State v. Myrick

• Court: Kansas Supreme Court
• Writing for the Court: FATZER
• Citation: State v. Myrick, 181 Kan. 1056, 317 P.2d 485 (Kan. 1957)
• Decision Date: 09 November 1957
• Docket Number: No. 40750,40750
• Parties: The STATE of Kansas, Appellee, v. Robert MYRICK, Appellant.

Page 485

317 P.2d 485

181 Kan. 1056

The STATE of Kansas, Appellee, v. Robert MYRICK, Appellant.

No. 40750.

Supreme Court of Kansas.

Nov. 9, 1957.

Syllabus by the Court

1. A defendant's voluntary pretrial statement to the county attorney in the nature of an admission or confession, to be admitted in evidence, must relate to the offense in question. While such statement may include reference to a prior conviction of the defendant, as well as to the offense charged, that fact does not prevent the statement being received in evidence, under proper instructions, where there can be no separation of the relevant from the irrelevant portions. Under those circumstances, the entire statement must be received. Where, however, the relevant portions can be separated from the irrelevant, this must be done, and only that part of the statement may be admitted which is relevant to the issues on trial.

2. The record in a criminal case examined and held: The district court erred in overruling the defendant's objection to that portion of his voluntary statement to the county attorney relating to his prior conviction of grand larceny, since such portion was irrelevant, and could and should have been separated from the relevant portion pertaining to the offense charged. The admission of the statement in its entirety was prejudical to the defendant and its prejudicial effect was not cured by the court's instruction to the jury as more fully set forth in the opinion.

Michael A. Barbara, Topeka, argued the cause, and Robert W. Domme, Topeka, was with him on the briefs, for appellant.

Myron L. Listron, Asst. County Atty., Topeka, argued the cause and John Anderson, Jr., Atty. Gen., and Roy L. Bulkley, County Atty., Topeka, were with him on the briefs for appellee.

FATZER, Justice.

The sole question here presented is whether the written statement of the defendant was admissible in the state's case in chief, where a portion of it referred to an unrelated prior conviction of larceny which could have been separated from the relevant parts of the statement.

Following his arrest for manslaughter in the first degree, the defendant made a statement to Assistant County Attorney Listrom detailing the events leading up to his assault upon the decedent. It was in question and answer form, several pages in length, and was taken before an official court reporter in the presence of two police officers. The following questions and answers concluded the statement:

'A. Now, what trouble have you been in before, Bob? You were up for larceny one time? A. Yes.

'Q. Hutchinson? A. Yes.

'Q. You have not been in any trouble since then, other than minor stuff? A. No.

'Mr. Listrom: Anything else?

'Mr. Hartner: No.

'Mr. Listrom: Okay, Bob, is that fair enough? A. Yes.

'Mr. Listrom: That's all.'

During the course of the trial and in the state's case in chief, the defendant's statement was offered in evidence in the absence of the jury. An objection was interposed to the admission in evidence of that portion quoted above upon the ground that proof of defendant's former conviction was incompetent to prove the offense charged; that its only purpose was to test his credibility not then in issue; and, that portion objected to could be separated from the relevant portions bearing directly upon the offense charged. The state conceded that defendant's prior conviction was not similar nor related to the offense charged. The defendant made no contention the statement was not given voluntarily nor that relevant portions concerning the offense charged were inadmissible. The district court concluded that the entire statement was admissible since the defendant raised no objection to its voluntariness, and it was then read in toto to the jury over a repeated objection of the defendant.

The defendant did not testify in his behalf. Among other things, the district court instructed the jury to disregard any statements the defendant may have made concerning any prior conviction for crime and that any such statements might not be considered as any proof of the guilt of the defendant.

Following a verdict of guilty of manslaughter in the fourth degree and the overruling of his motion for a new trial, the defendant has appealed.

The well-recognized general rule prevailing in this and other jurisdictions is that evidence is inadmissible to prove that the accused has been convicted of another crime independent of, and unrelated to, the one on trial; it is not competent to prove one crime by proving another (State v. Reed, 53 Kan. 767, 774, 37 P. 174; State v. Wheeler, 89 Kan. 160, 130 P. 656; State v. Frizzell, 132 Kan. 261, 295 P. 658; State v. Owen, 162 Kan. 255, 176 P.2d 564; State v. Winchester, 166 Kan. 512, 514, 515, 203 P.2d 229; State v. Fannan, 167 Kan. 723, 207 P.2d 1176; State v. Palmer, 173 Kan. 560, 251 P.2d 225; State v. Aldrich, 174 Kan. 335, 225 P.2d 1027; 22 C.J.S. Criminal Law § 682, p. 1084; 20 Am.Jur., Evidence, § 494, p. 428). All evidence, to be admissible, must be relevant, and the general rule is based upon the principle that evidence of an unrelated prior conviction is irrelevant to prove the offense charged, and has a tendency to prejudice the minds of the jury against the accused and to predispose them to a belief in his guilt. Further, that evidence of a prior conviction, when offered in the state's case in chief, violates the rule of policy which forbids the state initially to attack the character of the actused, and that which prohibits proof of bad character by particular acts (1 Wharton's Criminal Evidence, 12th ed. § 232, p. 492). The rule against the admissibility of such evidence should be strictly enforced (State v. Frizzell, supra, Syl. p1).

To this general rule there are several distinct exceptions which have been permitted from absolute necessity, to aid in the detection and punishment of crime (1 Underhill's Criminal Evidence, 5th ed. § 206, p. 464; 1 Wharton's Criminal Evidence, 12th ed. § 233, p. 498; 22 C.J.S. Criminal Law § 683, p. 1089). One is that proof of an independent crime is admissible in the discretion of the court, and may be received in the state's case in chief, under proper instructions, if it is relevant to the proof of the guilt of the defendant for the crime with which he is charged. To be relevant it must prove or tend to prove identity of person or crime, to prove scienter or guilty knowledge, to prove intent, to show inclination or motive, to prove plan, scheme or system of operation, to prove malice and to rebut special defenses (State v. King, 111 Kan. 140, 206 P. 883, 22 A.L.R. 1006; State v. Stanley, 123 Kan. 113, 254 P. 314; State v. Robinson, 125 Kan. 365, 263 P. 1081; State v. Reuter, 126 Kan. 565, 268 P. 845; 83 A.L.R. 603 n.; State v. Turner, 128 Kan. 376, 278 P. 58; State v. Caldwell, 131 Kan. 622, 293 P. 389, 105 A.L.R. 1290; State v. Callabresi, 135 Kan. 463, 11 P.2d 725; State v. Gwynne, 142 Kan. 13, 45 P.2d 849; State v. Grey, 154 Kan. 442, 445, 119 P.2d 468; State v. Owen, supra). See, also, 2 Hatcher's Kansas Digest (Rev. ed.) § 268, p. 237. If the evidence is competent, material and relevant to the issues on trial, it is not rendered inadmissible because it may show that the defendant is guilty of another crime, or has been previously convicted. Such evidence is not admitted because it is proof of the other crime, but because of its relevancy to the charge on trial (1 Wharton's Criminal Evidence, 12th ed. § 233, p. 498). While prejudice of other crime or prior conviction is not removed where such evidence is found to be relevant under the exception to the general rule, courts have declared its relevancy outweighs the prejudice, and it is, therefore, proper for the jury's consideration under appropriate instructions.

Another long-established rule in this jurisdiction, which permits the state to refer to a defendant's prior conviction is when he takes the stand and offers himself as a witness in his own behalf. In that event, he may be 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 then on trial (State v. Pfiefer, 143 Kan. 536, 539, 56 P.2d 442; State v. Story, 144 Kan. 262, 58 P.2d 1090; State v. Osburn, 171 Kan. 330, 333, 232 P.2d 451). Here, that rule is inapplicable because the defendant was not a witness in his own behalf.

Counsel does not cite, and we find no decisions, where this court has previously passed directly upon the question of the admissibility of a defendant's voluntary pretrial statement containing reference to prior conviction unrelated to the offense charged. However, we find the general rule to be that a statement in the nature of an admission or confession, to be admissible, must relate to the offense in question. While such statement may include reference to prior conviction of the defendant, as well as to the offense charged, that fact does not prevent the statement being received in evidence for consideration by the jury under proper instructions, where there can be no separation of the relevant from the irrelevant. Under those conditions, the entire statement must be admitted. Where, however, the relevant parts can be separated from the irrelevant, this must be done, and only that part of the statement may be admitted which is competent and relevant to the issues on trial (Monk v. State, 258 Ala. 603, 606, 64 So.2d 588; Brown v. State, 232 Ind. 227, 234, 235, 111 N.E.2d 808; Fehlman v. State, 199 Ind. 746, 753, 161 N.E. 8; People v. Loomis, 178 N.Y. 400, 406, 70 N.E. 919; People v. Spencer, 264 Ill. 124, 106 N.E. 219; Bode v. State, 80 Neb. 74, 78, 79, 113 N.W. 996; State v. Boswell, 73 R.I. 358, 364, 56 A.2d 196; State v. Underwood, 75 Mo....