State v. Jones

• Decision Date: 10 December 1960
• Docket Number: No. 42186,42186
• Citation: 88 A.L.R.2d 1269,357 P.2d 760,187 Kan. 496
• Parties: , 88 A.L.R.2d 1269 STATE of Kansas, Appellee, v. Omar Amos JONES, Jr., Appellant.
• Court: Kansas Supreme Court

Page 760

357 P.2d 760

187 Kan. 496, 88 A.L.R.2d 1269

STATE of Kansas, Appellee, v. Omar Amos JONES, Jr., Appellant.

No. 42186.

Supreme Court of Kansas.

Dec. 10, 1960.

Syllabus by the Court.

The record in a criminal prosecution for robbery in the first degree (G.S.1949, 21-527) examined, and it is held, the trial court did not err in any of the particulars contended by defendant.

Omar Amos Jones, Jr., pro se.

James B. Flack, Asst. County Atty., argued the cause, and John Anderson, Jr., Atty. Gen., Robert Hoffman, Asst. Atty. Gen., and Robert J. Foster, County Atty., were with him on the briefs for appellee.

ROBB, Justice.

This is an appeal in a criminal prosecution from the trial court's order overruling defendant's motion for new trial and judgment entered.

Defendant was charged with the commission of the crime of robbery in the first degree under G.S.1949, 21-527. The trial court appointed Charles W. Thompson, a regularly practicing, competent, and well-qualified attorney of Wyandotte county to represent defendant and it may be well to note here that, as reflected in the record received from both parties to this appeal, defendant was ably represented throughout the trial which lasted for the greater portion of two days.

On March 17, 1960, the jury returned a verdict finding defendant guilty of robbery in the first degree and on March 22, 1960, defendant filed a motion for new trial. This motion was overruled on April 2, 1960. The trial court then inquired of defendant and his counsel whether they knew of any legal reason why sentence should not be imposed upon defendant and the court found none. Evidence of a prior felony conviction and sentence on October 18, 1956, to the Missouri State Penitentiary at Jefferson City for two years was heard along with a request by the state for a double penalty under the habitual criminal act (G.S.1949, 21-107a) of the sentence prescribed in G.S.1949, 21-530 for robbery in the first degree. The trial court admitted and considered the previous conviction, granted the request and sentenced defendant to the state penitentiary.

From the record the salient facts, briefly stated, are that on October 8, 1959, near Forty-seventh and Parallel streets in Kansas City, Wyandotte county, at about 1:30 a. m., Ernest Cooney, the victim of the robbery, was driving north on Forty-seventh street and saw two young men, later found to be defendant and Robert Charles Collins, silhouetted by the headlights of their stalled car. It was raining and Cooney stopped to offer assistance and transportation to their homes. They directed Cooney to a place approximately two blocks south of Quindaro Boulevard at about Fourteenth street in Kansas City, Wyandotte county. One of the 'boys' got out of the front seat of the car, got into the back seat to get his floor mats, reached around and stuck a sharp object against Cooney's neck and told him to 'freeze.' Cooney moved his neck a little and the sharp object 'went in' so he froze. The other 'boy' got Cooney's billfold, which contained from $12 to $20, and took the money but upon request of Cooney did not take the billfold. They threw Cooney's keys behind his car and ran. Later the same day at police headquarters Cooney identified both defendant and Collins and when he testified at the trial he pointed to defendant as one of the young men who had committed the offense.

Eli Yovetich, Kansas City, Kansas, police detective, was sent to the scene where he saw the disabled 'dark blue over light blue' four door 1952 or 1953 Ford automobile from which the two floor mats put into Cooney's car had been taken. No license plates were on the car but a check stub was found upon which appeared defendant's name.

William Pickering, another detective, produced the check stub referred to by Detective Yovetich which had been found in the glove compartment of the Ford.

Robert Charles Collins, who was charged in the information as a codefendant with defendant here, had asked for and was granted a severance for purposes of trial. He testified for the state that he had been in Cooney's car at the time and place in question. He further testified that defendant put his arm around Cooney's neck and got his billfold. Then on redirect examination Collins answered that he had made a written statement to the police, had signed it at the end, and was about to testify to his initials in the middle of a page when defendant's appointed counsel made a timely and appropriate objection which not only kept Collins' statement out of the evidence but stopped any further examination regarding it.

Detectives Lawrence Fee and William Grable relieved Yovetich and Pickering and thereby became the arresting officers in the case. Fee testified that during questioning he and Grable advised both Collins and defendant, who was talked to first, of their constitutional rights. Defendant implicated Collins by stating it was Collins who got into the back seat and held Cooney; that Cooney then gave defendant his billfold. Defendant and Collins made signed written statements and corroborated Cooney's identification Grable related voluntary statements made by defendant wherein he said that 'he split the money.' Defendant's statement generally corroborated the other testimony above set out and defendant also stated that 'Collins grabbed the man around the neck and when I saw what was happening I grabbed the man's billfold and floor mats and got out.'

All witnesses identified defendant either as one of the two young men who committed the robbery, or as one of the young men Cooney saw and identified at police headquarters.

Collins had entered a plea of guilty to second-degree robbery and received a suspended sentence which matter will be discussed later herein because defendant raises a question in regard thereto.

Defendant's first contention of error is that the trial court erred in refusing to grant him a new trial and thus prejudiced and violated constitutional rights guaranteed him by the federal constitution, amendment 14, § 1, and by the bill of rights of our state constitution. A careful examination of the record shows that defendant had able counsel, that the trial court extended a constant effort to assure defendant not only a fair trial but at all times throughout the trial endeavored to give defendant every possible advantage. The record reflects defendant had a fair trial and that his rights not only were not prejudiced but, on the contrary, were fully protected. State v. Dodd, 156 Kan. 52, 55, 131 P.2d 725; State v. Stubbs, 186 Kan. 266, 273, 349 P.2d 936.

Mr. O. P. Calhoon, a juror who wore sun glasses, was heard to snore during the taking of testimony and a short recess was announced so the juror could get awake. During the final argument of the state the same juror again dozed off. Defense counsel promptly called attention to the juror's falling asleep but lodged no objection and did not move for a mistrial. Both parties cite State v. King, 101 Kan. 189, 194, 165 P. 665, which involved a murder conviction by a jury and where, as shown in the hearing on a motion for new trial, a member of the jury went to sleep or dozed during the trial. The trial court spoke to and admonished that juror at...