State v. Robertson, 45401
| Decision Date | 14 June 1969 |
| Docket Number | No. 45401,45401 |
| Citation | 203 Kan. 647,455 P.2d 570 |
| Parties | STATE of Kansas, Appellee, v. Howard B. ROBERTSON, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
In an appeal from a conviction for robbery in the first degree the record is examined and under the circumstances set forth in the opinion it is held: (1) The amount of bail does not appear excessive; (2) The endorsement of additional witnesses on the information was properly authorized by the trial court; (3) The conduct of the county attorney was not prejudicial to substantial rights of the defendant, and (4) No prejudicial error is shown.
Richard A. Benjes, Hutchinson, argued the cause and D. C. Martindell, W. D. P. Carey, J. Richards Hunter, Harry H. Dunn, Robert C. Martindell, William B. Swearer and Elwin F. Cabbage, Hutchinson, were with him on the brief for appellant.
Raymond F. Berkley, County Atty., argued the cause and Kerry J. Granger, Asst. County Atty., was with him on the brief for appellee.
Howard B. Robertson appeals from a conviction, judgment and sentence in the District Court of Reno County, Kansas, for robbery in the first degree. (K.S.A. 21-527) He was sentenced as an habitual criminal for a period of not less than thirty years. (K.S.A. 21-107a) Defendant had three prior felony convictions in Reno county.
Defendant-appellant's first specification of error is that the bail required was unjustified and excessive. The record from the district court affords this court little opportunity to evaluate such a claim. The amount of bail was fixed by the magistrate at $25,000. No proceedings to obtain a reduction of bail appear in the record. It does appear, however, the defendant has committed three previous felonies in Reno county.
The amount of bail rests in the sound discretion of the presiding magistrate. The purpose of bail is to insure the presence of the prisoner at a future hearing. In fixing the amount a magistrate should be guided by a consideration of the nature of the offense as shown by the proof thereof. He may consider the propensity of the defendant for crime as indicated by his previous convictions. The magistrate must consider the probability of escape. No hard and fast rule can be laid down for fixing the amount of bail on a criminal charge. Each case must be governed by its own facts and circumstances. An appellate court should not interfere with the decision of the magistrate except where a clear abuse of discretion is shown affecting substantial rights and denying due process of the law. (8 C.J.S. Bail § 48b; 8 Am.Jur.2d, Bail and Recognizance, § 39; Craig v. State, 198 Kan. 39, 41, 422 P.2d 955.)
No abuse of discretion is shown in the present case.
Defendant next specifies that the trial court erred in allowing the prosecution to endorse additional witnesses on the information and to introduce their testimony at the trial.
The prosecuting attorney is required to endorse on the information the names of witnesses known to him at the time of filing. He may thereafter endorse the names of additional witnesses as may afterward be known to him if he obtains permission from the court. (K.S.A. 62-802; State v. Poulos, 196 Kan. 287, 290, 411 P.2d 689; State v. Zimmer, 198 Kan. 479, 484, 426 P.2d 267; State v. Davis, 199 Kan. 33, 37, 427 P.2d 606.)
Subsequent endorsement and use of witnesses must be left to the sound discretion of the trial court as the interest of justice may require. The exercise of this judicial discretion is not without limitation. When it is shown the use of such witnesses will result in surprise and material prejudice preventing a fair preparation for defense the granting of such permission constitutes an abuse of judicial discretion. (State v. Eidson, 143 Kan. 300, 307, 54 P.2d 977.)
This requirement of endorsement of witnesses is a safeguard extended to a defendant to prevent surprise and give him an opportunity to examine the witnesses for the state in advance of trial. (Pyle v. Amrine, 159 Kan. 458, 474, 156 P.2d 509.)
In the present case the two witnesses endorsed late were accomplices who took part in the crime. The defendant had issued subpoenas before trial to secure their testimony. We assume defendant was familiar with their knowledge of the crime before he issued the subpoenas.
When the prosecuting attorney sought permission to endorse the names of the accomplices as witnesses he informed the court of the reasons for his original omission of their names. They were separately charged with this crime. They were hostile to the prosecution. They were entitled to claim a privilege not to testify under the 5th Amendment to the Constitution of the United States. While the jury was being impaneled these accomplices indicated to the law officers a desire to testify against the defendant. This information was relayed to the county attorney and he sought verification and confirmation from their legal counsel. The following morning before any testimony was introduced the county attorney sought and obtained permission to endorse their names as witnesses. Defendant made objection but he did not ask for a continuance to ascertain the nature of their testimony. He already was advised of their knowledge of the crime. The testimony did not change the theory of the prosecution. It merely bolstered the case of the prosecution.
Under these circumstances there was no surprise or change in theory which would result in prejudice or deny defendant a fair and impartial trial. No abuse of judicial discretion occurred in permitting the endorsement and use of these witnesses under the circumstances shown by the record.
The final specification of error concerns alleged misconduct by the county attorney while the trial was in progress but during a noon recess. It is charged the county attorney intimidated one of defendant's witnesses and the witness did not testify.
Misconduct is not confined to occurrences while the case is being heard. It can occur before or during the trial and may be outside the hearing of the jury if the conduct results in loss of a witness's testimony which testimony would lend substantial support to the theory of a party. (Phares v. Krhut, 76 Kan. 238, 91 P. 52.)
The witness, a Mr. Castor, was approached by the county attorney during a noon recess. Both sides had issued subpoenas for this witness. The county attorney and Mr....
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State v. Foy
...fixing the amount of bail on a criminal charge, and each case must be governed by its own facts and circumstances. (State v. Robertson, 203 Kan. 647, 455 P.2d 570 (1969).) The amount of bail rests within the sound discretion of the presiding magistrate. State v. Way, 204 Kan. 375, 461 P.2d ......
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State v. Rueckert
...the time of filing. He may thereafter endorse the 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......
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State v. Ponds, 47856
...since the preliminary hearing that a WSU officer had seen the car, and could have discovered his name themselves. Compare State v. Robertson, 203 Kan. 647, 455 P.2d 570, where a late endorsement of the defendants' accomplices was not prejudicial since the defendant obviously knew of their f......
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State v. Smith
...testimony did not change the theory of the state's case and we can see no prejudice in permitting such endorsement. See State v. Robertson, 203 Kan. 647, 455 P.2d 570. The appellant contends the evidence of probable cause introduced at the preliminary hearing was wholly insufficient to esta......