State v. McCorvey, 44673

• Decision Date: 10 June 1967
• Docket Number: No. 44673,44673
• Citation: 428 P.2d 762,199 Kan. 194
• Parties: STATE of Kansas, Appellee, v. Elijah Morris McCORVEY, Appellant.
• Court: Kansas Supreme Court

Page 762

428 P.2d 762

199 Kan. 194

STATE of Kansas, Appellee, v. Elijah Morris McCORVEY, Appellant.

No. 44673.

Supreme Court of Kansas.

June 10, 1967.

Rehearing Denied Aug. 31, 1967.

Syllabus by the Court

1. The order in which competent and relevant testimony is admitted during the trial is largely within the discretion of the district court, and, unless it appears that such discretion has been abused, no error lies.

2. In a criminal action, evidence of similar but independent offenses is admissible in the discretion of the district court (K.S.A. 60-445), and may be received in the state's case in chief or upon cross-examination of the defendant when he becomes a witness in his own behalf, when relevant to prove some other material fact including motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident. (K.S.A. 60-445.)

3. K.S.A. 60-445 defines the purpose for which evidence of similar but independent offenses may be considered, and the district court should instruct the jury as to the limited purpose for which such evidence may be considered.

4. The record in a criminal action in which the defendant was convicted by a jury of the crime of grand larceny, is examined, and it is held: The district court did not err in the admission of evidence of similar but independent offenses on cross-examination of the defendant, or in overruling his motion for a new trial.

Jim Lawing, Wichita, argued the cause, and Payne H. Ratner, Louise Mattox, Payne H. Ratner, Jr., Cliff W. Ratner, R. R. Barnes and Edmond L. Kinch, Wichita, were with him on the briefs, for appellant.

R. K. Hollingsworth, Deputy County Atty., Wichita, argued the cause, and Robert C. Londerholm, Atty. Gen., and Keith Sanborn, County Atty., Wichita, were with him on the briefs, for appellee.

FATZER, Justice.

The defendant, Elijah Morris McCorvey, was tried by a jury and found guilty of the crime of grand larceny (K.S.A. 21-533), and was sentenced to confinement in the Kansas State Penitentiary for a period of fifteen years pursuant to the Kansas Habitual Criminal Act. (K.S.A. 21-107a.) He has appealed from the judgment and sentence and the order overruling his motion for a new trial.

The state's evidence was to the effect that McCorvey, who lived in Oklahoma City, Oklahoma, and a confederate went into Dillon's Supermarket at 1900 East Pawnee, Wichita, Kansas, on August 4, 1964, where they committed grand larceny. The evidence showed that, in the parlance of peace officers, the defendant was guilty of 'tilltapping.' The clerk at the check-out counter testified the defendant's confederate came to her stand to pay for two packages of cigarettes and laid a dollar bill on the counter near the cash register; that as she rang up the sale the confederate moved down to the far end of the counter where groceries are sacked, and threw out some change on the counter, mostly in pennies, stating he had the correct change to pay for the cigarettes; that the cash register remained open while she was counting the change, and while her attention was thus diverted she had the feeling there was something behind her; that she looked around and saw the defendant behind her and he had taken all of the 'fives and tens' in the cash register; that no one else was standing at her check-out counter and she told the store manager, who was working in his office at the check-cashing booth a few feet away, she had been robbed; that she heard the store manager tell the defendant 'to put the money down' and she then called the police.

The check-out clerk and the manager identified the defendant in open court as the man who reached into the cash register, removed the large amount of currency, and dropped it when running from the store.

Although the county attorney was aware the defendant had previously been convicted of criminal offenses similar to the crime charged, he did not offer evidence of such convictions in the state's case in chief as relevant to prove motive, intent, plan or identity of the defendant. (K.S.A. 60-445.)

At the trial, after giving proper notice, the defendant testified in support of his plea of alibi. (K.S.A. 62-1341.) Prior to the defendant taking the stand, his wife, Salette McCorvey, testified she lived with the defendant in Oklahoma City; that they had been married for sixteen years and had three children; that the day before the alleged offense they had returned from a three-weeks vacation in California; that she owned a 1963 Oldsmobile and a 1962 two-tone Blue and White Ford; that on the day of the alleged offense the defendant spent the entire day at the home of their mutual friend, Olivia Powers, in Oklahoma City; that she talked to the defendant on the telephone around noon; that he returned home about 5:30 p. m. and that she particularly rememberd the day because on his arrival home the defendant told her that Loretta Calhoun, a friend of theirs, had been shot and killed in Oklahoma City at about 5:00 p. m. Her testimony was corroborated in detail by Olivia Powers.

Upon taking the witness stand, the defendant denied he was in Wichita on August 4, 1964, and testified generally to the same facts of his whereabouts on that day theretofore testified to by his wife and Olivia Powers. On cross-examination, the county attorney asked the following question:

'Now Mr. McCorvey, I would like to ask you if it is not true that in 1948, in the State of Ohio, you were * * *' At this point, counsel for the defendant approached the bench and informed the court the state was attempting to inquire into a prior conviction which occurred in Ohio in 1948, and objected upon the grounds that K.S.A. 60-421 prohibited the testimony unless the state could show an exception thereto. The objection was overruled and the court permitted the county attorney to elicit testimony from the defendant which showed the jury he had been convicted of grand larceny in Ohio in 1948, and had served time on that conviction.

The county attorney proceeded with that line of questioning and asked the defendant if it were not true that he pleaded guilty to petty larceny at Emporia in 1960, and that the charge involved was a 'till-tapping' charge. The defendant answered, 'I believe that was the nature of it; a larceny charge.' The county attorney inquired if it were not true that he pleaded guilty to a petty larceny charge in Norman, Oklahoma, in 1962, to which the defendant replied in the affirmative. The county attorney then inquired if it were not true that he either pleaded guilty or was convicted of the crime of petty larceny at Stillwater, Oklahoma, in 1962, to which the defendant replied in the affirmative. The county attorney further inquired if he had pleaded guilty to larceny of money in Oklahoma City in 1962, to which the defendant replied in the affirmative, and further stated:

'I don't remember that incident. It may have been in July but if you mean do I have a police record, yes. All these things you mentioned to me I have either paid for already or-I don't mind answering your questions if they have anything to do with this, but if you trying to establish that I have a police record-yes, I have been arrested before.'

The defendant contends he did not introduce any evidence which had the sole purpose of supporting his credibility or to prove a trait of his character and that when the state failed to introduce evidence of his prior convictions of larceny and 'tilltapping' in its case in chief to establish an element of the offense with which he was charged, it was prejudicial error for the district court to permit the county attorney to cross-examine him about such prior convictions after he testified in his own defense in support of his plea of alibi. He argues the state's corss-examination not only attacked his credibility and character in violation of K.S.A. 60-421 and 60-422, but with the enactment of the Uniform Rules of Evidence in 1963, the rule that when a defendant in a criminal action takes the witness stand in his own defense he thereby places his character and credibility in issue and is subject to being cross-examined with the view of impairing his credibility concerning previous offenses and subjects involving him in degradation and disgrace although they do not pertain to the charge for which he is on trial, was abolished by K.S.A. 60-421. The statute reads:

'Evidence of the conviction of a witness for a crime not involving dishonesty or false statement shall be inadmissible for the purpose of impairing his credibility. If the witness be the accused in a criminal proceeding, no evidence of his conviction of a crime shall be admissible for the sole purpose of impairing his credibility unless he has first introduced evidence admissible solely for the purpose of supporting his credibility.' (Emphasis supplied.)

The pertinent part of K.S.A. 60-422 reads:

'As affecting the credibility of a witness * * * (d) evidence of specific instances of his conduct relevant only as tending to prove a trait of his character, shall be inadmissible.' (Emphasis supplied.)

The defendant further argues that the procedural framework of the Uniform Rules of Evidence is here a principal element of the substantive legislative system and that the procedures prescribed create substantive rights and impose limitations upon a county attorney by requiring that he may not submit a part of the state's evidence in its case in chief and then lie in wait for the defense to place the defendant upon the witness stand to tell his side of the story, and prove the rest of the state's case through cross-examination of the defendant. He further argues that the Uniform Rules of Evidence as applied to criminal proceedings did not materially change the case law as it was developed in Kansas prior to its enactment and that the evidence of crimes and prior convictions of the accused when relevant to prove a material fact such as intent, plan, knowledge or...