State v. Lopez, 40615

• Decision Date: 07 December 1957
• Docket Number: No. 40615,40615
• Citation: 182 Kan. 46,318 P.2d 662
• Parties: STATE of Kansas, Appellee, v. Julio LOPEZ, Appellant.
• Court: Kansas Supreme Court

Page 662

318 P.2d 662

182 Kan. 46

STATE of Kansas, Appellee, v. Julio LOPEZ, Appellant.

No. 40615.

Supreme Court of Kansas.

Dec. 7, 1957.

Syllabus by the Court.

The record in a criminal prosecution for grand larceny examined and held: That under the facts and circumstances set forth in the opinion the claims of error relied upon by the appellant as grounds for reversal of the judgment of conviction (1) the endorsement of the names of additional witnesses on the information during the trial; (2) the admission of incompetent and hearsay evidence over appellant's objections; (3) the overruling of appellant's objection to the county attorney's closing argument to the jury; (4) the overruling of appellant's motions to quash the information and the jury panel on the grounds that Mexicans or persons of Spanish descent were systematically excluded from petit jury service in Geary County; and (5) the verdict was contrary to law and the evidence, lack merit and cannot be upheld.

Charles S. Scott, of Topeka, argued the cause, and Elisha Scott and John J. Scott, Topeka, were with him on the briefs for appellant.

Robert L. Deam, County Atty., Junction City, argued the cause, and John Anderson, Jr., Atty. Gen., was with him on the briefs for appellee.

FATZER, Justice.

Appellant, Julio Lopez, was jointly charged with Eddie Alfaro and Albert Mureno with the larceny of various items of merchandise exceeding $20 in value from the J. C. Penney Clothing Store in Junction City, Kansas, on January 31, 1956. Appellant was tried by a jury in the district court of Geary County and convicted of the offense charged. Following the overruling of his motion for a new trial appellant has appealed.

Appellant is a member of the Mexican race and is a resident of Los Angeles, California. On the evening of January 30, 1956, he and the codefendants and a woman by the name of Mary Ann Montoya, while en route to Los Angeles in a 1951 Cadillac sedan, stopped for the night at a motel south of Junction City. During the evening appellant and the codefendants discussed the stealing of suits.

The following day appellant, the codefendants and Mary Ann Montoya returned to Junction City. Appellant was driving and he parked the car near the Penney Store, put money in the parking meter, then walked down the street. Alfaro, Mureno and Mary Ann Montoya went into the Penney Store and a few minutes later appellant went in. Mureno was with a clerk in the work clothes department at the rear of the store. Appellant joined Alfaro and the woman near the men's suit rack at the front of the store. Appellant folded three suits from the rack and handed them to Alfaro; Mary Ann Montoya threw an overcoat over them and the three started running from the store. Gerald Gillen, a clerk who was watching the Mexicans, testified that he saw the suits taken from the rack and called the manager, Dwight Freeman, who was upstairs; that when Freeman came down he (Gillen) told him what happened, then pursued one of the Mexicans down the street. Alfaro and Mureno both entered pleas of guilty to the offense charged and testified as witnesses for the state. Alfaro testified that the clerk who followed them chased appellant down the street; that when Mureno finally reached the car Alfaro was there and Mureno started the car and picked the appellant up when they stopped for a traffic signal at an intersection. (The woman was left behind and later apprehended in Junction City.)

The appellant and codefendants were arrested east of Abilene by officers of the Abilene police department who placed the three in jail in Abilene until the sheriff of Geary County and Officer Warner of the Junction City police department arrived who returned them to the county jail in Junction City.

Appellant first contends that the trial court erred in permitting the county attorney to endorse the names of two additional witnesses on the information during the trial. In the court's chambers and in the absence of the jury, the county attorney requested permission to endorse on the information the names of Kenneth Cain, chief of police of Abilene, and D. C. Berkmeyer, patrolman of that police department. The county attorney stated to the court and counsel that the testimony the previous day indicated there was a two or three hour delay in the Junction City police officers arriving in Abilene to pick up appellant and the codefendants and to search the car; that he did not want the state's case to be left open to a possible argument on the part of the appellant that the stolen suits had been 'planted' as evidence in the Cadillac car. Counsel for appellant inquired whether he would have an opportunity to ascertain the nature of the testimony of the two witnesses, whereupon the county attorney outlined the testimony he intended to elicit from the two witnesses to the effect that they had apprehended the appellant and the codefendants pursuant to a call they received from the Junction City police department, following which they arrested the three men and asked the driver of the Cadillac to drive the car to the Abilene police department where appellant locked the car and kept the keys in his possession until the Geary County officers arrived and searched the car. Counsel objected to the endorsement on the ground that the testimony was a complete surprise. The trial court stated there was a hiatus in the continuity of events from the theft of the suits until they were found when the car was searched in Abilene by the Geary County officers of about three hours, but stated that evidence to cover the intervening period was not so cumulative as to preclude its admission. The trial court overruled appellant's objection and permitted the endorsement of the names of the witnesses.

This court has held time and again that the endorsement of additional names of witnesses on the information, even during a trial, rests in the sound judicial discretion of the trial court, and material prejudice in the ruling must be clearly shown before it constitutes a reversible error (State v. Howland, 100 Kan. 181, 163 P. 1071; State v. Buckle, 116 Kan. 51, 225 P. 1035; State v. Lange, 121 Kan. 703, 249 P. 595; State v. Burgett, 174 Kan. 102, 105, 254 P.2d 254).

Only one of the witnesses, Kenneth D. Cain, testified. His testimony showed he had a part in arresting appellant; that appellant was placed in his custody in the Abilene police station and later turned over to the Geary County officers; that no search was made of the car at that time; that upon arrival at the Abilene police department, the appellant locked the car and kept the keys with him; and, that he (Cain) was not present when the vehicle was searched by the Geary County officers. This testimony concerned only the chain of circumstances and events following the custody of appellant and his automobile from the time of his arrest until he was turned over to the Geary County officers and was not prejudicial to him nor was it contradicted by him. Under the above authorities the trial court did not abuse its discretion in permitting the endorsement of the names of the witnesses on the information, and allowing one of them to testify.

The appellant next contends that the verdict was contrary to the law and the evidence. The...