State v. Nicolay, 45137
| Decision Date | 07 December 1968 |
| Docket Number | No. 45137,45137 |
| Citation | 447 P.2d 403,202 Kan. 209 |
| Parties | STATE of Kansas, Appellee, v. Oliver NICOLAY, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. The granting of a continuance in a criminal prosecution rests largely in the discretion of the trial court and its ruling will not be disturbed unless it affirmatively appears that such discretion has been abused to such an extent that the appellant's substantial rights have been prejudiced.
2. When considering the sufficiency of circumstantial evidence to sustain a conviction of crime, the question before this court on appeal is not whether the evidence is incompatible with any reasonable hypothesis except guilt, which is a jury question, but the function of this court is limited to ascertaining whether there was a basis in the evidence for a reasonable inference of guilt.
3. In a prosecution for the theft of cattle the record is examined and it is held, the trial court did not err in refusing a continuance, and there was substantial competent evidence to sustain the verdict.
Richard O. Skoog, Ottawa, argued the cause and was on the briefs for appellant.
Myron S. Steere, County Atty., argued the cause, and Robert C. Londerholm, Atty. Gen., was with him on the briefs for appellee.
HATCHER, Commissioner.
This is an appeal from a conviction of the theft of thirteen head of Holstein heifers resulting in a sentence for grand larceny.
Repetition will be avoided if we present the pertinent facts as we discuss the issues raised by appellant.
The appellant first contends that the trial court erred in failing to grant a continuance of the trial of the case.
We have adhered to the very general rule that the granting of a continuance in a criminal prosecution rests largely in the discretion of the trial court. Its ruling will not be disturbed unless it affirmatively appears that such discretion has been abused to such an extent that the appellant's substantial rights have been prejudiced. (State v. Smith, 173 Kan. 807, 252 P.2d 917; State v. Morrow, 179 Kan. 63, 292 P.2d 1094; State v. Earley, 192 Kan. 144, 386 P.2d 221; State v. Brown, 193 Kan. 654, 396 P.2d 401; State v. Dickson, 198 Kan. 219, 424 P.2d 274.)
It appears that the appellant was charged by information on November 14, 1966. At the preliminary hearing the appellant's retained counsel examined the state's witnesses. On January 3, 1967, the appellant appeared with his retained counsel, waived arraignment and formal reading of the information. The case was set for trial on February 7, 1967. On January 31, 1967, appellant's counsel announced to the court that he was withdrawing from the case. The court then appointed the same counsel to represent the appellant. Appointed counsel then made an oral motion for a continuance which was denied.
The day before the case was set for trial the appellant filed a written motion for a continuance suggesting that--
'* * * the defendant or someone on his behalf had been unable to find or discuss a possible alibi plea with possible witness in Martin City, Missouri, where the defendant claimed his truck had been for a considerable period of time between the hours of 4:00 p. m. on November 14, 1966, and 8:00 a. m. on November 15, 1966, during which period of time the thirteen (13) Heifers of Arlon Jones were allegedly stolen. * * *'
The trial court overruled the motion stating:
We are forced to agree with the trial court. The facts speak for themselves and need no elaboration. No attempt has been made by the appellant to show that he was prejudiced by the denial of the continuance. Under the circumstances we find no basis for concluding that the trial court abused its discretion.
The appellant further contends that the evidence was insufficient to support the verdict. He suggests that no one observed the appellant at the scene of the theft and...
To continue reading
Request your trial
-
State v. Melton
...whether there was a basis in the evidence for a reasonable inference of guilt. State v. Aten, 203 Kan. 920, Syl. 6, 457 P.2d 89; State v. Nicolay, 202 Kan. 209, Syl. 2, 447 P.2d Without reviewing all of the state's evidence, we have no hesitation in saying it was ample to support the verdic......
-
State v. Aten
...this court is limited to ascertaining whether there was a basis in the evidence for a reasonable inference of guilt. (Following State v. Nicolay, 202 Kan. 209, 447 P.2d 403.) 7. In a prosecution for larceny, the evidence is examined and held sufficient to sustain a verdict of Robert V. Talk......
-
State v. Evans
...there is a basis in the evidence for a reasonable inference of guilt. (State v. Norwood, 217 Kan. 150, 535 P.2d 996; State v. Nicolay, 202 Kan. 209, 447 P.2d 403.) As instructed by the court, it was for the jury to determine whether defendant merely possessed the drugs or whether he intende......
-
State v. Griffin, 46736
...inference of guilt. (State v. Melton, 207 Kan. 700, 486 P.2d 1361; State v. Aten, 203 Kan. 920, 457 P.2d 89; and State v. Nicolay, 202 Kan. 209, 447 P.2d 403.) Without reviewing all of the state's evidence we have no hesitancy in saying it was ample to sustain the verdict. The state's evide......