State v. Wheeler

• Decision Date: 08 March 1913
• Docket Number: 18,208
• Citation: 89 Kan. 160,130 P. 656
• Parties: THE STATE OF KANSAS, Appellee, v. FRANK WHEELER, Appellant
• Court: Kansas Supreme Court

130 P. 656

89 Kan. 160

THE STATE OF KANSAS, Appellee, v. FRANK WHEELER, Appellant

No. 18,208

Supreme Court of Kansas

March 8, 1913

Decided January, 1913.

Appeal from Washington district court.

Judgment reversed and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

1. CRIMINAL LAW--Trial--Evidence of Unconnected Offenses by Other Parties--Error. On a trial for one offense, evidence tending to prove other distinct unconnected offenses by other parties with whom it was not shown that the defendant had associated, conspired, or was in any way connected, is irrelevant.

2 Same. Evidence that a defendant in a criminal action had been arrested and given bail for another distinct offense not connected with the one for which he is on trial, and that other persons, with whom it was not shown that he had conspired, associated, aided or been connected with, have been convicted of such other offenses, is irrelevant.

3. Same. In the light of the circumstances stated in the opinion it is held that the admission of the irrelevant testimony referred to in the above first and second paragraphs was prejudicial error.

Edgar Bennett, of Washington, for the appellant.

John S. Dawson, attorney-general, S. N. Hawkes, assistant attorney-general, and J. R. Hyland, county attorney, for the appellee.

OPINION

BENSON, J.:

The defendant appeals from a conviction for burglary and larceny.

About 2 o'clock on the morning of December 3, 1910, the Taft State Bank at Hanover, in Washington county, was broken into and over $ 4000 in money was stolen from its safe. Several explosions were heard, and four men were seen standing outside the bank building. A citizen approaching the building inquired what was going on, and one of the men answered, "we are robbing this bank, and if you don't go back I will kill you." After the robbers had left, the vault and safe were found blown open and the money gone. The front door appeared to have been pried open. About forty minutes before the explosion an automobile carrying five men was noticed coming from the south, going in the direction of a bridge about a half mile north and west of the bank, outside of the town. At daylight the sheriff and his assistants found automobile tracks indicating that the car had been turned out of the road near this bridge, and back into the road again, the tracks leading north. These tracks were followed to Gerardy, where they turned east. The pursuers, however, proceeded north about five miles to Lanham, in Nebraska, where the tracks were again seen and followed north to a point near Odell, where they turned east and were lost. The pursuers went on about fourteen miles to Wymore, which is thirty miles northeast of Hanover. The places mentioned are on the usual traveled road between Hanover and Wymore. After visiting Beatrice, the sheriff's party returned to Wymore. Leaving Wymore at 4 o'clock P. M., they proceeded a short distance, when their car became disabled. At their request, the defendant then took them in his automobile, a five-passenger touring car, to resume the journey. Owing to an apparent want of knowledge of the route taken, and accidents to the car, they were about four hours on the way, reaching Hanover at midnight. It appears that the defendant had formerly been engaged in the shop service of a railway company, later in conducting a clubhouse in Wymore, and for a short time before this occurrence had been running an automobile for hire. He did not appear to be skillful in managing the car. On the trip the defendant told the sheriff that he had been to Lincoln with a bunch of traveling men the night before.

Evidence was given tending to show that an auto mobile carrying five men was seen coming from the south on the road from Odell to Wymore about 5 o'clock on the morning of December 3, 1910, and that the defendant was driving the car. The witness, standing at the roadside, recognizing Wheeler, said, "Hello," but received no response. The other occupants of the car were not recognized by the witness. Another witness testified that he saw a dark-red car with five men in it, driven by the defendant, pass a corner in Wymore at 6 o'clock that morning, coming from the direction of Odell, on the usual route. The witness recognized the defendant as the driver, but not positively. He identified the other passengers in the car as Red Watson, Frank Black, or "Blackie," Neil Mulcahy, and Frank Jackson, or "Shorty." These four, with Dan Carney, called "Crippled Dan," Crawford or Carlisle, and others, called "Johnboys," associated together at Henry Hoerr's house, where some of them boarded, and at O'Donnell's saloon and other drinking resorts in Wymore. After this burglary the four mentioned appear to have left Wymore and were not seen there afterwards. The defendant, however, appears to have remained, pursuing his accustomed business. The defendant's car was seen on the morning of the same day, December 3, standing in a garage next to the door opening upon an alley. The direction that the car was taking when seen at the corner was toward this alley. The witness who saw the car pass the corner testified that sometime afterwards he heard the defendant say that he was in Hanover that night; that he had a bunch of traveling men; and that he passed these yeggmen on the road broken down. A tool house on the railway near the bridge before referred to was broken into that night, and a pick and track wrench taken from this shop were found in the bank the morning of the robbery.

The fact of the association together of the men called "Johnboys" and by some yeggmen having been shown, as already indicated, and also by other testimony, the state offered evidence showing that Henry Hoerr was seen afterwards in jail at Marysville, where he was confined on a charge of robbing the Beattie State Bank, on November 8, 1910 (The State v. Hoerr, 88 Kan. 573, 129 P. 153); also, that Dan Carney had been arrested and convicted of the same burglary, and that Mulcahy was also convicted and sentenced at Marysville. While this evidence was being introduced the presiding judge inquired of the prosecuting attorney whether the necessary connection would be shown and being answered in the affirmative, overruled an objection and received the evidence. After it had been admitted, a motion to strike this evidence out was overruled. Later in the trial, the sheriff of Marshall county, a witness for the state, was permitted to testify, over the objection of the defendant, that he had arrested Henry Hoerr for the robbery of the Beattie State Bank; that he had also arrested Mulcahy for burglarizing the Waterville bank, on December 31, 1910, and also Dan Carney for the Beattie State Bank robbery; and that these men had been tried and convicted. He was also allowed to testify that he arrested the defendant on February 5, 1911, upon a charge of burglarizing the Beattie State Bank, on November 8, and that he was out on bond. The defendant objected to all this evidence, and after it was received, moved to strike it out, but the motion was overruled.

The police judge of Wymore was allowed to identify pictures of the so-called "Johnboys," which were offered in evidence. He gave their names as heretofore stated, adding, however, that of another. He was then asked, "What was the business of those men you have just enumerated?" An objection was overruled, and the witness stated that they had no business; that they stayed around Henry Hoerr's house and O'Donnell's saloon; that they were coming and going, and that four or five of them had been arrested.

The city...