State v. Trams

• Decision Date: 03 March 1962
• Docket Number: No. 42600,42600
• Citation: 189 Kan. 393,369 P.2d 223
• Parties: The STATE of Kansas, Appellee, v. Gilbert TRAMS, Appellant.
• Court: Kansas Supreme Court

Page 223

369 P.2d 223

189 Kan. 393

The STATE of Kansas, Appellee, v. Gilbert TRAMS, Appellant.

No. 42600.

Supreme Court of Kansas.

March 3, 1962.

Syllabus by the Court.

1. In a criminal action alleged trial errors not urged or presented on the hearing of a motion for a new trial are unavailing on appeal.

2. Specifications of error not included in the grounds of a motion for a new trial and called to the trial court's attention cannot be considered on appeal from a conviction in a criminal action.

3. The absence of a formal arraignment and plea of the defendant is effectively waived by the acts of the defendant in going to trial without objection and submitting the question of his guilt to the jury impaneled to try him, contesting every question in the case as fully as if there had been a formal arraignment, and not raising any objection as to the nonobservance of the formality until the verdict of the jury is returned.

4. Where the defendant in a criminal case in district court intends to rely upon an alibi as a defense, compliance with the requirements of G.S.1949, 62-1341 is a prerequisite to the admissibility of testimony of alibi witnesses.

5. Where the ground of the motion for a new trial is error in the exclusion of evidence or want of a fair opportunity to produce evidence, such evidence must be produced on the hearing of the motion by affidavit, deposition or oral testimony. If the above requirement is not complied with, the question of exclusion of evidence or want of fair opportunity to produce evidence is not open to appellate review.

6. Where the record fails to show what action was taken by the trial court with reference to some particular matter in a proceeding, it will be presumed, in the absence of an affirmative showing to the contrary, that the action of the court was regular and in accordance with the law.

7. Upon appeal, if susceptible of a reasonable interpretation to the contrary, the record of the proceedings of the trial court in a criminal action will not be interpreted to show error.

Charles D. Anderson, Wichita, argued the cause, and Donald B. Clark and Marvin Appling, Wichita, were with him on the briefs, for appellant.

Morgan Wright, County Atty., Larned, argued the cause, and William M. Ferguson, Atty. Gen., was with him on the briefs, for appellee.

WERTZ, Justice.

Defendant (appellant) Gilbert Trams appeals from a conviction of burglary with explosive as defined by G.S.1949, 21-525, and grand larceny as defined by G.S.1959 Supp., 21-533. Upon notice and proof of a prior conviction of a felony he was sentenced on each count under the habitual criminal act (G.S.1949, 21-107a) to confinement in the Kansas State Penitentiary, the sentences to run concurrently.

At the outset we are confronted with the state's challenge of the defendant's right to be heard. In view of the challenge it is unnecessary to relate the facts of the crime other than to say that there was ample evidence to sustain the conviction as to both counts of the information.

Throughout the trial defendant was represented by able counsel. After the jury returned its verdict of guilty counsel filed a motion for a new trial based upon five alleged trial errors: (1) the admission of illegal testimony; (2) refusing to grant a continuance, not permitting defendant to call alibi witnesses, and in allowing the admission of the testimony of one Retha Scott; (3) the verdict was not sustained by sufficient evidence; (4) the verdict was contrary to law; and (5) advising the jury after it had retired to deliberate that the state had dismissed count one of the information.

The motion for new trial came on for hearing. Counsel for the defendant stated that he desired to present to the court one item, i. e., that the court erred in failing to instruct the jury on lesser offenses of burglary of which defendant might have been found guilty, and further stated that probably this was the best argument he could present to the court on his motion for a new trial. The trial court overruled defendant's motion, and defendant appeals to this court and specifies as error: (1) that the verdict was contrary to law in that the defendant was not arraigned; (2) defendant was prevented from introducing alibi witnesses; (3) the admission of the testimony of Retha Scott; and (4) that the verdict was contrary to law by reason of the failure to submit to the jury forms of verdict finding the defendant not guilty.

The first and fourth specifications of error were neither included in defendant's motion for a new trial nor presented at the hearing on the motion, and none of defendant's specifications of error was presented to the trial court at the hearing on the motion for a new trial. The aforementioned alleged error argued at the hearing of the motion for new trial has since been abandoned by defendant.

The rule in this jurisdiction is well established that reversible error cannot be predicated on trial errors which were not urged or presented to the trial court on the hearing of a motion for a new trial. (State v. Hayes, 169 Kan. 505, 219 P.2d 442.) Moreover, it is a long-standing rule of this court that in a criminal action alleged trial errors not heard or presented at the hearing of a motion for a new trial are unavailing on appeal. (State v. Tague, 188 Kan. 462, 363 P.2d 454; State v. Burnett, 189 Kan. 31, 32, 367 P.2d 67.)

This court has repeatedly held that specifications of error not included in the grounds of a motion for a new trial and called to the trial court's attention cannot be considered on appeal from a conviction in a criminal case. (State v. McManaman, 175 Kan. 33, 258 P.2d 997; State v. Stewart, 179 Kan. 445, 447, 296 P.2d 1071; State v. Haught, 180 Kan. 96, 100, 299 P.2d 573; State v. Morrow, 186 Kan. 342, 349 P.2d 945; State v. Hickock & Smith, 188 Kan. 473, 482, 363 P.2d 541.)

Inasmuch as defendant's first and fourth specifications of error were not included in his motion for a new trial and his second and third specifications of error, along with his first and fourth, were not called to the attention of the trial court nor urged at the hearing on the motion for a new trial, defendant is not entitled to be heard. Notwithstanding, we have carefully considered his contentions of error and have determined that each is...