State v. Osburn, 38353
| Decision Date | 09 June 1951 |
| Docket Number | No. 38353,38353 |
| Parties | STATE v. OSBURN. |
| Court | Kansas Supreme Court |
Syllabus by the Court.
1. It is the function of the jury, not that of the court of appellate review, to weigh the evidence and pass upon the credibility of the witnesses and, if there is substantial competent evidence to support it a verdict will not be disturbed on grounds it is based on insufficient evidence or is contrary to the evidence.
2. Where the defendant in a criminal case in district court intends to rely upon an alibi as a defense compliance with the requirements of G.S.1949, 62-1341, is a prerequisite to the admissibility of the testimony of alibi witnesses.
3. The record examined in a criminal prosecution for robbery in the first degree and held, (1) the evidence was sufficient to support a verdict of guilty and (2) the trial court did not err (a) in permitting the state to cross-examine the defendant respecting his prior arrests for the sole purpose of testing his veracity and credibility; (b) in refusing to permit the defendant to adduce evidence in support of an alibi because of noncompliance with the statutory requirements of G.S.1949, 62-1341; (c) in overruling defendant's motion for a new trial or in rendering judgment against him on the verdict of the jury.
George Francis Burton, of Parsons, argued the cause and was on the briefs for appellant.
Willis K. Dillenberger, Asst. County Atty., argued the cause, and Oren Gray, County Atty., Oswego, and Harold R. Fatzer, Atty. Gen., were with him on the briefs for appellee.
Defendant was tried, convicted, and sentenced on two criminal charges of robbery in the first degree, and appeals.
The undisputed facts are that the Cronin Liquor Store, located at 1527 Gabriel in the City of Parsons, was held up and robbed by an individual, armed with a revolver, on May 18, 1950, and again on August 23, 1950. Defendant was arrested and charged with commission of the robberies. In due course he was brought before a magistrate, given a preliminary examination and bound over to the district court. In the district court an information was filed against him charging him in two counts with robbery in the first degree. The record does not disclose but we are told, and therefore assume it to be the fact, that when the case came on for trial in the district court defendant, who was represented by counsel, waived formal arraignment and entered a plea of not guilty. In any event it shows that at that time counsel for both the state and the defendant announced that all parties were ready for trial. Thereafter a jury which had been empaneled and sworn to tried the cause, returned a verdict finding defendant guilty of robbery in the first degree as charged in the information and the trial court, after overruling a motion for new trial, sentenced him to the state penitentiary for the period of time prescribed by law for the commission of such crimes.
In view of the issues raised on appeal nothing would be gained by a detailed recital of the evidence adduced at the trial. For that reason, we turn directly to the errors assigned by appellant as grounds for reversal of the judgment and will refer to portions of the testimony essential to their disposition as they are given consideration.
The first and perhaps the most important error assigned is that the verdict of the jury was based upon insufficient evidence and is contrary to the evidence. With respect to this claim the record discloses that appellant flatly denied that he had been in, was near the vicinity of, or had robbed, the establishment in question on either of the dates set forth in the information. On the other hand one Otto Ader, who was in charge of such establishment on both of the occasions when it was robbed, positively identified appellant as the person who entered the store on the dates in question and, at the point of a gun, took from him money belonging to his employer amounting to $57.70 on the first occasion and $36.89 on the second. There was little if any other evidence of identification. Notwithstanding the jury saw fit to disbelieve the appellant and give credence to the testimony of the employee of the robbed establishment and the court approved its verdict. In the face of such a record there is no sound ground upon which appellant's contention on this point can be upheld.
This court has long been committed to the rule it is the function of the jury, not that of the court of appellate review, to weigh the evidence and pass upon the credibility of witnesses, and that where there is any substantial competent evidence to support it a verdict will not be disturbed on grounds of insufficiency of the evidence. See State v. Smith, 158 Kan. 645, 648, 149 P.2d 600, and cases there cited, also State v. Greer, 163 Kan. 592, 184 P.2d 991 and State v. Berry, 170 Kan. 174, 223 P.2d 726.
Neither can it be said, as appellant suggests, that the evidence is insufficient simply because the verdict with respect to the identity of an accused, is based upon the testimony of a single witness. In State v. Whalen, 163 Kan. 8, 179 P.2d 942, the defendant was charged with grand larceny and convicted. On appeal to this court one of his claims was that the verdict was not sustained by the evidence because it was based solely upon testimony of the victim, denied by the defendant, to the effect the former looked back over his shoulder and observed his pocketbook which had been in his left hip pocket in the defendant's hand and that later, when seized by the victim, the defendant dropped the pocketbook to the ground. In affirming the judgment we said that such evidence, standing alone, was sufficient to sustain the verdict. Another statement of like import is to be found at page 175 of 170 Kan., at page 726 of 223 P.2d of the opinion in State v. Berry, supra.
The next two matters relied on as grounds for reversal of the judgment are raised by several specifications of error. The first of these is that the trial court erred in rulings which permitted the appellee to introduce improper evidence to the prejudice of appellant's rights and the second that it erred in excluding a portion of appellant's evidence necessary to the full and proper presentation of his defense. We shall treat these claims in the order in which they are stated.
The claim erroneous evidence was admitted is based upon the premise appellant, after having taken the stand as a witness in his own defense, was interrogated on cross-examination, regarding the number of times he had been arrested. Specifically the complaint is that the trial court, over objection of his counsel, not only allowed questions of that character to be asked but permitted the answers made thereto to go to the jury. This testimony, it should here be stated, was not admitted until after ...
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