offense charged.

In an appeal from a judgment and sentence following conviction on a charge of grand larceny in which the prosecuting witness was deprived of $600 by means of a pretended poker game, the record examined and held:

(1) There was no sufficient showing of diligence to procure the attendance of defendant's witnesses, nor any assurance that their attendance would be procured at a later time, and the overruling of defendant's motion for a continuance was not error.

(2) The facts stated in the information sufficiently charged the defendant with the crime of grand larceny.

(3) Error based on the admission of testimony whose evidential significance was strictly limited by the court's instructions is not sustained.

(4) Error predicated on the trial court's refusal to instruct the jury on the criminal features of a poker game is not sustained.

(5) The instructions fairly and accurately stated the law pertaining to the offense charged.

Appeal from District Court, Shawnee County, Division No. 2; Paul H Heinz, Judge.

Jim Hoggard was convicted of grand larceny, and he appeals.

Hal C Davis, of Topeka, for appellant.

Clarence V. Beck, Atty. Gen., and Lester M. Goodell, of Topeka, for the State.

DAWSON Chief Justice.

This is an appeal from a judgment and sentence for the crime of grand larceny.

The State charged, and its evidence tended to prove, that Jim Hoggard and one Jack Miller conspired to and did steal $600 from Ernest Wulfkuhle, a farmer who resided near Big Springs. Defendant and one "Ketchum" called at Wulfkuhle's farm and told him they were seeking a pasture for three race horses, that the father of defendant owned the horses, and would pay $5 per day for their keep. Wulfkuhle agreed to keep the horses on those terms, and defendant told him to come to the Throop Hotel in Topeka the next day to sign the pasture contract with defendant's father. Next day Wulfkuhle came to the hotel. Ketchum was on the outlook for him, and showed him to a room where defendant and Jack Miller invited him to play cards. He said he did not understand the game. Ketchum volunteered to assist him. After some time there was a telephone call, apparently a spurious one, which pretended to convey the news that the truck which was supposed to be bringing the race horses from Kansas City had broken down near Perry, and that the arrival of the horses would be delayed. On the assurance that Ketchum would coach him, Wulfkuhle participated in a pretended game of stud poker, which was apparently played by dealing five cards, one at a time, to each of the players. The players privately inspected the first card dealt and laid it face down on the table. Ketchum had seen Wulfkuhle's first card and, when three more cards had been dealt face up to the players Ketchum assured Wulfkuhle that he already had an unbeatable hand. After some discussion, Wulfkuhle was persuaded to go with Ketchum to Lawrence and get $600 in cash to bet on this unbeatable hand. To preserve the status quo until that journey was taken Wulfkuhle's hand was sealed in one envelope, Jack Miller's hand in another, and the remainder of the deck in a third; and Ketchum, the adviser of Wulfkuhle, took charge of the three sealed envelopes. When Wulfkuhle and Ketchum returned from Lawrence with the money, and the hands were shown, Miller's hand was the stronger. He took the money, and he and defendant immediately disappeared. Ketchum made some remark about seeing the victim some time later, and followed the others. Such was the culmination of the pretended hunt for a pasture for race horses which apparently never existed, but which served to scrape up an acquaintance with a farmer who naturally enough would be pleased to get $5 per day for pasturing three race horses.

The State's evidence also tended to show that the real name of Ketchum was Roy Hoggard and that he was a brother of defendant. The trio, defendant, Miller, and Ketchum, were arrested a few days later in St. Joseph, Mo.

Touching the errors relied on to reverse the judgment, defendant first complains of the overruling of his motion for a continuance on account of the absence of Miller and Ketchum who, he averred, were important witnesses in his behalf. Neither the abstract nor brief gives any intimation about what evidence they would have given if their presence had been procured. The trial was had between December 12 and December 16, 1935. The motion for a new trial was not argued until January 4, 1936, 20 days after the verdict was rendered; but even at that late date defendant made no showing that, if Miller and Ketchum had been present, their evidence, or the evidence of either, would probably have brought about a different verdict, or at least might have averted a verdict of guilty. Moreover, this defendant was arrested in July, and was bound over for trial in October. His trial was set for December 12, and all the record shows as to his diligence in procuring the attendance of these witnesses is that on the day before the trial he received two telegrams. One of these was from the wife of Jack Miller which stated that she had received a letter from Jack, mailed in St. Louis, that he was on his way to Detroit, but would be in Topeka for the trial. If any significance were to be given to that telegram, it would be that no continuance would be necessary. And, while Miller failed to arrive according to his letter, even 20 days later, no explanation of his absence was forthcoming. The other telegram was from a woman who managed a hotel in Kansas City which read: "Ketchum stayed here been gone two weeks baggage still here."

No court would be justified in postponing an important criminal trial on such a slim showing of diligence to procure the attendance of witnesses, or on such manifest uncertainty as to their later appearance if a continuance...