State v. Poulos
| Decision Date | 05 March 1966 |
| Docket Number | No. 44253,44253 |
| Citation | 196 Kan. 287,411 P.2d 689 |
| Parties | The STATE of Kansas, Appellee, v. George POULOS, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. An order overruling a motion for a change of venue will not be reversed unless it be shown to have resulted in prejudice to the substantial rights of the defendant.
2. Whether the names of additional witnesses may be endorsed on an information at, or after, the commencement of a trial rests within the sound discretion of the trial court, and where such endorsement has been allowed, reversible error cannot be predicated thereon except for abuse of discretion.
3. Evidence of offenses or civil wrongs independent of but similar to the crime with which a defendant stands charged is admissible under proper instructions as to the limited purpose for which it may be considered, where it proves or tends to establish, among other matters, inclination, plan, scheme, method or system of operation on the part of the defendant.
4. Remoteness in time of such evidence, otherwise admissible, affects the weight and probative value and not the admissibility of such evidence (following State v. Fannan, 167 Kan. 723, 207 P.2d 1176).
5. The record is examined in an action in which the defendant was convicted of burglary in the second degree and grand larceny and it is held: The trial court did not err (1) in denying the defendant's motion for a change of venue or in excusing the judge of another division of the court from testify, (2) in endorsing the name of an additional witness on the information, (3) in admitting evidence of a separate offense and instructing thereon, (4) in giving an instruction on the unexplained possession of recently stolen property as evidence of guilt, and (5) in overruling the defendant's motion for new trial.
T. M. Murrell, Topeka, argued the cause, and George A. Scott, Jack A. Quinlan and Kay McFarland, Topeka, and Charles D. Anderson and Warner Moore, Wichita, were with him on the brief, for appellant.
Keith Sanborn, County Atty., argued the cause, and Robert C. Londerholm, Atty Gen., Richard K. Hollingsworth, and A. J. Focht, Deputy County Attys., were with him on the brief, for appellee.
This is an appeal by the defendant, George Poulos, from a conviction of second-degree burglary and grand larceny.
Evidence introduced by the state tended to show that on the night of July 21, 1962, the defendant had a conviction with one Rex Conn at the Town House Motor Hotel in Wichita, Kansas, in which the defendant told Conn he would like to have some television sets from the Town House and that he had a master key to open the doors; Conn agreed to get the sets and Poulos gave him the master key; using the key given him by the defendant, Conn entered four hotel rooms, took a television set from each room, placed them in his car and drove east on Kellogg Street; the defendant pulled along side of Conn's car on Kellogg and Conn followed him to a park where the defendant told him to wait; Poulos then drove off and returned a few minutes later with a man by the name of Russ Adams; Conn and the defendant unloaded three of the stolen television sets from Conn's car and placed them in Adams' car; Adams gave defendant the money for the three sets and the defendant handed Conn $75.00 as his share; Conn and defendant then loaded the fourth television set into the defendant's car and Conn left for home.
The specifications of error fall into four categories: First, that the trial court erred in overruling defendant's motion for change of venue, in connection with which it is claimed that the testimony of Judge Howard C. Kline was erroneously excluded; second, the court erred in permitting the state to endorse the name of George Taylor on the information and in admitting Taylor's testimony and instructing thereon; third, the court erred in giving an instruction on the unexplained possession of recently stolen property; and fourth, the court erred in overruling defendant's motion for a new trial. We shall consider these in order.
The grounds set out in the defendant's motion for a change of venue in this case were the same as those contained in a companion motion filed in a case then pending before Judge Noone, wherein Poulos, Conn and others were charged with arson and subornation of perjury. The two motions were consolidated for hearing and were presented jointly to Judge Noone and Judge Riddel, sitting in banc. The evidence introduced at the hearing, as well as the joint rulings of the judges on legal questions, pertained to the motions in both cases. At the conclusion of the joint hearing, both motions were overruled.
Poulos was first tried in Judge Noone's court, where a conviction was returned on November 5, 1964, several months before a verdict was obtained in this case. He appealed from that conviction, alleging, as he has in this case, that error was committed in the overruling of his motion for a change of venue. That appeal is State v. Poulos, 196 Kan. 253, 411 P.2d 694, this day decided.
It would be entirely repetitious to set out in this opinion what transpired at the combined hearing of defendant's twin motions for change of venue, or to detail the evidence introduced at that time. It would likewise be tedious, and a duplication as well, were we to repeat in this opinion the rules of law by which courts are governed in passing upon motions to transfer cases for trial. Justice Fatzer, in a comprehensive opinion rendered in State v. Poulos, supra, has ably depicted what occurred at the change of venue hearing and has thoroughly reviewed the applicable principles of law. We commend his discussion to those studious readers who are interested in the subject.
As this court pointed out in State v. Welch, 121 Kan. 369, 247 P. 1053, an order denying a change of venue will not be reversed unless it is shown to have prejudiced the substantial rights of a defendant. We have searched this record in vain for any affirmative evidence of prejudice resulting to Mr. Poulos from the denial of his motion.
It is apparent to us, from the record of the voir dire examination in this case, that no difficulty was experienced in obtaining a qualified jury. Poulos challenged no jurors for cause. Each member of the panel finally selected to hear this case was thoroughly examined and passed for cause by defense counsel. Those who had heard of the defendant were straightforward in asserting they knew nothing of this case, harbored no prejudice and would be fair and impartial in their judgments. The defendant even expended one of his peremptory challenges against a prospective juror who had never heard of him, rather than on one who had.
Our attention has been directed to no evidence of inflammatory press releases during the trial. Nor is there any claim that public wrath or indignation was rampant. Indeed, there is little indication that John Q. Public displayed interest of any kind in the trial proceedings. It can hardly be contended that the jury was stampeded into hasty judgment by any show of public outrage when its deliberations consumed parts of two days.
We think nothing further need be said of the defendant's first claim of error. Applying the standards clearly defined in the first Poulos opinion, we hold that the trial court did not err in refusing a change of venue in this case or in excluding Judge Kline's testimony.
We next consider alleged errors relating to the testimony of George Taylor. The defendant first maintains that it was error to permit the state to endorse Taylor's name on the information after the jury had been impaneled. The record shows the state's motion was made in the afternoon of March 2, 1964, at which time the prosecuting attorney, in the presence of defense counsel, advised the court he had a witness who had just been interviewed and outlined the substance of his expected testimony. After listening to arguments from attorneys on both sides, the court at 4:35 P.M., announced he would rule in the morning at 9:30, at which time the state's request was granted.
The defendant concedes that the endorsement of additional names on an information is a matter which is largely within the trial court's discretion (State v. Thyer, 143 Kan. 238, 53 P.2d 907; State v. Thomas, 173 Kan. 460, 249 P.2d 645), but contends the trial court abused its discretion under the circumstances shown in this case. We cannot agree.
K.S.A. 62-802 provides in pertinent part that the prosecuting attorney shall endorse on the informations filed by him the names of witnesses known to him at the time of filing and, in addition, the names of other witnesses who afterward become known to him, at such times before trial as the court may prescribe. This statute is designed...
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State v. Hart
...of evidence of a defendant's uncharged bad behavior to demonstrate “inclination” to commit the crime at issue, see State v. Poulos, 196 Kan. 287, 291–92, 411 P.2d 689,cert. denied385 U.S. 827, 87 S.Ct. 63, 17 L.Ed.2d 64 (1966), we believe inclination is synonymous with propensity; and proof......
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State v. Rueckert
...names of additional witnesses if he obtains permission of the court. (State v. Robertson, 203 Kan. 647, 455 P.2d 570; State v. Poulos, 196 Kan. 287, 290, 411 P.2d 689, cert. denied, 385 U.S. 827, 87 S.Ct. 63, 17 L.Ed.2d 64.) The right of the state to endorse additional witnesses rests withi......
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State v. Jones, 44964
...affected by the ruling of the district court in permitting the state to endorse the names of the witnesses. In State v. Poulos, 196 Kan. 287, 411 P.2d 689, cert. den. 385 U.S. 827, 17 L.Ed.2d 64, 87 S.Ct. 63, it was 'Whether the names of additional witnesses may be endorsed on an informatio......
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State v. McCorvey, 44673
...1059, 317 P.2d 485; City of Topeka v. Harvey, 188 Kan. 841, 365 P.2d 1109; State v. Wright, 194 Kan. 271, 398 P.2d 339; State v. Poulos, 196 Kan. 287, 411 P.2d 689, cert. den. 385 U.S. 827, 17 L.Ed.2d 64, 87 S.Ct. 63; State v. Darling, 197 Kan. 471, 419 P.2d 836. K.S.A. 60-455 'Subject to s......