State v. Lowry

• Decision Date: 04 October 1947
• Docket Number: 36893.
• Citation: 185 P.2d 147,163 Kan. 622
• Parties: STATE v. LOWRY.
• Court: Kansas Supreme Court

185 P.2d 147

163 Kan. 622

STATE v. LOWRY.

No. 36893.

Supreme Court of Kansas

October 4, 1947

Appeal from District Court, Linn County; Harry W. Fisher, Judge.

Melvin Lowry was convicted of a felonious assault, and, from an order denying his motion for a new trial, he appeals.

Judgment reversed and a new trial granted.

Syllabus by the Court.

1. The general rule is that trial errors, not called to the attention of the trial court upon a motion for a new trial are not reviewable upon appeal.

2. Where, in a criminal trial, the court instructs the jury with reasonable adequacy as to a lesser offense of which the defendant might be found guilty if it is not convinced beyond a reasonable doubt that he is guilty of the offense or offenses charged, and the defendant does not object to such instruction nor ask that it be modified nor submit a substitute instruction, and the defendant is found guilty only of the lesser offense, a contention that the instruction given was incomplete will not be entertained upon appeal.

3. In a criminal prosecution in which the defendant was charged with kidnapping and felonious assault, the record discloses that following the disagreement and discharge of the jury at the first trial the trial court proposed that both the defendant and the complaining witness submit to tests by a 'lie detector,' which they agreed to do but did not agree that the results of such tests might be offered in evidence; that at the second trial the operator who conducted the tests was permitted, over objection of the defendant, to testify as to the results of the tests and give his interpretation of such results on questions bearing directly upon the guilt or innocence of the accused. Held: Such evidence, set out more fully in the opinion, was not admissible, over objection, and the rights of the defendant were prejudiced by its admission.

Luther W. Adamson, of Kansas City, Mo., and Karl V. Shawver, of Paola (Karl V. Shawver, Jr., of Paola, on the brief), for appellant.

John O Morse, Co. Atty., of Mound City (Edward F. Arn, Atty. Gen and Harold R. Fatzer, Asst. Atty. Gen., on the briefs), for appellee.

HOCH Justice.

A brief opinion was filed in this case on July 14, 1947, reversing the judgment because of error in the admission of incompetent evidence, granting a new trial and announcing that a further opinion would be filed later. At that time we directed the release of the appellant, upon bond, pending such new trial.

Appellant was convicted and sentenced under section 42 of the Crimes Act, G.S.1935, 21-435. He appeals from an order denying his motion for a new trial, asserting that the trial court erred in admitting incompetent evidence, in unduly restricting the cross-examination of witnesses for the state, and in failing to instruct the jury on the elements of section 42 of the Crimes Act. The contention principally stressed is that the appellant's rights were prejudiced by the admission of testimony as to the results of 'lie detector' tests upon both the defendant and the complaining witness.

Appellant was tried upon two counts, the first being for felonious assault, G.S.1935, 21-431, and the second for kidnapping as defined in section 21-449, G.S.1935. At the first trial the jury was unable to agree and was discharged. Upon the second trial, the defendant was found guilty of felonious assault under section 42 of the Crimes Act, G.S.1935, 21-435, and sentenced to imprisonment for a term not exceeding five years. Motion for a new trial was overruled, and this appeal followed.

The factual background of the questions here presented may be briefly stated. Appellant Lowry and the complaining witness lived about four miles apart on farms in Linn county. Lowry had asserted that one of his horses had been stolen about a year prior to the incident here involved.

Richards' story was that on the evening of April 24, 1946, when he was at his barn with a lantern to milk cows and do other chores, Lowry suddenly appeared carrying a shotgun, flashed a light upon him, and under threats upon his life forced him to walk across fields and pastures to the Lowry farm, continually threatening to shoot him, and that when they reached the Lowry place Lowry said, 'now, what did you do with my mare?'; that he answered, 'I never stole or never saw your mare'; that after renewed threats, Lowry shot him in the foot; that in order to avoid further injury he said he 'was passing out'; that after slapping him repeatedly, Lowry got a rope and tied his hands; then got a horse and helped him get on the horse, took him to the barn and forced him to sign two statements confessing that he had stolen the Lowry horse. The many other details of Richards' testimony need not be recited.

Lowry, of course, told an entirely different story. He testified that upon the night in question he went to his barn, after dark, to shoot at rates; spent about an hour there, then took his shotgun with a flashlight attached to the barrel and started back to the house; that he thought he heard a voice saying 'whoa,' that he walked to where some of his horses were about a half-mile from the barn; that he found some of his horses and then walked farther on and saw something white moving; that he turned his flashlight on and then saw someone leading one of his mares and yelled to him; that he then shot towards the ground; that Richards begged him not to call sheriff and said if he would not do it, he would sign a statement confessing that he was attempting to steal the horse when he was shot in the foot. The testimony of numerous witnesses called by both sides need not be narrated.

We first note appellant's contention that the trial court unduly limited cross-examination of some of the state's witnesses. That question is not here for review. If such cross-examination was unduly restricted to the prejudice of appellant, it was a trial error, and was not specified in the motion for a new trial. It is true that in the motion the defendant included as grounds for a new trial 'erroneous rulings of the court.' But he specifically enumerated the alleged erroneous rulings and did not include therein any reference to limitation of cross-examination. Not being called to the attention of the trial court on the motion for new trial, it is not reviewable on appeal.

The next contention of appellant is that the trial court failed to instruct the jury upon essential elements included in the crime defined in section 21-435, G.S.1935 (section 42 of the Crimes Act), for which he was convicted. The trial court did instruct the jury, at some length, that the defendant might be found guilty of the lesser offense defined in section 21-435, stating, inter alia, that under the statute, proof of intent to injure is not a necessary element of the offense. The defendant did not object to the instruction when given, did not ask any modification or clarification of it, and requested no substitute instruction as to the elements necessary to be shown to justify conviction under section 21-435. Appellant contends that such failure does not preclude review here, citing in support State v. Phelps, 151 Kan. 199, 97 P.2d 1105, and State v. Carr, 151 Kan. 36, 98 P.2d 393. The cases are not persuasive here. In the Phelps case, the trial court failed to give any instruction whatever as to a lesser offense--one which was most clearly indicated under the evidence. That is not the situation here, and the jury here did find the defendant guilty only of the lesser offense. A like distinction exists as to the Carr case. Appellant's contention on this point cannot be sustained.

We come to appellant's principal contention, relating to admission of evidence with reference to the 'lie detector' tests. Following the first trial, the trial court suggested to both defendant and complaining witness that they submit to 'lie detector' tests before the second trial. In compliance with the court's expressed desire, they submitted to such a test, but there was no stipulation nor agreement that testimony might be admitted concerning the results of such tests. Prior to the opening statement for the state, and in the absence of the jury, counsel for the defendant--aware that such testimony was to be offered by the state--argued that it was inadmissible, but the court stated that it considered the results of these tests to be of a scientific nature, to be competent 'to a certain extent,' and that the state's witness would be permitted to testify as to the tests made upon both the defendant and the complaining witness. Defendant's right to review on this question was further protected by timely objection when the evidence was offered and upon motion for a new trial.

The tests were made upon the same day upon both the defendant Lowry and the complaining witness Richards, by Phil Hoyt, captain of police in Kansas City, Missouri. Hoyt testified that he had been conducting tests with the lie detector since 1937, having taken training under Keeler of Northwestern University, who is largely credited with developing the instrument. As to his experience as an expert witness, he testified:

'I never did testify before as an expert in this particular branch of police work as to the result of a machine that was used to bolster up the testimony of a prosecuting witness in a case. In all these 2,400 cases that I gave I have testified merely on rebuttal and preliminary. The reason I went on rebuttal, it concerned confessions that persons made charged with crime after they had been subjected to this test.' (Italics supplied)

The witness described the 'lie detector' and its operation as follows:

'This instrument is an ordinary blood pressure cuff similar to that used by a physician used in taking blood pressure. You

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