State v. Ralls

• Decision Date: 03 November 1973
• Docket Number: No. 47106,47106
• Parties: STATE of Kansas, Appellee, v. Richard David RALLS, Appellant.
• Court: Kansas Supreme Court

Page 1205

515 P.2d 1205

213 Kan. 249

STATE of Kansas, Appellee, v. Richard David RALLS, Appellant.

No. 47106.

Supreme Court of Kansas.

Nov. 3, 1973.

Syllabus by the Court

1. Reversible error cannot be predicated upon a complaint of misconduct of counsel for the state in the opening statement or closing argument to the jury when the defendant made no objection to the misconduct and made no request to have the court admonish the jury to disregard the objectionable statements.

2. The extent of cross-examination on the issue of credibility of a witness rests in the sound discretion of the trial court.

3. The Kansas Criminal Code, effective July 1, 1970, has no application to crimes committed prior to its effective date.

4. The trial of any prosecution and proceedings incidental thereto commenced after July 1, 1970, are governed by the provisions of the new Kansas Code of Criminal Procedure.

5. The mandatory provisions of K.S.A.1972 Supp. 22-2903 deal with appearances before a magistrate which lead up to and include the preliminary examination. They do not apply to a criminal trial.

6. The exclusion or sequestration of witnesses during a criminal trial is a matter not of right but of discretion on the part of the trial court.

7. This court will not consider abstract questions which can no longer have effect on the rights of the parties.

8. Under the provisions of K.S.A.1972 Supp. 22-3420(2) the trial judge should admonish the jury in accordance with the statute at each separation and adjournment of court but prejudicial error will not be presumed from one such failure in the absence of a showing of prejudicial misconduct on the part of jurors resulting therefrom.

9. The cross-examination of an accused in a criminal case is subject to the same rules as apply to the testimony of other witnesses.

10. It is not prejudicially erroneous for the court to fail to give a limiting instruction on the purpose of evidence of prior crimes when the challenged evidence is admissible independently of K.S.A. 60-455.

11. When all of the offenses are of the same general character, require the same mode of trial, the same kind of evidence and occur in the same jurisdiction the defendant may be tried upon several counts of one information or if separate in-informations have been filed they may be consolidated for trial at one and the same trial.

James W. Wilson, Wichita, argued the cause, and Hal H. Lockett, Wichita, was with him on the brief, for appellant.

Clifford Bertholf, Asst. Dist. Atty., argued the cause, and Vern Miller, Atty. Gen., Keith Sanborn, Dist. Atty., and Stephen M. Joseph, Wichita, of counsel, were with him on the brief, for appellee.

FROMME, Justice:

The defendant Richard David Ralls was convicted by a jury of larceny of property of the value of over $50.00, a 1967 Chevrolet automobile, and he was sentenced to not less than five nor more than fifteen years. (K.S.A. 21-534.) On appeal defendant-appellant raises several alleged trial errors which we will examine in turn.

The first point is directed toward comments by the prosecuting attorney during his opening statement which related to the need of the state to rely generally on circumstantial evidence to prove automobile larcenies. The defendant argues it was reversible error for the court to fail to inform the jury that they should disregard such comments made by the county attorney during his opening statement. The record indicates that the defendant neither objected to these comments nor requested that the jury be informed to disregard such statements. An appellate court will not for the first time consider points on appeal which were not brought to the attention of the trial court. (State v. Smith, 209 Kan. 664, 498 P.2d 78.) Reversible error cannot be predicated upon a complaint of misconduct of counsel for the state in the opening statement or closing argument to the jury when the defendant made no objection to the misconduct and made no request to have the court admonish the jury to disregard the objectionable statements. (State v. Fleury, 203 Kan. 888, 896, 457 P.2d 44; State v. McDermott, 202 Kan. 399, 405, 449 P.2d 545, cert. den., 396 U.S. 912, 90 S.Ct. 226, 24 L.Ed.2d 187.)

Defendant next contends the trial court committed prejudicial error in limiting cross-examination of the state's witnesses. As an example defendant refers to the testimony of witness Michael Cain. On cross-examination he testified that he considered himself a friend of the defendant, that he and several others had a 'midnight auto supply going', and that he had been charged with obtaining certain things at different times. Objections were sustained to this testimony as being irrelevant and immaterial. However, testimony was immediately thereafter elicited and admitted in evidence to the effect he had not been given freedom from prosecution, that he had been convicted of two assaults and of petty larceny.

The abbreviated record does not contain the testimony of this witness on direct examination by the state and we cannot determine whether the questions were on subjects explored by the state on direct examination. However, defendant justifies this line of cross-examination in his brief as bearing upon the issue of credibility.

The extent of cross-examination on the issue of credibility of a witness rests in the sound discretion of the trial court. (State v. Greenwood, 197 Kan. 676, 421 P.2d 24; State v. Guffey, 205 Kan. 9, 17, 468 P.2d 254.) This discretion is an incident to the mode and manner of trial, and in the absence of flagrant abuse, should not be disturbed on appeal. (State v. Wolfe, 194 Kan. 697, 401 P.2d 917.) There must be some showing of abuse of discretion or prejudice to the appealing party before a reversal is justified. (State v. Greenwood, supra; State v. Guffey, supra.) There is no such showing in the present case.

Defendant argues he was improperly sentenced by the trial court under the provisions of the old criminal code, K.S.A. 21-534, for stealing an automobile and that he should have been sentenced under the provisions of the new Kansas Criminal Code (K.S.A.1972 Supp. 21-4501) effective July 1, 1970. K.S.A. 21-534 carries a sentence for stealing an automobile of not less than five and not more than fifteen years. K.S.A.1972 Supp. 21-4501 carries a Class D felony sentence for theft of property of the value of over $50.00 of not less than one nor more than three years minimum sentence and the maximum shall be ten years.

The defendant was convicted of stealing a 1967 Chevrolet automobile. The car was stolen on June 11, 1970. The new Kansas Criminal Code went into effect July 1, 1970, and K.S.A.1972 Supp. 21-3102(4) specifically deals with the question raised. It provides:

'This code has no application to crimes committed prior to its effective date. A crime is committed prior to the effective date of the code if any of the essential elements of the crime as then defined occurred before that date. Prosecutions for prior crimes shall be governed, prosecuted and punished under the laws existing at the time such crimes were committed.'

The legislative intent could not be more clearly expressed than it is in the above statute. The Kansas Criminal Code, effective July 1, 1970, has no application to crimes committed prior to its effective date, and necessarily so for it relates to substantive law.

Defendant argues that his trial procedure was conducted in accordance with the Kansas Code of Criminal Procedure, effective July 1, 1970, so he should have been entitled to be sentenced under the Kansas Criminal Code which was effective on that same date. This conclusion does not logically follow. The Kansas Criminal Code relates to substantive law and operates prospectively on crimes committed after its effective date. The Kansas Code of Criminal Procedure, on the other hand, relates to procedural law and operates prospectively on trials and proceedings pending on the effective date of the act or filed thereafter. The defendant's trial was commenced after July 1, 1970. Defendant did not file an election to bring himself under the provisions of the former procedural act. K.S.A.1972 Supp. 22-4602(1) makes this possible where prosecution is commenced prior to July 1, 1970. The trial of defendant began January 11, 1971. The record does not disclose when prosecution was commenced but trial proceedings were properly governed by the new procedural act. The defendant at no time elected to be proceeded against under the former law. See State v. Caldwell, 208 Kan. 674, 493 P.2d 235, where the defendant made the necessary election and was proceeded against under the prior code. The trial of any prosecution and proceedings incidental thereto commenced after July 1, 1970, are governed by the provisions of the new Kansas Code of Criminal Procedure.

Defendant next argues the trial court committed prejudicial error in refusing to separate the witnesses on motion of the defendant. K.S.A.1972 Supp. 22-2903 which is cited to support such claim reads:

'During the examination of any witnesses or when the defendant is making a statement or testifying the magistrate may, and on the request of the defendant or state shall, exclude all other witnesses. He may also cause the witnesses to be kept separate and to be prevented from communicating with each other until all are examined.'

We note that this section was included in the Kansas Code of Criminal Procedure under Article 29 entitled 'Procedure After Arrest.' The mandatory provisions of K.S.A.1972 Supp. 22-2903 deal with appearances before a magistrate which lead up to and include the preliminary examination. They do not apply to a criminal trial.

The prior statute (K.S.A. 62-616) provided that the separation of witnesses during the preliminary hearing was discretionary. In 1970 the legislature made the separation of witnesses at a preliminary hearing mandatory on request of either the state or the defendant. No...