State v. Stephens

• Decision Date: 06 November 1937
• Docket Number: 33538.
• Citation: 72 P.2d 975,146 Kan. 660
• Parties: STATE v. STEPHENS.
• Court: Kansas Supreme Court

72 P.2d 975

146 Kan. 660

STATE v. STEPHENS.

No. 33538.

Supreme Court of Kansas

November 6, 1937

Syllabus by the Court.

A refusal to grant continuance was not reversible error where no written motion for continuance, nor affidavit in support thereof, was filed, and witness whose testimony was deemed essential testified and on motion for new trial no showing was made concerning additional or stronger evidence which would or could have been offered on behalf of defendant in event of continuance (Gen.St.1935, 60-2934, 62-1414 62-1718).

A court or jury is not required to believe or accept as true testimony of witnesses, although not contradicted by direct evidence.

Evidence sustained conviction of unlawful possession of intoxicating liquor, notwithstanding person other than defendant claimed to be owner of liquor involved.

1. A court or jury is not required to believe the testimony of a witness merely because there is no direct testimony to contradict the same.

2. The record in a criminal action examined and held: (1) it is not affirmatively made to appear the trial court erred in refusing to grant a continuance or that the substantial rights of defendant were affected thereby; (2) although another than defendant claimed to be the owner of the liquor in question, the evidence was sufficient to support the charge of unlawful possession of such liquor by defendant.

Appeal from District Court, Sedgwick County, Division No. 4; I. N Williams, Judge.

Robert L. Stephens was convicted of possessing intoxicating liquor and he appeals.

Tom Harley and Tom Harley, Jr., both of Wichita, for appellant.

C. V Beck, Atty. Gen., C. Glenn Morris, Asst. Atty. Gen., and Eli Eubanks, Co. Atty., and O. W. Helsel, Asst. Co. Atty., both of Wichita, for the State.

WEDELL Justice.

This was a criminal action in which defendant was charged with and convicted of having intoxicating liquor in his possession. On appeal he contends the trial court erred in refusing to grant a continuance and that the evidence did not establish the charge of possession.

Concerning the first alleged error, defendant contends the county attorney had agreed to a continuance and that the county attorney, and not the district court, is vested with authority to control continuances in criminal cases. On the record before us the question is not whether the trial court or the county attorney has authority to control continuances in criminal cases but rather whether the trial court erred in refusing to grant a continuance. The answer requires a review of the record. On argument of the motion for a new trial counsel for defendant stated the county attorney had agreed to a continuance. The State insists no such promise was mentioned by counsel for defendant on the day of trial and that such promise was first mentioned in the argument of the motion for a new trial. The county attorney was not present at the time of the argument of the motion for a new trial nor at the trial of the action. The deputy county attorney tried the case and also represented the State on the motion for a new trial. This is a court of review and we are, of course, obliged to review the case on the basis of the record. The record before us does not disclose that counsel for defendant advised the trial court, prior to trial, of an agreement with the county attorney. The record simply discloses that on the morning before the trial the deputy county attorney advised counsel for defendant that he would not object to a continuance and that this statement was made at a time when the State's witnesses had not yet arrived. Later they did arrive. Counsel for defendant agreed, before the trial, this was the only statement the deputy county attorney had made. At about 9 o'clock of that morning, counsel for defendant made only an oral application for a continuance. A continuance in criminal cases is granted for like causes and under like circumstances as in civil cases. G.S. 1935, 62-1414. A motion for continuance on the ground of absence of evidence may be granted only on affidavit. G.S.1935, 60-2934. No written motion for a continuance nor an affidavit in support thereof was filed in the instant case, and the witness whose testimony was deemed essential by defendant was present and testified. On motion for a new trial not the slightest showing was made concerning additional or stronger evidence which would or could have been offered on behalf of defendant in the event of a continuance. Counsel for defendant simply says that by reason of his agreement with the county attorney he made no preparation for trial. Nothing in the record discloses anything further counsel for defendant would or could have done in preparation for trial than that which he did do.

Counsel for defendant on motion for new trial also stated that some time in April, and before the trial on April 19, 1937, he had advised the county attorney his main witness would be present to testify, but that he had not yet received his fee from defendant, and therefore desired a continuance and that the county attorney had agreed thereto. The record does not disclose counsel for defendant advised the trial court prior to trial of any of these facts nor is it contended the fact he had not received his fee would constitute ground for a continuance. The record discloses the trial court was entirely fair with defendant. When the statement on motion for a new trial was made relative to the county attorney's agreement, the record discloses counsel for defendant was asked by the court whether he desired to have the county attorney (Mr. Eubanks) come in. In answer to this inquiry the record reads: "No response." In view of these facts, the question is whether the record affirmatively discloses the trial court committed reversible error in refusing to grant a continuance. The answer must be in the negative. By legislative mandate we are compelled to give judgment without regard to exceptions which do not affect the substantial rights of the parties. G.S.1935, 62-1718. It has not been made to appear defendant's substantial rights were affected in the slightest by the refusal to grant a continuance. It follows the first contention cannot be sustained.

What about the sufficiency of evidence to support the charge of possession? Defendant earnestly contends that, according to the testimony of his witness, Miller, the whisky belonged to him (Miller), and that there was no direct evidence to contradict that testimony. In that...