State v. Lee
| Citation | 197 Kan. 463,419 P.2d 927 |
| Decision Date | 05 November 1966 |
| Docket Number | No. 44064,44064 |
| Parties | STATE of Kansas, Appellee, v. Vincent LEE, Appellant. |
| Court | United States State Supreme Court of Kansas |
1. This court has consistently held that the results of a lie detector test are not admissible as evidence in a criminal prosecution.
2. What happens in the interim between the arrest of a suspect and the appointment of an attorney cannot constitute the denial of constitutional rights where no facts were procured to be used in evidence, no defenses were lost, no plea was taken and no incriminating statements were made.
3. The guarantee of a speedy trial contained in Section 10 of the Bill of Rights of the Kansas Constitution does not refer to the preliminary examination, but rather to the trial held after an indictment is returned or an information is filed, and at which the issue of guilt or innocence is to be determined. (Following Witt v. State, 197 Kan. 363, 416 P.2d 717.)
4. As a general rule immaterial and unnecessary allegations in an information, such as the caliber of a pistol used in a robbery, may be considered as surplusage and failure to prove the caliber of the pistol used does not constitute a fatal defect.
5. The name of the place of the robbery or the name of the person or place robbed must be sufficient to give the accused notice of the charge against him, enable him to make his defense with reasonable knowledge and enable thim to plead the prosecution as bar to another indictment where the accused could not have been misled by the misnomer there could be no prejudice.
6. In a prosecution for robbery in the first degree the record is examined in connection with alleged errors considered in the opinion and it is held, no errors are disclosed which would justify the granting of a motion for a new trial.
Robert D. Benham, Kansas City, argued the cause, and Albert E. Grauberger, Kansas City, was on the briefs, for appellant.
Leo J. Moroney, County Atty., argued the cause, and Robert C. Londerholm, Atty. Gen., and Robert L. Serra and William L. Roberts, Asst. County Attys., were with him on the briefs, for appellee.
HATCHER, Commissioner.
This is a direct appeal from a verdict and judgment finding the defendant guilty on three counts of robbery in the first degree.
The defendant was sentenced on each count to imprisonment in the Kansas State Penitentiary for not less than ten nor more than twenty-one years. The sentences were to run concurrently. He was charged in the information with entering Russell's Grocery Store on November 6, 1963, armed with a .38 caliber pistol, assaulting a salesman and taking $566 from him; entering Hill's Shoe Store on October 29, 1963, armed with a .38 caliber pistol, assaulting the manager and taking $120 from him, and again entering Hill's Shoe Store on October 31, 1963, armed with a .38 caliber pistol, assaulting the manager and taking $100 from him.
The defendant, having been convicted on all three counts, has appealed to this court alleging numerous errors occurring before and during the trial. The detailed facts will be presented as we consider the legal issues to which they apply.
Appellant first contends that his constitutional rights were offended because he was not afforded counsel before he voluntarily submitted to a lie detector test.
It appears that appellant was arrested in Kansas City, Missouri and on November 7, 1963, voluntarily waived extradition and was brought to Kansas City, Wyandotte County, Kansas where he was placed in jail. He was interrogated and voluntarily submitted to a lie detector test. During this period no facts were obtained which were used in evidence, no plea was taken and no incriminating statements were taken to be used in evidence. The appellant does not contend otherwise.
Appellant makes the rather ingenious argument that the test might have been favorable to him and had he had counsel, an agreement might have been reached by which the lie detector test could have been admitted.
We cannot agree with the theory advanced by appellant. The result of the lie detector test was not admissible as evidence under the decisions of this court and any reference thereto on the part of the state or its witnesses would have constituted error under the circumstances. (State v. Lowry, 163 Kan. 622, 185 P.2d 147; State v. Smith, 187 Kan. 42, 353 P.2d 510; State v. Emory, 190 Kan. 406, 375 P.2d 585.) What happens in the interim between the arrest of a suspect and the appointment of an attorney cannot cosntitute the denial of constitutional rights where no facts were procured to be used in evidence, no defenses were lost, no plea was taken and no incriminating statements were made. (State v. Richardson, 194 Kan. 471, 486, 399 P.2d 799.)
Appellant next contends that he was denied his constitutional right to a speedy trial in that he was arrested on November 6, 1963, and not brought before a magistrate for a preliminary hearing until November 12, 1963.
This question is determined by the decision in the recent case of Witt v. State, 197 Kan. 363, 416 P.2d 717, 718, where it was held:
'The guaranty of a speedy trial contained in Section 10 of the Bill of Rights of the Kansas Constitution does not refer to the preliminary examination, but rather to the trial held after an indictment is returned or an information is filed, and at which the issue of guilt or innocence is to be determined.' (Syl. 1.)
The appellant further contends that there was a fatal variance in the description of the pistol used in the robbery as between the charge in the information and the proof.
The information in each count charged the use of 'a deadly weapon, to-wit: a .38 caliber pistol.' Only two witnesses saw the gun and only one was asked to descirbe it. He testified he gave up the money because he was afraid of the gun. He stated:
'All I could see was it was a small gun, looked new and had a white handle and I don't know what type of gun it was.'
We must conclude that the failure to prove the caliber of the pistol alleged in the information to have been used in the robbery did not constitute a fatal defect. The caliber of the pistol was not a necessary allegation. The statute refers to robbery by violence or putting a party in fear of immediate injury to his person. The...
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...allegation in the information does not constitute a fatal defect so long as the substance of the offense charged is proved. (State v. Lee, 197 Kan. 463, 419 P.2d 927, cert. denied 386 U.S. 925, 87 S.Ct. 900, 17 L.Ed.2d 797, rehearing denied, 386 U.S. 978, 87 S.Ct. 1170, 18 L.Ed.2d 142; Stat......
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State v. Johnson, 48624
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