State v. Sharp
| Decision Date | 08 March 1969 |
| Docket Number | No. 45243,45243 |
| Citation | 202 Kan. 644,451 P.2d 137 |
| Parties | STATE of Kansas, Appellee, v. Bobby Dan SHARP, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. It will be presumed, in the absence of a showing to the contrary, that a judicial officer has properly performed the duties of his office.
2. Where an indictment or information contains immaterial and unnecessary allegations which could have been omitted without affecting the charge, such allegations may be treated as surplusage and disregarded.
3. It is well established law that one who aids and abets in the commission of a criminal offense may be charged, tried and convicted as a principal.
4. Evidence of alibi is not admissible in a criminal case unless notice has been served in compliance with statutory requirements.
5. Although the court may permit alibi testimony to be introduced if notice has been served at any time before the jury is sworn, the granting of permission is discretionary with the court and its ruling thereon will not be reversed in the absence of an abuse of discretion.
6. Error which does not result in prejudice to the substantial rights of an accused is insufficient, alone, to justify the reversal of a judgment of conviction.
7. The record is examined in an action wherein the defendant was charged with and convicted of robbery and burglary and, for reasons disclosed in the opinion, it is held the trial court did not commit prejudicial error (1) in failing to sustain an objection to remarks made by the prosecutor in final argument and in not admonishing the jury to disregard the same; (2) in overruling a motion to quash count two of the information; (3) in refusing to admit additional evidence of alibi and restricting counsel from commenting on alibi evidence already admitted; (4) in overruling defendant's motion for acquittal.
Hartzell, J. Whyte, Kansas City, for appellant.
Nick Tomasic, Asst. County Atty., argued the cause, and Kent Frizzell, Atty. Gen., and Frank D. Menghini, County Atty., with him on brief for appellee.
The appellant, Bobby Dan Sharp, was convicted on charges of robbery and burglary. He has appealed. In this opinion we shall refer to him either by name or as defendant.
The state's evidence showed that approximately 1:00 or 2:00 a.m., May 8, 1966, a car containing what the victim called a group of 'boys' drove up to the John Price residence. Mr. Price, the victim, and a man 55 years of age, lived alone and was asleep at the time. The 'boys' proceeded to break the latch on the rear door and then entered the kitchen, where they turned on the light. Mr. Price was aroused by the noise and raised up on his elbow in bed. The gang, one of whose members was identified as the defendant, proceeded into Price's bedroom where they had him turn on a bedside light.
One of the 'boys,' Howard White by name, rifled the pockets of Price's trousers, which lay by the bed, taking some four dollars and seventy-five cents. White also took the victim's knife and wrist watch. Members of the group then proceeded to beat Mr. Price with their fists and with a grass sickle whip in a vain effort to find where the rest of his money was. One of the 'boys' stated during this attack that he knew Price had more money because he had worked all week.
After becoming convinced by Price's denials that he had no more money, the 'boys' retired to the kitchen where, following an argument, they split the money between them and left the house. Price observed them leaving in a blue and white Ford with a convertible top. There appeared to be five in the car.
Mr. Price then put on his clothes, turned off the lights, and sat on the porch with his dog. About 3:00 a.m. Price saw the same car return with about the same group on board. He thereupon retreated in the dark to the hill back of his house, taking his dog along, and watched proceedings from there. Again the same group of 'boys' turned on the kitchen light and went through the house. After they left, a radio was missing and some food was gone from the icebox.
Several points are raised on appeal. The first relates to a remark made by the prosecutor in closing argument which Sharp alleges incorrectly stated the law, to his prejudice. The challenged remark occurred in the following sequence:
It is contended this line of argument misstated the law and 'violated a basic principle of criminal law, in that it attempted to shift the burden of proof from the State to the Defendant.'
The trial court did not instruct the jury to disregard the prosecutor's remarks but we are nonetheless disinclined to view the incident as constituting prejudicial error.
Considering the language as a whole, we question whether it can be construed as an argument by the state that the defendant had the burden of establishing his own innocence. We note, especially, that the challenged language is immediately preceded by the prosecutor's statement that 'The burden of proof is upon the State to prove a case * * *' What followed, although it may have been awkwardly composed and phrased, amounts to no more, in our judgment, than an expression of belief on the part of the speaker that the state's evidence had not been counterbalanced or impugned.
Moreover, no exception is taken to the court's instructions, which appear to have been somewhat lengthy, nor is any contention made that they unfairly or inadequately set out the relevant law. We may assume, in the absence of a contrary showing, that the jury was properly instructed on the burden of proof, for it is presumed that a judicial officer will properly perform his duties. (Lyerla v. Lyerla, 195 Kan. 259, 264, 403 P.2d 989.)
The court, in ruling upon defendant's objection to the state's argument at an out of court hearing, remarked that the jury had been adequately instructed on the law in that area. Moreover, the court observed, it had several times warned and cautioned the jury not to consider comments made by counsel as evidence. This wholesome advice would tend to provide a further safeguard against possible prejudice.
It is next argued that the trial court erred in overruling a motion to quash count two of the information. Omitting formal parts, count two charged:
'* * * on or about the 8th day of May, 1966, one Howard Lawrence White one Bobby Dan Sharp, one Nathana Davis Bey, one Oscar Thomas Cloinch and one James William Bailey, with deadly and dangerous weapons, to wit: their fists, did unlawfully, wilfully and feloniously make an assault upon one John Price, with intent him, the said John Price, unlawfully, wilfully and feloniously to rob, and the money and personal property of the said John Price to unlawfully, wilfully and feloniously steal, take and carry away:
Cash ....................... $ 4.40
Motorola Radio ............. $15.00
Swiss made watch ........... $17.00
Pocket knife ............... $ 1.00
------
Total and aggregate value
of ............. $37.40
from the person, in the presence, against the will, and by putting the said John Price in fear of some immediate injury to his person, the said items, they, the said Howard Lawrence White, Bobby Dan Sharp, Nathana Davis Bey, Oscar Thomas Cloinch and James William Bailey did unlawfully, wilfully and feloniously steal, take and carry away, the said items being then and there the property of the said John Price * * *' (Emphasis supplied.)
The defendant argues that 'fists' do not constitute or come within the category of 'deadly and dangerous weapons.' We are not prepared to say that under no circumstances may human fists be considered dangerous or deadly weapons, especially when applied in concert by members of a gang of thugs. However, we need not decide this interesting question here. The statute defining first degree robbery, K.S.A. 21-527, does not require the use of deadly and dangerous weapons in the commission of that offense. It provides simply that any person who takes property of another from his person or in his presence and against his will by doing violence to his person or putting him in fear of immediate injury to his person shall be guilty of robbery.
Every one of the elements required by statute to constitute the offense of robbery in the first degree are set out in count two of the information. The addition of the words 'with deadly and dangerous weapons, to-wit: their fists,' is entirely superfluous and clearly surplusage. It is a generally recognized rule that where a pleading contains unnecessary allegations they may be treated as surplusage. (4 Hatcher's Kansas Digest (Rev. Ed.) Pleadings, § 76; State v. LeVier, 202 Kan....
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