State v. Tyler
| Decision Date | 02 July 1960 |
| Docket Number | No. 41858,41858 |
| Citation | 187 Kan. 58,353 P.2d 801 |
| Parties | STATE of Kansas, Appellee, v. Thomas Paul TYLER, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
In a criminal case, the state did not sufficiently lay a basis for the introduction of a transcript of the former testimony of an absent witness by merely offering testimony of a deputy sheriff that he attempted to serve a subpoena upon the witness and found that witness had moved to Oklahoma. It was further agreed that the state had made no effort to secure the voluntary appearance of the witness or to employ the uniform act to secure the attendance of witnesses from without the state.
W. C. Jones, Olathe, argued the cause, and Howard E. Payne and Howard T. Payne, Olathe, were with him on the briefs for appellant.
John J. Gardner, County Atty., Olathe, argued the cause, and John Anderson, Jr., Atty. Gen., and Robert Hoffman, Asst. Atty. Gen., were with him on the briefs for appellee.
In the court below, the appellant was convicted of stealing two sewing machines. He appeals his conviction and argues three propositions in his brief in this court.
We shall not follow the order of the assignments of error, but shall immediately turn to the important question raised by this appeal. Appellant complains that the transcript of a witness named Vancura, taken at the preliminary hearing, was allowed to be read to the jury without any real showing that the witness could not be produced at the trial of the case. The transcript was produced and read over the proper objection of appellant. Vancura had been manager of the store from which the alleged theft had occurred and was the only witness who testified that such theft had actually taken place. He was in reality the complaining witness.
The only basis for the introduction of the transcript of Vancura's testimony consisted of the testimony of witness Williams, a detective or deputy sheriff, who testified that some three days before the trial he had taken a subpoena for Vancura to the sewing machine store in Mission; that he was advised that Vancura no longer worked at the store; that he then went to an address in Wyandotte county and found that Mr. Vancura did not live there any more. The witness further testified that he talked with neighbors and found that Mr. Vancura had moved to Miami, Oklahoma. The subpoena was then returned with endorsement 'unable to locate.'
Following this testimony of the deputy sheriff, the court allowed the state to read Vancura's testimony. In fact, at the time of the oral argument in this court, counsel quite frankly admitted that no attempt had been made to locate Vancura in Miami, Oklahoma for the purpose of securing his voluntary appearance, and counsel had not taken the trouble to ascertain whether or not Oklahoma had adopted the Uniform Act to Secure Attendance of Witnesses from Without the State, see G.S.1959 Supp. 62-2801 et seq.
It took this court only a few minutes to make its own investigation and to determine that Oklahoma had adopted the act and that it may be found in Oklahoma Statutes Annotated, title 22, § 721 et seq.
Attention is directed to the case of State v. McClellan, 79 Kan. 11, 98 P. 209, decided in 1908, long before...
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State v. Martin
...744 (1965); and People v. Dozier, 236 Cal.App.2d 94, 45 Cal.Rptr. 770 (1965). The only contrary authority we find is State v. Tyler, 187 Kan. 58, 353 P.2d 801 (1960). In the Tyler case, the witness was in an adjoining state and could have been reached by an automobile trip of about three ho......
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State v. Cooper, 10708
...municipal corporations in this state and places and distances between locations in this and adjoining states (State v. Tyler, 187 Kan. 58, 353 P.2d 801, 803(1) (1960); United States v. Hortze, 179 F.Supp. 913, 915(2) (S.D.Cal.1959); State v. Saunders, 245 N.C. 338, 95 S.E.2d 876, 879 (1957)......
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State v. Guthrie
...question before the court, both with respect to Section 10 of the Bill of Rights and 60-2934, supra, is well summed up in State v. Tyler, 187 Kan. 58, 353 P.2d 801, where State v. McClellan, 79 Kan. 11, 98 P. 209, Syl. p1, is quoted as "Before the testimony of a witness given at a former tr......
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State v. Davis, 49021
...about his duty to appear in response to the subpoena. If he inquired, we would assume he was told he need not attend. In State v. Tyler, 187 Kan. 58, 353 P.2d 801, the court took judicial notice that an out-of-state witness's location in Miami, Oklahoma, was but a three-hour automobile ride......