State v. Streeter
| Decision Date | 03 July 1952 |
| Docket Number | No. 38605,38605 |
| Citation | 245 P.2d 1177,173 Kan. 240 |
| Parties | STATE v. STREETER. |
| Court | Kansas Supreme Court |
Syllabus by the Court.
Assignments of error relating to admission of evidence, instructions given and refused, and sufficiency of evidence to sustain the verdict of guilty in a prosecution for an attempt to commit the crime against nature contrary to the provisions of G.S.1949, 21-101 as it relates to G.S.1949, 21-907, considered and held to be without merit.
James H. Bradley, of Olathe, and Charles Rooney, of Topeka, were on the briefs for the appellant.
Harold R. Fatzer, Atty. Gen., Paul E. Wilson, Asst. Atty. Gen., John Anderson, Jr., County Atty., and George A. Lowe and Earl E. O'Connor, Asst. County Attys., Olathe, were on the briefs for the appellee.
Defendant was convicted and sentenced in the district court on two counts of an attempt to commit the crime against nature contrary to the provisions of G.S.1949, 21-101 as it relates to G.S.1949, 21-907. No useful purpose can be served by relating the evidence in this case nor is it necessary in a determination of the issues raised on appeal. Defendant first asserts that the trial court erred in admitting certain testimony. On the day of the trial, the state was permitted over the objections of defendant to read the transcript of testimony of certain witnesses given at the preliminary examination for the offenses upon which the defendant was being tried. The basis for admission of this testimony was that the witnesses could not be served with subpoena process and were outside the jurisdiction of the trial court; that a subpoena had previously been issued to the witnesses at their address at a trailer camp, Trailer Lake Park, Kansas, is admitted. Prior to the offer of this testimony, the state placed on the witness stand the deputy sheriff, who testified that he attempted to serve subpoenas on these witnesses on September 7, 1951, five days before trial of the action on September 12, 1951; that he went to Trailer Lake, a trailer camp, where these witnesses were living at the time of the preliminary hearing, but he was unable to serve them. He was advised by the manager of the camp that these people had moved out of the state, some of them to California. He was unable to serve any of the people whose names appeared on the subpoena.
Defendant contends this showing is not sufficient to show that due diligence was used to serve the witnesses and relies on State v. McClellan, 79 Kan. 11, 98 P. 209, for his authority. In the McClellan case, the only foundation for the introduction of the testimony of a witness given at the preliminary hearing was the production by the county attorney of a subpoena which had been issued for the witness showing a return by the sheriff of non est. On this showing alone, the evidence was read to the jury. We held in that case that such a showing was insufficient to meet the requirements of due diligence.
We do not have here, as in the McClellan case, the simple return of a subpoena non est as a basis for offer of testimony previously given. In the instant case, testimony was offered to show an attempt to get service of the subpoena and that the witnesses could not be found within the jurisdiction of the court. We are of the opinion that this evidence was sufficient on the part of the State to prove that the whereabouts of the witnesses was unknown and could not be ascertained after diligent search. And on all the evidence presented, we have the implied finding of the trial court that due diligence had been used to discover and produce those witnesses. When the trial court is satisfied from the evidence that the State has made every reasonable effort to procure the attendance of a witness and is unable to do so, it is not error for the court to admit on the trial of the action the testimony of such witness given at a preliminary examination. State v. Chadwell, 94 Kan. 302, 146 P. 420; State v. Burton, 101 Kan. 62, 165 P. 847; State v. Eason, 163 Kan. 763, 186 P.2d 269.
Defendant next contends the trial court erred in rejecting his requested instructions concerning admissions by defendant and accomplice testimony. He concedes that the testimony of the accomplice without corrobration is sufficient to convict in a criminal action, but contends the trial court erred in failing to instruct the jury as requested on the weight to be given and credibility of such testimony. On an examination of the inadequate record and briefs furnished by the parties in this case, we find the trial court gave to the jury at least eighteen separate instructions, none of which are contained in the abstract, and only three are set forth in the State's brief. It is the duty of every appellant to abstract such portions of the record as are essential to an intelligent review of the particular issue or issues involved. Unless that is done, obviously this court is in no position to review the error...
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...192 Kan. 659, 391 P.2d 95; State v. Brown, 181 Kan. 375, 312 P.2d 832; State v. Bonskowski, 180 Kan. 726, 308 P.2d 168; State v. Streeter, 173 Kan. 240, 245 P.2d 1177. Also, see K.S.A. 60-459[g] ).' Finally, it should be noted that the finding of "unavailability" by the trial court is a dis......
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...192 Kan. 659, 391 P.2d 95; State v. Brown, 181 Kan. 375, 312 P.2d 832; State v. Bonskowski, 180 Kan. 726, 308 P.2d 168; State v. Streeter, 173 Kan. 240, 245 P.2d 1177. Also, see K.S.A. 60-459(g)).' (p. 338, 479 P.2d p. See, also, State v. Bey, 217 Kan. 251, 535 P.2d 881; State v. Kirk, 211 ......
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...192 Akn. 659, 391 P.2d 95; State v. Brown, 181 Kan. 375, 312 P.2d 832; State v. Bonskowski, 180 Kan. 726, 308 P.2d 168; State v. Streeter, 173 Kan. 240, 245 P.2d 1177. Also, see K.S.A. 60-459(g)).' (206 Kan. p. 338, 479 P.2d p. (See also State v. Kirk, 211 Kan. 165, 505 P.2d 619; State v. C......
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