State v. Murray

• Decision Date: 09 March 1968
• Docket Number: No. 44863,44863
• Citation: 200 Kan. 526,437 P.2d 816
• Parties: STATE of Kansas, Appellee, v. Robert MURRAY a/k/a Alfred W. Murray, Appellant.
• Court: Kansas Supreme Court

Page 816

437 P.2d 816

200 Kan. 526

STATE of Kansas, Appellee, v. Robert MURRAY a/k/a Alfred W. Murray, Appellant.

No. 44863.

Supreme Court of Kansas.

March 9, 1968.

Syllabus by the Court

1. In a prosecution for grand larceny the record is examined and it is held, there was no prejudicial error committed (1) in the prosecutor's closing argument, (2) in the instructions on circumstantial evidence and (3) in failing to instruct on a lesser included offense.

2. Even though not prejudicial this court disapproves any instruction by which the trial court attempts to stress the comparative weight or potency of any particular type of evidence.

3. Where two convictions grow out of the same act and are prosecuted in the same information, only one of them may be subsequently utilized as a previous conviction within the contemplation of the habitual criminal statute.

David C. All, Wichita, argued the cause and was on the briefs for appellant.

A. J. Focht, Deputy County Atty., argued the cause, and Robert C. Londerholm, Atty. Gen., and Keith Sanborn, County Atty., were with him on the briefs for appellee.

HATCHER, Commissioner.

This is an appeal from a conviction and sentence in a prosecution for grand larceny resulting from aiding and abetting in the theft of two men's suits.

The state's evidence disclosed facts substantially as follows. On the evening of May 5, 1966, the defendant, a Negro male, entered the J. C. Penney's Store in Eastgate Shopping Center in Wichita, Kansas. He was accompanied by a Negro woman and a Mexican girl. The three began moving about the racks on which men's suits were being displayed. The manager of the men's department became suspicious and placed the three under surveillance. The defendant picked up two dress shirts, paid for them without looking at the size and left the store. The two women left the store and it was noted that there was a wide space in the suit rack where there had been suits previously. The manager directed an employee to follow the women out of the store.

The employee followed the women and saw them walking in the mall area in a manner which he described as pigeon toed. He started running towards them and part of a suit dropped out from between the legs of the younger of the two women. He requested that they return to the store but they refused. He went to the store and started knocking on the window for assistance. He turned around in time to see that each woman was stuffing a suit into a trash can. He got the suits out of the can and began following the girls. They split up and he followed the younger girl for a while, with the manager, who had come on the scene, following the colored woman. When their paths crossed, the men switched women which left the employee following the colored woman. She turned around and slapped him about a bit, landing a few rights to his jaw.

The defendant then drove up in a pink and white Oldsmobile, got out of the car and the colored woman ran over and got in. The employee took out his pencil and paper and started to write down the license number of the car and the defendant knocked the pencil and paper from his hand, stating, 'Don't take my license number down.' At that time the younger of the two women arrived followed by the manager. The defendant and the woman then got into the car and left after being told by the manager to wait until the police arrived.

The defendant was informed against as for grand larceny; he was convicted, and sentenced under the habitual criminal act as for a third felony conviction. He has appealed alleging numerous trial errors.

The appellant first contends that the trial court erred in not granting a new trial because of prejudicial remakrs made in the prosecutor's closing argument.

We find no merit in the contention. The defendant would so construe the prosecutor's closing argument as to have him referring to the appellant's failure to testify. We do not so interpret the comments.

While counsel for appellant was making his closing argument to the jury he asked the question:

' * * * I will ask you if this defendant had something to do with this why weren't we permitted everybody to testify? We were told that he entered the store with two Negro women, one witness said that or maybe two. We heard another witness or two say, well, one was a Mexican female, one was a Negro female. But do we get the benefit of their testimony? No. * * *'

In his closing argument the prosecuting attorney answered as follows:

'* * * All right, Mr. Wendelken says you haven't heard all about this case, why didn't you hear from Pat Jackson and the others? They are available for them to call as well as us, the law provides the same treatment for them as it does for us.

'Mr. Wendelken: If it please the Court I object to this on the grounds it is contrary to the instructions.

'Mr. Focht: It is not contrary to the instructions or the law.

'The Court: No, I don't think it is either.

'Mr. Focht: And the reason I am not going to put them on is I'm not going to put on a witness that I don't think is going to tell the truth, that's why. And I assume that's why they weren't put on, period. Because they weren't trustworthy, because they are thieves, because they are not honest and because I wouldn't want this jury to make a determination based on their testimony because I wouldn't trust them. * * *'

It is clear that both attorneys were referring to the two women. The state could not have forced the appellant to testify as a witness. The appellant, through his counsel, asked the question and got his answer. He is not now in position to complain. (State v. Hartsock, 144 Kan. 227, 58 P.2d 1144.)

The appellant contends that the trial court erred in supplementing its instruction on circumstantial evidence by adding the following:

'In many cases circumstantial evidence is the most convincing of all evidence; more convincing than direct testimony. A witness may be mistaken, self-deceived or untruthful. Facts and circumstances are definite and impartial.'

We cannot find how, under the circumstances in this case, the appellant was in any way prejudiced by the instruction. The circumstantial evidence was to be applied equally in considering innocence or guilt.

The appellant relies on State v. Scott, 117 Kan. 303, 235 P. 380. In that case the trial court supplemented its instruction on circumstantial evidence as follows:

"And I further instruct you that, when the evidence in a case consists of a chain of well authenticated and proven circumstances, it is often more convincing and satisfactory and gives a stronger ground of the assurance of the defendant's guilt than the direct testimony of witnesses, unconfirmed by circumstances." (p. 324, 235 P. p. 390.)

This court considered the instruction and stated:

'This paragraph is objected to, first, because it places circumstantial evidence upon a higher plane than positive evidence, and second, because it deals with circumstantial evidence only as it applies to guilt, when in fact it may be as potent to prove innocence as it is to prove guilt. Both points are well taken. The paragraph should not have been included in the instructions. An instruction in the same language was held nonprejudicial in State v. Evans, 115 Kan. 538, 540, 224 P. 492, where is (sic) was construed as meaning that 'well authenticated...