State v. Underwood

• Decision Date: 11 December 1897
• Docket Number: 10872
• Citation: 51 P. 274,58 Kan. 783
• Parties: THE STATE OF KANSAS v. WILLIAM SHIVE AND B. UNDERWOOD
• Court: Kansas Supreme Court

51 P. 274

58 Kan. 783

THE STATE OF KANSAS v. WILLIAM SHIVE AND B. UNDERWOOD

No. 10872

Supreme Court of Kansas

December 11, 1897

Decided January, 1897.

Error from Reno District Court. Hon. M. P. Simpson, Judge.

Sentence of conviction reversed.

L. C Boyle, Attorney General, L. M. Fall, County Attorney, and Z L. Wise, for the State.

Martin & Roberts, for appellants.

OPINION

DOSTER C. J.

This is an appeal from a sentence of conviction for robbery. Just after dark on the twenty-third of February, 1897, two masked men entered the house of Jacob Willems, a farmer residing in the northeastern part of Reno County, and robbed him and his son, Jacob J. Willems. They took eighty-five or ninety dollars in gold and paper currency belonging to Jacob Willems, and one dollar and eighteen cents of silver and pennies which belonged to Jacob J. Willems, the son. A few days after the robbery, a neighbor of the Willems found some pieces of paper near a haystack, about three and one-half miles south of their house. These pieces of paper were pasted together by the finder, and appeared to form an envelope addressed to the defendant Shive at North Market Street, Wichita, Kan., on which street he lived, with a card directing it to be returned to No.-- East Tenth Street, Hutchinson, Kan., on which street the defendant Underwood lived. It was stamped and postmarked at Hutchinson, but the date of mailing was too indistinct to be read. At the trial, three or four persons identified the defendants as having been seen, on the afternoon of the robbery, at the haystack where the pieces of envelope were found. There was no evidence that this envelope had ever been in the possession of either of them. There was no evidence that the writing upon it was the writing of either of them. There was no evidence to connect the envelope, its contents, or the writing upon it, with either of them. The only evidence which connected either of the defendants with the pieces of paper found at the haystack and pasted together and introduced in evidence, was the testimony of the three or four witnesses who claimed to have seen them at the haystack the afternoon of the day in the evening of which the robbery occurred.

The defendants objected to the introduction of the envelope because incompetent, irrelevant, and immaterial, and because it had not been connected with either of them by proof of their ownership or possession of it, nor by proof of their handwriting upon it. These objections were overruled; the court remarking at the time: "They are only competent as a circumstance." A number of witnesses testified that the defendants were present in the city of Hutchinson at the hour when the offense was committed, and that they were present there at the time the witnesses for the State identified them as being at the haystack where the pieces of envelope were found. The admission in evidence of this envelope constitutes the ground of the principal claim of error. No case directly in point has been called to our attention, but we are constrained to say that the admission of this torn envelope in evidence was error. It was admitted as a circumstance to prove that the defendants were in the vicinity of the place where the crime was committed, a short time before its commission, and not in the city of Hutchinson at that time, as testified to by some of the witnesses. If there is between it and the defendants that logical connection which satisfies the rigid requirements of the criminal law, its admission was proper; otherwise not.

A robbery having been committed, and the defendants being charged with its commission, proof of the fact that they were in the vicinity where it occurred was, of course, logically pertinent. Pieces of paper were found at a point a few miles from the scene of the crime. When they were put together, the name of one of the defendants and his post-office appeared addressed thereon, and the return-card of the other defendant likewise appeared on it. No evidence was offered showing that the defendant to whom the envelope was addressed had ever had it in his possession, nor was any evidence offered tending to show that the other defendant addressed the envelope to...