State v. Smith

• Decision Date: 15 June 1974
• Docket Number: No. 47280,47280
• Citation: 215 Kan. 34,523 P.2d 691
• Parties: STATE of Kansas, Appellee, v. Danny L. SMITH, Appellant.
• Court: Kansas Supreme Court

Page 691

523 P.2d 691

215 Kan. 34

STATE of Kansas, Appellee, v. Danny L. SMITH, Appellant.

No. 47280.

Supreme Court of Kansas.

June 15, 1974.

Syllabus by the Court

1. A motion to inquire during trial is not a proper method to determine if members of a jury are aware of prejudicial articles published by a newspaper during the trial.

2. Where the record on appeal fails to show that a single member of the jury was made aware of the publicity, when it does not appear the publicity was massive, pervasive or disruptive of the trial proceedings no trial error appears for there is no showing that defendant was deprived of a fair trial.

3. The right of the state to endorse the names of additional witnesses on the information prior to or during trial rests within the sound discretion of the trial court and its ruling will not be disturbed in the absence of a showing of abuse, the test being whether the defendant's rights will be prejudiced.

4. It is not necessary to prove the use of a deadly weapon to establish probable cause for aggravated battery or aggravated robbery, proof of 'great bodily harm' and 'bodily harm' respectively is sufficient.

5. The four factors to be assessed by courts in determining whether a particular defendant has been denied his constitutional right to a speedy trial are (1) length of delay, (2) the reason for the delay, (3) the defendant's assertion of his right, and (4) prejudice to the defendant. (Following State v. Hemminger, 210 Kan. 587, 593, 502 P.2d 791.)

6. In an appeal from convictions for aggravated battery and aggravated robbery the record is examined and no reversible error appears for any of the reasons propounded by appellant.

Harry L. Eddy, Wichita, argued the cause and was on the brief for appellant.

Larry Kirby, 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:

Danny L. Smith appeals from a judgment of convictions for aggravated robbery (K.S.A.1973 Supp. 21-3427) and aggravated battery (K.S.A.1973 Supp. 21-3414).

Appellant does not question the sufficiency of the evidence but a brief summary will be helpful. The charges arose from the armed robbery of a filling station attendant in Wichita, Kansas. The testimony of the victim and of a girl friend of the appellant, in whom he confided the night of the armed robbery, established the sordid details. The appellant and an accomplice waited around until 9:30 p. m. when the attendant was alone. The accomplice grabbed the attendant from behind and immobilized him by placing his arm behind his back. The appellant carried a gun, took the currency from the cash register and then marched his victim into the men's rest room. The victim was forced to kneel with his head over the toilet stool and the appellant shot him in the back of the head. The victim lived. After a period of hospitalization, retraining and recovery he was able to testify at the trial some eight months later.

Appellant's first point on appeal concerns an article appearing in the locan newspaper during the trial, claimed to be inflammatory and prejudicial to the appellant. The article does not appear in the record before us. Reversible error is urged because the trial court refused to poll the jury during the trial to see if any juror read the newspaper article. The point is without merit.

A motion to inquire during trial is not a proper method to determine if members of a jury are aware of prejudicial articles published by a newspaper during the trial. State v. Potts, 205 Kan. 42, Syl. 3, 468 P.2d 74.)

Where the record on appeal, as here, fails to show that a single member of the jury was made aware of the publicity, when it does not appear the publicity was massive, pervasive or disruptive of the trial proceedings no trial error appears for there is no showing that defendant was deprived of a fair trial. (State v. Eldridge, 197 Kan. 694, Syl. 2, 421 P.2d 170, cert. den. 389 U.S. 991, 88 S.Ct. 486, 19 L.Ed.2d 483.)

Appellant next contends the trial court abused its discretion in permitting the prosecution to endorse the name of an additional witness on the information.

The right of the state to endorse the names of additional witnesses on the information prior to or during trial rests within the sound discretion of the trial court and its ruling will not be disturbed in the absence of a showing of abuse, the test being whether the defendant's rights will be prejudiced. (State v. Stafford, 213 Kan. 152, Syl. 5, 515 P.2d 769.)

In this case the witness was endorsed with leave of the court two weeks before trial. The witness was a girl friend of appellant in whom appellant confided the evening of the crime. The testimony was not readily discoverable or available to the prosecution. The witness had moved and was residing in the state of Arkansas. Opportunity was afforded the appellant's attorney to talk to the witness prior to trial. The witness was known to the appellant, her 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 establish the crimes on which he was bound over for trial in the district court. The insufficiency alleged was the no evidence was introduced before the magistrate to establish the use of a deadly weapon. The victim was in the hospital and unable to testify and the girl friend's testimony had not been uncovered at that time. The elements necessary to rsise the crime of battery to that of aggravated battery and to raise the crime of robbery to aggravated robbery are listed in the statutes in the alternative. The aggravation may be either by the use of a dangerous (deadly) weapon or by inflicting (great) bodily harm. (See K.S.A.1973 Supp. 21-3414 and 21-3427.)

The evidence at the preliminary hearing established the 'great bodily harm' required for aggravated battery and the required 'bodily harm' inflicted during the robbery. The victim's blood was in the rest room, on the phone and near his unconscious body when it was discovered by the owner of the station shortly after the robbery occurred. It is not necessary to prove the use of a deadly weapon to establish probable cause for aggravated battery or aggravated robbery, proof of 'great bodily harm' and 'bodily harm' respectively is sufficient.

The nature and purpose of a preliminary hearing was declared in the case of In re Mortimer, 192 Kan. 164, 386 P.2d 261, as follows:

'A preliminary examination is not a trial of defendant's guilt; it is rather an inquiry whether the defendant should be held for trial.' (Syl. 1.)

'The principal purpose of a preliminary examination of one accused of crime is to determine that a crime has been committed and to give him general information of the nature of the crime charged, and apprise him of the sort of evidence he will be required to meet when he is subjected to a final prosecution in the district court.' (Syl. 2.)

'In such an examination it is not necessary that the evidence upon which the accused is bound over for trial be sufficient to support a conviction. It is enough if it is shown that the offense charged had been committed and there is probable cause to believe the defendant committed the offense.' (Syl. 3.)

See also State v. Pigg, 80 Kan. 481, 103 P. 121, and K.S.A.1973 Supp. 22-2901 and 22-2902.

Before July 1, 1970, the effective date of the Kansas code of criminal procedure, an accused was required to raise the question of the sufficiency of the preliminary examination prior to arraignment by a plea in abatement. (State v. Cippola, 202 Kan. 624, 628, 451 P.2d 199, cert. den. 396 U.S. 967, 24 L.Ed.2d 432, 90 S.Ct. 446.) If the sufficiency of the preliminary examination was not challenged by a timely plea in abatement, that question could not be raised on appeal. (State v. McCarther, 196 Kan. 665, 671, 414 P.2d 59.) This rule served a salutary and legitimate purpose; it promoted 'definiteness, fairness, and orderly procedure of criminal litigation.' (State v. McCarther, supra, at p. 672, 414 P.2d at p. 65.) If a timely plea in abatement was filed and overruled, the sufficiency of the preliminary examination could be reviewed on appeal. (State v. McCarther, supra, at p. 672, 414 P.2d 59.) Review, however, was limited to those issues advanced by the plea.

The plea in abatement as a procedural device in criminal litigation was abolished by K.S.A.1973 Supp. 22-3208(1). Since July 1, 1970, the sufficiency of the preliminary examination may be challenged only by a motion to dismiss or to grant appropriate relief (K.S.A.1973 Supp. 22-3208(1)) filed no later than 20 days after arraignment (K.S.A.1973 Supp. 22-3208(4)). Failure to raise the question by such a motion constitutes a waiver and precludes review on appeal (K.S.A.1973 Supp. 22-3208(3)). Since the defendant filed the appropriate motion, the sufficiency of the preliminary examination may be reviewed on this appeal. Like the plea in abatement, however, review of the district court's order denying the motion to dismiss must be limited to the issues advanced by the motion. Issues not raised by the motion and, therefore, not presented to the district court, are deemed waived. The scope of review of the preliminary hearing on this appeal is therefore limited to the single issue raised by appellant's motion to dismiss, i. e., failure to prove the use of a deadly or dangerous weapon, which issue we have previously examined and found wanting.

The final point raised by appellant relates to the question of a constitutional speedy trial, as distinguished from a statutory speedy trial. Trial was commenced well within the ninety days after arraignment as required by the statute, K.S.A.1973 Supp. 22-3402.

The...