State v. McLaughlin, 46128

• Decision Date: 12 June 1971
• Docket Number: No. 46128,46128
• Citation: 485 P.2d 1360,207 Kan. 594
• Parties: STATE of Kansas, Appellee, v. Henry D. McLAUGHLIN, Appellant.
• Court: Kansas Supreme Court

Page 1360

485 P.2d 1360

207 Kan. 594

STATE of Kansas, Appellee, v. Henry D. McLAUGHLIN, Appellant.

No. 46128.

Supreme Court of Kansas.

June 12, 1971.

Syllabus by the Court

1. In a criminal action on a motion for change of venue the burden of proof is upon the defendant to make it affirmatively appear that in the county in which the cause is pending there exists such prejudice as to make it reasonably certain the defendant will be denied a fair trial. Failing in such proof the defendant cannot be heard to complain of the trial court's order overruling his motion.

2. In a criminal action on a motion for change of venue the state is required to produce no evidence refuting that of the defendant, particularly where the defendant fails to sustain the burden of proof cast upon him to show prejudice in the community.

3. In a criminal action the uncorroborated testimony of an accomplice, if otherwise sufficient, will sustain a verdict of guilty. The credence to be given the evidence is a matter for the determination of the jury.

4. In a criminal action the trial court instructed the jury explaining the term 'reasonable doubt,' as more particularly stated in the opinion, and it is held the instruction was not erroneous.

Cliff W. Ratner, of Ratner, Mattox, Ratner, Ratner & Barnes, Wichita, argued the cause, and Patrick L. Dougherty, Wichita, and Walter F. McGinnis, of McGinnis & McGinnis, ElDorado, were with him on the brief for appellant.

John E. Sanders, County Atty., argued the cause, and Vern Miller, Atty. Gen., was with him on the brief for appellee.

SCHROEDER, Justice:

This is a criminal action wherein the defendant was convicted of grand larceny for cattle rustling contrary to K.S.A. 21-533 and sentenced pursuant to K.S.A. 21-534 in the district court of Greenwood County, Kansas, on May 6, 1970. Appeal has been duly perfected.

Trial errors are asserted on appeal for a reversal of the judgment.

The facts in the case are essentially the same as those stated in State v. McLaughlin, 207 Kan. 584, 485 P.2d 1352, because they arise from the same occurrence. In that case Mae McLaughlin, the wife of the appellant herein, was convicted of cattle rustling.

On the 23rd day of July, 1967, three 4-H steers, one belonging to Kenneth Pike and two belonging to his daughter, disappeared from a barn on property leased by Pike which was located one mile south of the Farmington school house in Greenwood County, Kansas. Two of the steers were Angus, weighing approximately 950 pounds, and one of the steers was a Hereford, weighing approximately 1,000 pounds. They were valued at somewhere between $250 and $300.

The principal witness upon which the state relied to prove the offense was Freddie Glenn Pope, a confessed accomplice in the crime, with a long prior criminal record. Pope testified the cattle were taken while he and Johnnie F. Wyss, who also confessed to the crime, and Henry D. McLaughlin (defendant-appellant) and his wife, Mae McLaughlin, were on a trip looking for antiques in abandoned farmhouses. Pope testified that upon stopping at a vacant house, the four discovered the three steers in a barn. He said:

'There were weeds growing up all around it and you could tell from the driveway it hadn't been driven frequently. I told Mr. McLaughlin it looked to me like the cattle were hid there. I couldn't understand why three animals would be at a vacant farmhouse and one being tied up to keep it from jumping the fence or something similar to such. I told him it looked to me like someone stole the cattle and hid them there until they could dispose of them. Mr. McLaughlin said, 'Do you think we can steal them from them?' I told him if we had the means to haul them off we could.'

After planning to take the cattle the four left to get a four-horse trailer owned by James W. Frisbie to move the cattle. Upon returning to the McLaughlin home near Rosalia, Kansas, Pope and Wyss set out to get Frisbie's trailer and hitch it to Pope's truck. When this was accomplished, Pope and Wyss returned to the McLaughlin residence pulling the horse trailer. Between the hours of 8 and 9 p. m. on Sunday, July 23, 1967, Pope left the McLaughlin residence in the McLaughlin car with the appellant and his wife, and Wyss left at the same time driving the pickup truck and pulling the trailer.

Upon arrival at the scene the three cattle were loaded in the trailer, and a post-hole auger was taken from the shed and placed in the pickup, the appellant assisting the other two men. Then they all returned to the Frisbie residence near Wichita in Buttler County and unloaded the steers in Frisbie's barn.

Pope made arrangements the next day over the telephone with the Haysville packing plant at Haysville, Kansas, to have the three steers slaughtered and packaged. Wyss and Pope delivered the steers to the locker plant that same morning, Monday, July 24, 1967, at approximately 10 a. m. The animals were checked into the plant as Pope No. 1, Pope No. 2 and Pope No. 3.

Pope told Mr. Acord, the owner of locker plant, over the telephone that he wanted the hides returned and he made the necessary arrangements. Later on that same day between 2 and 3 p. m. Pope, the appellant and Frisbie returned to the locker plant for the hides, according to Pope's testimony. The three men took the hides in the McLaughlin car south to Sumner County and dumped them out.

Approximately ten days later Pope was advised the meat had been processed, and he returned to the locker plant along with Frisbie and his wife and the appellant and his wife to pick up the meat. Pope was charged with the crime of grand larceny of neat cattle in Greenwood County and pleaded guilty to the charge.

Wyss also pleaded guilty to the offense and was sentenced to the Kansas State Penitentiary. He was an inmate at that institution when he testified at the trial of this case. According to Wyss, he and Pope stole the cattle and the McLaughlins were not involved.

Walter Acord, the owner of the Haysville packing plant, testified that Pope brought the three animals to his locker plant, which were slaughtered and processed, and that on or about August 4th or 5th, three men and a woman came to the locker plant to pick up the processed meat, identifying the appellant and Pope as two of the men.

Hershal Martin, employed by Mr. Acord on July 24, 1967, at the locker plant in Haysville, said he knew Pope by sight and that Pope returned to the locker plant for the hides after 2 p.m. on the 24th day of July. He testified two men returned with Pope to pick up the hides and he identified Wyss as one of them. Martin threw the hides into the trunk of a car.

The appellant testified he did not take the cattle, but was approached by Pope and Wyss at the Frisbie residence on Sunday, the 23rd day of July, 1967, when Pope offered to sell him a beef. He further testified he viewed the cattle at the barn where they were located before they were taken and told Pope he would buy one. He also told Frisbie they were good butchering cattle and Frisbie said he would purchase one. The appellant testified Pope told him the cattle belonged to his mother and they had to be moved or sold. The appellant testified he was not present when the cattle were taken and knew nothing more about them until he was advised by Pope they were butchered and processed, and that he paid Pope $200 for his beef and picked up his beef at the locker plant. The appellant said he was not present when the hides were picked up; that he was at the Haysville locker plant only one time-when he picked up the processed beef.

Evidence of the $200 check given by the McLaughlins to Pope, and its alteration by Mae McLaughlin after clearing the bank, was not presented in the trial of the appellant. This evidence was presented only in the trial of the appellant's wife, Mae McLaughlin.

Frisbie was arrested on charges arising out of the incident here related in Butler County, and was discharged at a preliminary hearing.

The appellant challenges the trial court's order overruling his motion for change of venue. To support his motion the appellant presented one affidavit by a citizen of Greenwood County to the effect that the trial was a foregone conclusion, that the minds of the people in the community were made up, and that there was no possibility of an acquittal. The appellant argues there were twenty-one prospective members of the jury panel who had heard of the case, and four of those persons admitted they had formed an opinion. Six of the persons who actually served on the jury had heard of the case but formed no opinion. One person who served on the jury had cattle of her own stolen about the same time the crime in this case is alleged to have been committed.

It has long been the law of Kansas that a change of venue in a criminal case lies within the sound discretion of the trial court. Before a change of venue to another county can be granted, it must affirmatively appear that in the county in which the cause is pending there exists such prejudice as to make it reasonably certain the defendant will be denied a fair trial. The ruling of the trial court on this question will not be disturbed if supported by competent evidence and if there is no showing of prejudice to the substantial rights of the defendant. (Davis v. State, 204 Kan. 816, 466 P.2d 311, and cases cited therein.)

The failure of the defendant in a criminal action to present affirmative evidence that prejudice existed in the community so as to make it reasonably certain he could not obtain a fair trial, requires a conclusion that his evidence was totally and completely insufficient to permit the district court to order a change of venue. (State v. Poulos, 196 Kan. 253, 411 P.2d 694, cert. den. 385 U.S. 827, 87 S.Ct. 63, 17 L.Ed.2d 64.)

Furthermore, prejudice must be established 'not as a matter of speculation but as a demonstrable reality.' (Woods v. Munns, 347 F.2d 948, 951 (10th Cir. 1965).)...