State v. Montgomery
| Citation | 175 Kan. 176,261 P.2d 1009 |
| Decision Date | 10 October 1953 |
| Docket Number | No. 39054,39054 |
| Parties | STATE v. MONTGOMERY. |
| Court | United States State Supreme Court of Kansas |
Syllabus by the Court.
The record in a criminal prosecution for burglary and larceny while engaged in the commission of the burglary examined, and held, that under the facts, conditions and circumstances described and set forth in the opinion the trial court did not err in overruling defendant's motion for new trial.
Max Regier, of Newton, argued the cause and was on the briefs for appellant.
Morris Moon, County Atty., El Dorado, argued the cause, and Harold R. Fatzer, Atty. Gen., and Robert M. King, El Dorado, Asst. County Atty., were with him on the briefs for appellee.
Defendant, L. J. Montgomery, was arrested, tried, convicted and sentenced on a charge of commission of the crime of burglary and larceny in connection with the burglary, G.S.1949, 21-524. The appeal is from an order of the trial court overruling his motion for new trial and the only claim of error relied on respecting that ruling relates to the admission of certain evidence.
The issue raised on appeal is of such nature that, except for those essential to a proper understanding of what the case is about, the pictorial facts of record are of little consequence and need not be labored. For informative purposes it suffices to say the record discloses that on the late evening of February 8th or early morning of February 9, 1952, the Andover School Building, located in Butler County, Kansas, was broken into, a safe located therein forced open, and the sum of $732, the property of the Andover Public Schools, removed therefrom; that on the 10th day of February the sheriff of Butler County was informed that a certain automobile had been observed in Rose Hill, a small town located some ten miles south of Andover, on the evening of February 8th and was given a description of the automobile and the number of its license tag; that on February 11, after having checked the license tag number with other officials and having found that the automobile was registered in the name of L. J. Montgomery, such sheriff went to appellant's home in Newton, Kansas, where he found the automobile and license tag theretofore described to him and saw three tool boxes in the automobile; that appellant, who was home at the time, said he was a plumber and that the three tool boxes belonged to him; and that immediately thereafter the sheriff arrested the appellant and took him to the county seat of Butler County where he was eventually tried by a jury and found guilty in district court of the crime referred to in the first paragraph of this opinion.
We now turn to evidence having more direct application to questions raised on appeal. During the course of the trial the court permitted the state to introduce the lock pin or shaft of the burglarized safe, a taper punch, claimed to have been used in breaking the lock of such safe, and expert testimony by Claude Nichols, Forensic Technician for the Wichita, Kansas, Police Department, to the effect that after comparing marks made by the punch with a mark that was on the pin or shaft at the time such articles were brought to him for examination he was of the definite opinion that the punch was the instrument which had made such mark on the pin or shaft.
The record only partially discloses the foundation laid by the state for the introduction of the foregoing evidence. Limited to portions abstracted, and without attempting to relate everything said by witnesses with respect to the subject, it shows:
Additional testimony by the sheriff of Butler County to the effect that on the day after he arrested appellant he went back to the latter's home where he picked up one of the three tool boxes he had seen in the automobile the night before and brought it to his office in Eldorado; that it was the box which contained small tools, including several punches; that the box and all tools found therein were in his possession and under his supervision until the next day when he took them to the Andover school house; that on reaching that point he reexamined the safe and came to the conclusion some of the tools could have been used in the burglary; that thereupon he called. L. J. Wheeler, Police Investigator for the Wichita Police Department, who immediately came to Andover; that he then delivered several of the tools to such investigator (including the taper punch in question), who examined the safe, took out the damaged lock, including the lock pin or shaft, and then left for the Wichita Police Laboratory with such tools and parts of the damaged lock in his possession.
L. J. Wheeler testified that he received the taper punch, a center punch and a cold chisel from the sheriff of Butler County, that he removed the entire combination lock mechanism from the safe and then took such articles back to the police laboratory at Wichita where he individually marked them for identification, placed them in a locker, which he locked with a padlock to be opened by the Laboratory Technician (Claude Nichols), and that subsequently he was personally present and participated in a microscopic examination of such articles conducted by that officer. This witness also stated that in disassembling the lock of the safe he made a mark on the lock pin or shaft with one of the punches but it appears from the record that such mark was not the one referred to and identified in the testimony of the...
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State v. Hatton
...839 (1959); State v. Hancock, 245 Or. 240. 421 P.2d 687 (1966); Wilson v. State, 215 Ga. 782, 113 S.E.2d 447 (1960); State v. Montgomery, 175 Kan. 176, 261 P.2d 1009 (1953). Appellant Hatton has cited cases involving the attribution of the acts of one co-conspirator to another in support of......
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State v. Jones, 44964
...his argument that proof of possession of instruments with which to commit crimes was not proper, is ill-founded. See State v. Montgomery, 175 Kan. 176, 180, 261 P.2d 1009; State v. Omo, 199 Kan. 167, 428 P.2d 768, and 2 Wigmore on Evidence, 3d ed., § 238, p. 33. We are of the opinion the di......
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State v. Hess
...establishing that the trial court erred in granting the instant motion in order to here prevail. See, also, State v. Montgomery, 175 Kan. 176, 261 P.2d 1009, where, in dealing with the defendant's appeal from an order overruling his motion for a new trial and in discussing the reasons why t......