State v. Jenkins

• Decision Date: 17 May 1969
• Docket Number: No. 45318,45318
• Citation: 203 Kan. 354,454 P.2d 496
• Parties: STATE of Kansas, Appellee, v. Virgil JENKINS, Appellant.
• Court: Kansas Supreme Court

Page 496

454 P.2d 496

203 Kan. 354

STATE of Kansas, Appellee, v. Virgil JENKINS, Appellant.

No. 45318.

Supreme Court of Kansas.

May 17, 1969.

Syllabus by the Court

1. Under the facts and circumstances disclosed in the opinion the appointment as defense counsel one who had previously prosecuted defendant while deputy county attorney did not constitute error.

2. The general rule is, subject to the exceptions noted in the opinion, that evidence of a previous crime is relevant to prove the elements set out in K.S.A. 60-455 if the offenses are similar in nature.

3. The purposes for which evidence of previous offenses may be considered are defined by K.S.A. 60-455 and a trial court should limit its instructions thereon to the purposes set out in the statute or analogous purposes.

4. The practice of requiring an attorney to testify against his client at any stage of the proceedings is condemned.

5. In a prosecution for robbery in the first degree the record is examined and it is held, there was no prejudicial error in (1) admitting evidence challenged on the basis of illegal search and seizure, (2) rejecting evidence in support of an alibi, (3) receiving evidence of a previous crime, (4) appointment of counsel to conduct the defense and (5) in the instructions of the trial court.

Paul V. Dugan, Wichita, argued the cause and was on brief for appellant.

R. K. Hollingsworth, Deputy County Atty., argued the cause, and Kent Frizzell, Atty. Gen., keith Sanborn, County Atty., and A. J. Focht, Deputy County Atty., with him on brief for appellee.

HATCHER, Commissioner.

This is an appeal from a conviction of robbery in the first degree.

At approximately 2:40 A. M. on July 26, 1967, two men, one armed with a shotgun, entered the Auto Inn Motel in Wichita, Kansas and robbed the night clerk of $157.00. Immediately following the departure of the robbers, the night clerk telephoned the Wichita police department and informed the department that he had been robbed by two colored males, one wearing a yellow shirt and a yellow straw hat, the other wearing a black shirt and a black hat.

At approximately 3:00 A. M. of the same day a police officer, having heard a police dispatch, observed three colored males in an automobile. Two of them were dressed as described above except for the straw hat. The three were arrested. Two of the men, Virgil Jenkins, the appellant, and Thomas Kelly, were tried together and convicted of first degree robbery. They have filed separate appeals.

Virgil Jenkins, the appellant here, contends that evidence was used by the state which was thr result of illegal search and seizure, and that evidence of an alibi was improperly rejected.

These two issues are fully discussed in the appeal of appellant's co-defendant, State v. Kelly, 203 Kan. 360, 454 P.2d 501, this day decided. It would serve no useful purpose to reiterate here what was there said. We incorporate herein by reference the opinion in the Kelly case and find the contentions to be without merit.

The appellant further complains that the trial court appointed as his defense counsel an attorney who had prosecuted him on a prior occasion.

It appears that when appellant appeared for his preliminary examination he had as retained counsel a former duputy county attorney who had prosecuted him for a similar offense some years before.

This attorney later withdrew from the case, for reasons not material here, and was then appointed by the trial court to represent the appellant at the trial. He appears to have represented appellant with due diligence and ability. This fact is admitted in appellant's brief.

We find nothing wrong with the appointment in the absence of any objection at the time of the trial on the part of counsel or the defendant. It is not unusual for the services of an attorney to be solicited by one whom he has defeated in previous litigation. We find no merit in appellant's suggestion that having once served as deputy county attorney the attorney's loyalty must still be with the state.

The appellant objects to the introduction of evidence of his conviction for robbery in the first degree during 1961.

It is somewhat difficult to identify the exact nature of appellant's objection but he appears to content that the prosecution should have shown the details of the prior conviction before it became relevant to prove any issue in the case. We cannot agree with the appellant's theory. The fact that the appellant had been convicted of a previous offense of first degree robbery would tend to prove certain elements of the offense charged. K.S.A. 60-455 provides:

'Subject to section 60-447 evidence that a person committed a crime or civil wrong on a specified occasion, is inadmissible to prove his disposition to commit crime or civil wrong as the basis for an inference that he committed another crime or civil wrong on another specified occasion but, * * * such evidence is admissible when relevant to prove some other material fact including motive, opportunty, intent, preparation, plan, knowledge, identity or absence of mistake or accident.'

The statutory rule of evidence stated above has not materially changed the case law which has developed in Kansas, (State v. Wright, 194 Kan. 271, 398 P.2d 339) although there has been some change in the elements which may be established by evidence of a prior conviction. The general rule is that evidence of a previous crime is relevant to prove the elements set out in the statute if the offenses are similar in nature. It is the similarity of the two offenses that makes the previous conviction relevant.

However, exceptions to this general rule must be recognized both as to the similarity of the offenses and the elements to be proven.

A previous offense may under some circumstances tend to prove some of the elements mentioned in the statute although there is little similarity, and, by the same token, a similar crime may not be relevant as tending to prove all of the elements mentioned in the statute. These are matters that must be left to the sound discretion of the trial court, and the admission of evidence of previous crimes must always be accompanied with proper limiting instructions.

It is not good practice to instruct in the language of the statute unless it is clear that evidence of the previous crime is relevant to prove all of the elements mentioned. If the evidence of a previous crime is not relevant to prove all of the elements mentioned in the statute such elements should be omitted from the instruction.

Appellant objects to the following instruction:

'As to the offense charged the State has introduced in its case in chief certain evidence tending to show that the defendant, Virgil Jenkins, has been previously convicted of an offense similiar to the one charged in the Information.

'You are intstructed that such evidence of a prior similiar offense was not admitted for the purpose of showing the guilt of the defendant, Virgil Jenkins, but it is competent to show inclination, intent, attitude, tendencies, guilty knowledge, system or mode of operation, malice, and lack of mistake on the part of the defendant, Virgil Jenkins, and it is limited to that purpose.'

The basis for appellant's objection to the instruction reads:

'Appellant argues that it was error for the court to give this instruction to the jury without, at the same time, advising the jury the purpose for which the evidence was admitted. As stated previously, the State failed to introduce any evidence concerning the facts of the prior case so it was simply impossible for the jury to determine whether the prior case showed appel...