State v. Wade

• Decision Date: 08 December 1962
• Docket Number: No. 43159,43159
• Citation: 376 P.2d 915,190 Kan. 624
• Parties: STATE of Kansas, Appellee, v. Thomas Harry WADE, Appellant.
• Court: Kansas Supreme Court

Page 915

376 P.2d 915

190 Kan. 624

STATE of Kansas, Appellee, v. Thomas Harry WADE, Appellant.

No. 43159.

Supreme Court of Kansas.

Dec. 8, 1962.

Syllabus by the Court.

1. This is a criminal action where the complaint upon which a warrant for defendant was issued contained one count of grand larceny of personal property from a locked station wagon, a second count for the attempted grand larceny of the station wagon, and a third count for malicious destruction of personal property under the value of $20.00. The city court conducting the preliminary hearing made proper findings under G.S.1949, 62-618 and 62-620 and bound the defendant over to the district court for trial on the first two felony counts. It found defendant guilty of a misdemeanor as charged in the third count and assessed a penalty of ninety days in the county jail therefor. Defendant immediately took an appeal to the district court from such sentence and, as more fully reflected in the opinion, prior to trial in the district court on the felony counts, the state dismissed the third count in the information which was identical with the third count in the complaint charging the misdemeanor. The record is examined and it is held, The trial court did not err (1) in its order sustaining the state's demurrer to defendant's plea in abatement based on G.S.1949, 62-1449; (2) in admitting into evidence exhibits obtained from defendant's Buick automobile while such automobile was properly in the custody of the sheriff and (3) in admitting oral testimony on cross-examination of defendant's witness attacking the credibility of the witness which testimony was not objected to by defendant.

2. In a criminal case such as set out above where the record shows that evidence was admitted without objection in the court below, belated objections on appeal to the effect that the trial court erred in the admission of such evidence are not subject to appellate review.

Roy Kirby, Coffeyville, on the briefs, for appellant.

B. D. Watson, Asst. County Atty. (William M. Ferguson, Atty. Gen., and Glen Tongier, County Atty., on the briefs), for appellee.

ROBB, Justice.

This appeal in a criminal proceeding is from the verdict of the jury finding defendant guilty, under the first count in the information, of grand larceny of personal property in excess of the value of $400.00 belonging to Mr. and Mrs. Ray Payne which property had been placed in the Payne 1959 Rambler station wagon. The jury's verdict also found defendant guilty, under the second count in the information, of attempted grand larceny of the station wagon.

In the complaint filed in the city court of Independence a third count had been included charging defendant with a misdemeanor for malicious destruction of personal property and damages thereto in the amount of $15.00 which resulted from the breaking out of a window vent in the left front door of the Payne station wagon. Defendant had been found guilty of the misdemeanor and was sentenced to serve ninety days in the Montgomery county jail. Defendant had appealed from that conviction. The city court of Independence had bound defendant over to the district court of Montgomery county for trial on the above-mentioned two felony counts. After the appeal and the information, which had also originally included the misdemeanor charge as a third count, were lodged in the district court, the state dismissed from the information such third count based on the misdemeanor. Thus defendant stood for trial on the first and second counts charging felonies before the jury in the district court.

The Paynes, residents of Oklahoma City, Oklahoma, conducted a retail piece goods business. They purchased supplies in Kansas City and on their return trip home on the night of May 3, 1961, registered at a motel near Cherryvale. They parked their station wagon with merchandise inside in a place provided for that purpose and locked it. It was and had been raining. About midnight Mrs. Delores Driskel, a co-owner of the motel, saw a blue and white Buick automobile around the motel. About 1:30 a. m. she saw that the Buick was stuck in the mud in the driveway of the motel and the Payne station wagon was in front of it. A man she did not recognize got out of the Buick. She awakened her husband, they went outside, but found no one. About thirty minutes later she was again awakened and saw a red and white pickup truck behind the Buick. She saw two men and recognized one of them as Joe Vasquez (who was originally charged as co-defendant with defendant). The two men were attempting to hook a chain onto the Buick and then onto the station wagon. She and her husband went out and told them to leave the car there until morning. However, the men were able to get the Buick out and they left the premises. About 3:00 a. m. she was again awakened and recognized Vasquez and the other man whom she did not know. They were trying to hook a chain from the pickup truck to the Payne station wagon. She ran outside. Vasquez dropped the chain and the two men jumped into the pickup truck and drove southward.

At this time Mr. Payne was awakened and he found that his station wagon had been moved some twenty or thirty feet, the vent glass on the left front door was broken, the dome light had been torn out, and twenty-nine bolts of material together with other merchandise had been removed therefrom. A log chain was found hooked over the bumper of the station wagon. He drove the station wagon back to its original parking place and the sheriff was called to the scene.

On the way over to Cherryvale from Independence the sheriff and undersheriff saw the Vasquez pickup truck and defendant's Buick automobile with their owners in them parked side by side on the highway south of Cherryvale. The undersheriff recognized both vehicles and both men.

Officer Kolb of the Cherryvale police department saw and recognized Vasquez and defendant in the Vasquez pickup truck as they drove out of the motel about 3:00 a. m. He followed the truck south to an intersection of the highway with a county road and the truck turned west on the county road.

Later that day the sheriff arrested Vasquez and defendant and took the pickup truck and the Buick into custody. The sheriff found the articles of personal property taken from the Payne station wagon in an abandoned farmhouse near Cherryvale. The sheriff had plaster casts made of automobile tire tracks found in the mud around the abandoned farmhouse. Upon advice of the county attorney the sheriff removed the tires from defendant's Buick and also searched his car. Over the objection of defendant, a piece of white paper tape removed from defendant's Buick was favorably compared with tapes left on the bolts of material remaining in the Payne station wagon. Likewise the tires from defendant's Buick were introduced into evidence over defendant's objection on the ground of unlawful search and seizure of defendant's car. The plaster casts of the tire tracks were similar to defendant's tires.

The undersheriff also testified that the point where he and the sheriff saw Vasquez and defendant parked in their respective vehicles that morning was about a mile south of Cherryvale near the intersection of the highway and an east and west county road. In their investigation later that day they followed car tracks down this county road west of the intersection and came to an abandoned farmhouse wherein they found the personal property which had been removed from the Payne station wagon.

Defendant did not take the stand to testify in his own behalf. He called Vasquez as a witness but that witness's testimony in chief did not appear to be of too much assistance to defendant. On cross-examination his testimony of previous associations and law violations were brought out in some detail by the county attorney although they appear to have little or no connection with defendant. At the conclusion of all the evidence the jury returned its verdict of guilty on the two felony counts, as heretofore stated. The trial court received and adopted the verdict and since defendant had previously been convicted of a felony in Missouri, sentenced him as a second offender, under G.S.1949, 21-534 and 21-107a, to a term not exceeding ten years on the first count, and on count two sentenced him to a term not exceeding fifteen years under G.S.1949, 21-101, 21-534, and 21-107a. These sentences were assessed to run consecutively and not concurrently. Reuben E. Weatherford, Jr., and Monte Heasty, two regularly practicing attorneys of Montgomery county, were appointed by the court as counsel for defendant and represented him throughout the trial.

At the outset of the jury trial on the felony charges defendant filed a plea in abatement based on the following reasons:

'1. Both defendants herein were tried in the City Court of Independence on a complaint alleging the identical offense alleged in Count No. 3 in the information filed herein, and both defendants were convicted of said offense.

'2. In said trial in the City Court of Independence evidence was admitted of the offenses alleged in Counts No. 1 and No. 2 contained in the information herein, and said offenses might have been and were included in the complaint filed in said action in the City Court of Independence.

'3. Count No. 3 contained in the information filed herein could have been tried originally in The District Court of Montgomery County, Kansas, with Counts No. 1 and No. 2.

'4. Under the provisions of Section 62-1449 of the General...