State v. Suing
| Decision Date | 04 November 1972 |
| Docket Number | No. 46573,46573 |
| Citation | 210 Kan. 363,502 P.2d 718 |
| Parties | The STATE of Kansas, Appellee, v. Connie Marie SUING, Appellant. |
| Court | Kansas Supreme Court |
1. Where no request is made for a particular instruction, error cannot be predicated on the failure to give it unless such failure is clearly erroneous.
2. A separate instruction on the defense of alibi is not required where the instructions given define the elements of the crime charged and require the jury to find
the presence of each element beyond a reasonable doubt before it can convict.
3. The sufficiency of the verification of a photograph is a preliminary question of fact to be decided by the trial judge, and his ruling will not be disturbed on appeal unless an abuse of discretion is shown.
4. It is not error to admit into evidence relevant photographs which are sufficiently good likenesses of the object portrayed to serve the purpose for which offered.
5. The record in a prosecution for aggravated robbery is examined and it is held, the trial court did not err (1) in failing to give a specific instruction on the defense of alibi and (2) in admitting certain photographs into evidence.
Christopher J. Redmond, of Redmond & Redmond, Wichita, argued the cause, and Owen J. Redmond, Jr. and L. Joseph Smith, Wichita, were with him on brief for appellant.
Reese Jones, Deputy County Atty., argued the cause, and Vern Miller, Atty. Gen., and Keith Sanborn, County Atty., were with him on brief for appellee.
FOTH, Commissioner:
Appellant was convicted by a jury of aggravated robbery and she appeals.
Her prosecution arose out of the robbery of the Taco Tico drive-in restaurant at about 11:30 p. m. on November 17, 1970. Two employees and two customers identified appellant as the woman who demanded the establishment's money at gunpoint and walked out with $150 to $175.
The robber was driven away from the scene in an automobile described by witnesses as a dirty, white, 1962 Chrysler with distinctive rust spots on the right front door. According to the state the owner and driver of this vehicle was one Paul E. Skinner, who was also convicted of the same robbery in a separate trial. His conviction is affirmed in a companion case, State v. Skinner, 210 Kan. --, 503 P.2d 168, this day decided. Officers located such a car later that night parked outside the Gasser Club. In due course appellant and Skinner got in the car, and as they were driving away were stopped and arrested. After her arrest appellant was searched at the police station, where $3 was found in her pocket and $77 in her bra. Skinner was relieved of $134 in a similar search.
Appellant basically claims two trial errors. First, she complains of the trial court's failure to instruct on her defense of alibi, in support of which she introduced considerable testimony. She made no request for such an instruction and made no objection to those given. She is thus precluded from asserting this claim under K.S.A.1971 Supp. 22-3414(3), unless the failure was 'clearly erroneous.' In State v. Skinner, supra, involving appellant's comrade in crime, an alibi instruction was requested and refused. We are there holding after full discussion and review of the authorities, which need not be repeated here, that such a refusal was proper. Where the instructions define the elements of the crime charged and require the jury to find the presence of each element beyond a reasonable doubt in order to convict, it is not necessary to give a separate instruction on a defense of alibi, even if requested. It follows, a fortiori, that the failure to give such an instruction is not error where no request is made.
Appellant's second point goes to the admission into evidence of two photographs of the getaway car. Her complaint is that no one said that the photographs were 'true and accurate reproductions' of the car; i. e., the 'magic words' were lacking. She cites Shepard v. Dick, 203 Kan. 164, 169, 453 P.2d 134, where we said:
'. . . Pictures which are properly identified as true and accurate reproductions of a subject matter in evidence and which are relevant to the issues are generally admissible in evidence.'
The thrust of that and similar statements is well characterized in the annotation at 9 A.L.R.2d 904 (quoted ...
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State v. Williams
...22–3414[3]; State v. Birch, 221 Kan. 122, 558 P.2d 119 [1976];State v. Nesmith, 220 Kan. 146, 551 P.2d 896 [1976];State v. Suing, 210 Kan. 363, 502 P.2d 718 [1972].)An instruction is clearly erroneous when the reviewing court reaches a firm conviction that if the trial error had not occurre......
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State v. Williams
...the jury are admissible when the photographs themselves, if viewed in a vacuum, would be otherwise objectionable.”); State v. Suing, 210 Kan. 363, 365, 502 P.2d 718 (1972) ( “ ‘When a picture is offered as a general representation of a scene or object, very slight proof of reliability may b......
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State v. Pham
...and that they accurately depicted what he saw on the videotape. Although no Kansas case is directly on point, State v. Suing, 210 Kan. 363, 502 P.2d 718 (1972), provides some guidance. There, this court considered photographs of a getaway car, which were admitted even though no one testifie......
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State v. Stafford
...erroneous." (K.S.A. 22-3414(3); State v. Birch, 221 Kan. 122, 558 P.2d 119; State v. Nesmith, 220 Kan. 146, 551 P.2d 896; State v. Suing, 210 Kan. 363, 502 P.2d 718.) An instruction is clearly erroneous when the reviewing court reaches a firm conviction that if the trial error had not occur......