State v. McKee
| Decision Date | 11 October 1930 |
| Docket Number | 29,087 |
| Citation | 131 Kan. 263,291 P. 950 |
| Parties | THE STATE OF KANSAS, Appellee, v. ELGIN MCKEE, Appellant |
| Court | Kansas Supreme Court |
Decided July, 1930.
Appeal from Mitchell district court; WILLIAM R. MITCHELL, judge.
Judgment affirmed.
SYLLABUS BY THE COURT.
1. LARCENY--Information--Amendment Naming Owner of Property. An information charging larceny of a hog may be amended before plea by inserting after the description of the property the name of the owner thereof.
2. SAME. The information was sufficient.
3. CRIMINAL LAW--Opening Statement by State as Basis for Acquittal. In a criminal prosecution, a demurrer to the opening statement of counsel for the state should be overruled where the statement neither shows that the defendant was not guilty nor discloses a bar to the prosecution.
4. LARCENY--Evidence--Admissibility to Prove Identity. Under a charge of the larceny of a hog, where the evidence tended to prove that a hog of the kind and character of the one charged to have been stolen was transported in an automobile evidence was admissible to show that hog bristles of the kind and color of those on the hog stolen were thereafter found in the automobile.
5. WITNESSES--Character Witness--Scope of Cross-examination. A witness who testifies to the good reputation of the defendant in a criminal action may be cross-examined concerning complaints against him which the witness may have heard prior to the time of his examination.
6. SAME--Cross-examination to Show Interest. Witnesses for the defendant in a criminal prosecution may be cross-examined concerning the interest they may have taken in the defense by way of furnishing bond and advancing attorneys' fees for the defendant.
7. LARCENY -- Sufficiency of Evidence. Under the evidence outlined in the opinion, it was not error to overrule the demurrer of the defendant to the evidence of the plaintiff.
8. SAME -- Defense of Alibi -- Instructions. Instructions concerning an alibi urged by the defendant as a defense have been examined, and no error has been found in them.
R. L. Hamilton, of Beloit, for the appellant.
William A. Smith, attorney-general, R. O. Mason, assistant attorney-general, and Ralph H. Noah, county attorney, for the appellee.
The defendant was convicted of stealing a hog, and appeals.
1. The defendant complains of an amendment of the information, which, from the judgment, appears to have been made before arraignment and plea. The information, as first filed, charged that the defendant stole a hog, but did not name its owner. The amendment to the information was that after the word "hog" in the information the following words were inserted, "the property of H. A. Murray."
Section 62-808 of the Revised Statutes reads:
In State v. Moberly, 90 Kan. 837, 136 P. 324, the law was declared to be that--
"A conviction for robbery will not be set aside merely because an amendment to the information, setting out the ownership of the property taken, was allowed after the defendant had pleaded to an original information in which such allegation was omitted." (Syl. P 1.)
There was no error in permitting the amendment.
No reason is given for the information being defective in any particular except as stated. The court is unable to find any defect in it.
3. At the close of the trial statement by the prosecution the defendant demurred thereto. That demurrer was overruled. Of that the defendant complains. The trial statement did not recite any fact which showed that the defendant was not guilty, or that there existed any bar to his prosecution. It was not error to overrule the demurrer of the defendant to the trial statement of the plaintiff.
4. The defendant complains of the admission of evidence on behalf of the plaintiff. The evidence complained of consisted of red hog bristles found in a Ford coupe out of which, the evidence tended to prove, the defendant had lifted a red hog weighing 275 pounds which he sold to a purchaser at Glasco, Kan., on the day after the hog alleged to have been stolen was last seen by its owner. The bristles had been found in the automobile about two months after the hog had been taken out of it. The evidence tended to prove that H. A. Murray had lost a red hog and that the bristles found in the car were of the same colors as those on the hog which had been lost. The evidence was admissible; its probative force was for the jury.
5. A witness who testified to the good reputation of the defendant was cross-examined concerning complaints that he might have heard against the defendant prior to the time of his examination. The defendant complains of that cross-examination.
In State v. McDonald, 57 Kan. 537, 46 P. 966, this court said:
"As the general reputation of any person is established by the opinions of witnesses as to the general estimation of his character, it is allowable to call their attention to reports inconsistent with such good reputation, and thus to weaken or qualify the testimony of such witnesses." (p. 539.)
Under this rule the cross-examination does not warrant a reversal of the judgment.
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...those on the hog stolen may be established to prove the identity of the hog sold by defendant and transported in said car. (State v. McKee, 131 Kan. 263, 261 P. 950.) Where defendant was charged with larceny of four tires, tubes and rims, evidence of spots of red paint on rims of the same s......
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...in the discretion of the trial court, and held, in this case we cannot say that such discretion was abused." (Syl. 3.) In State v. McKee, 131 Kan. 263, 291 P. 950, it said: "A witness who testifies to the good reputation of the defendant in a criminal action may be cross-examined concerning......
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