State v. Smith

• Decision Date: 24 January 1953
• Docket Number: No. 38791,38791
• Citation: State v. Smith, 173 Kan. 813, 252 P.2d 922 (Kan. 1953)
• Parties: STATE v. SMITH.
• Court: Kansas Supreme Court

Page 922

252 P.2d 922

173 Kan. 813

STATE v. SMITH.

No. 38791.

Supreme Court of Kansas.

Jan. 24, 1953.

Syllabus by the Court.

In a prosecution for the offense of arson under G.S.1949, 21-584, the record is examined, and it is held: The court did not err (1) in ordering defendant's case to trial, (2) in the admission of evidence, (3) in the instructions given, (4) in failing to inquire into defendant's sanity, and (5) in overruling the motion for a new trial.

Donald C. Smith and Fred Hall, both of Dodge City, for appellant.

Harold R. Fatzer, Atty. Gen. and L. John Callahan, County Atty., Lakin, for appellee.

WERTZ, Justice.

This is an appeal from a conviction of arson in a prosecution brought under G.S.1949, 21-584, the provisions of which make it a felony for any person willfully, and with intent to defraud the insurer, to aid, counsel or procure the burning of any personal property, either of such person or owned by another, when at the time such property is insured against loss or damage by fire.

Defendant John Smith, and Alvin Leroy Smith are brothers. Frank Smith is their father. In the summer of 1950, John, Alvin and Frank were operating as custom cutters in the western Kansas wheat harvest. Defendant John owned a 1940 ton and a half truck. His father owned a tractor and 12 foot combine. On July 17th, the three of them went to an insurance agency in Dodge City, at which time and place defendant purchased a $900 policy of fire and collision insurance on his truck. His father purchased an $800 policy on the tractor, and a $2,240 policy on the combine. Four days later, the truck and tractor were destroyed by fire on a highway west of the town of Lakin. The defendant and his father, Frank, were charged in separate informations, under the mentioned statute, with the offense of aiding, counseling, and procuring the burning of the truck and tractor. His brother, Alvin Leroy Smith, was charged separately, under the mentioned statute, with burning the property.

On March 10, 1952, the first day of the March term of the Kearny county district court, the three mentioned cases were called and set for trial. At the time, none of the defendants were represented by counsel, their attorney not being present in court. The trial court then appointed counsel for the defendants and granted a recess in order for the duly appointed counsel to confer with the defendants.

Alvin Leroy's case was tried first, beginning on March 11th, at the conclusion of which John's trial began on the afternoon of March 12th. Both defendants were found guilty as charged in the informations filed against them, and each have filed separate appeals to this court.

Their specifications of error are, for the most part, identical. In the instant case, defendant presents eight specifications of error: (1) The trial court erred in forcing defendant to go to trial with a court-appointed attorney without affording defendant an opportunity to have his paid counsel in attendance; (2) the trial court erred in holding that the defendant had the burden of proving that a purported confession was not made voluntarily; (3) in admitting a purported confession not made in the presence of the defendant; (4) in failing to instruct the jury as to the manner in which it should consider the purported confessions of Leroy Smith and Frank Smith not made in the presence of the defendant; (5) in permitting witness Turner to testify as to his opinion on whether...