State v. Winters
| Decision Date | 09 January 1926 |
| Docket Number | 26,676 |
| Parties | THE STATE OF KANSAS, Appellee, v. FOREST W. WINTERS, Appellant |
| Court | Kansas Supreme Court |
Decided January, 1926.
Appeal from Harper district court; GEORGE L. HAY, judge.
Judgment affirmed.
SYLLABUS BY THE COURT.
1. WITNESSES -- Privileges of Accused -- Discretion of Court After Waiver. When one charged with crime becomes a witness the extent to which he may be cross-examined as to his past life and conduct for the purpose of affecting his credibility as a witness rests largely in the sound discretion of the trial court.
2. CRIMINAL LAW--Instructions--Alibi. Upon the trial of one charged with the larceny of an automobile found in his possession soon after the larceny and some distance from the place of the theft, where the defense included an alibi, it was proper for the court to instruct the jury that they might find defendant guilty if they found he stole the automobile or aided and abetted in its theft.
E. C. Wilcox and J. Howard Wilcox, both of Anthony, for the appellant.
Charles B. Griffith, attorney-general, C. A. Burnett, assistant attorney-general, and R. H. Beebe, county attorney, for the appellee.
This is an appeal from a conviction of the larceny of an automobile, the property of Albert B. Moore. The state's evidence, in effect, was that on the afternoon of July 31, 1923, Mr. Moore and his wife drove their Ford touring car from Oklahoma into Anthony, Kan., stopped at a filling station and had the car filled with oil, gas and water, and parked it on the street in front of a restaurant about seven-thirty in the evening and went into the restaurant for dinner. They went to get the car in about thirty minutes and found it was gone. Among other things, the car had in it a traveling bag, in which was a suit of clothes, in the pocket of which was Mr. Moore's name. Also in the car was a "For Hire" sign. The car was a late model, had been used about ten months, and was worth about $ 400. About four-thirty in the afternoon of August 1 defendant drove this car into the town of Depew, Okla., and parked it in or near an alley. Depew is about 200 miles from Anthony, Kan. On the street in Depew defendant met the city marshal and another officer. Something about his conduct caused the officers to suspect him and they determined to keep some watch of his movements. About six o'clock defendant and a young man by the name of Carlysle, who was clerking in a hardware store at Depew, came out of the store, got into the Ford touring car and started to drive out of town. The officers got into another automobile and followed them. After driving some distance into the country defendant and his companion turned into a farm house. The officers drove by some distance and turned around. In a few minutes defendant and his companion drove out on to the road and started toward town, and the officers followed them. Observing that he was being followed, defendant speeded up his car, and the officers did likewise. Defendant drove rapidly into and through town, but in slowing down to turn one of the corners Carlysle jumped out. Defendant started to drive out of town by another road, but this road crossed a stream near the edge of town where there was a bridge, and at that time some wagons heavily loaded with oil drilling material were crossing the bridge, which forced defendant to slow down and wait. Fearing he would be overtaken by the officers, defendant abandoned the automobile and ran off through the weeds and timber along the stream. The officers took the automobile back to a garage. Defendant did not go back to the car or make any effort to claim it. Moore had his car insured, notified the insurance company, and through it the car was located. When taken by the officers the "For Hire" sign which was in the car when it was stolen was still in the car. Also Mr. Moore's suit of clothes was in the car in a traveling bag which did not belong to him. The license number had been removed and it bore a Kansas dealer's license tag. There is no controversy in this case about the car which defendant drove into Depew being Moore's car which was stolen from Anthony the evening before.
The defense included an alibi. Defendant testified in his own behalf that he worked in the oil fields, his occupation being a tool dresser; that in July, 1923, he was working in or about Webb City, Okla.; that his father came from Nebraska to Enid on business, and from there to Webb City to see defendant, who at that time was at Stillwater; that his father and two women with whom they were acquainted drove from Webb City over to Stillwater to see him; that they visited there in the afternoon and stayed all night at Stillwater; that while eating breakfast the next morning at a restaurant a Mr. Haskins, whom he knew, came to him and told him that he had a car he wanted taken to Depew, and arranged with defendant to take it, paying him $ 5, and that he left Stillwater about eight o'clock in the morning and drove to Depew, getting in there some time in the afternoon; that he was acquainted with Carlysle and visited him in the hardware store; that Carlysle told him if he would "stick around" until he got through work that evening he knew where they could get some whisky; that he did stay around until six o'clock, when he and Carlyle got into the car and drove out to a place Carlysle knew in the country, where they got a half gallon of whisky; that he noticed the officers following him, especially on the trip back from the country, and supposed they were after him because he had whisky, and that he drove fast to get to town, where he slowed up and let Carlysle out, and started to drive away, when he was blocked by the teams with their loads on the bridge; that he threw the jug containing the whisky out into the weeds near the road and stopped the car and ran out into the timber. He denied ever being at Anthony and contended that he was at Stillwater the day the car was taken, and in the afternoon and evening was in the company of his father and their friends. To this extent his testimony was corroborated by his father and the two women.
Several points are relied upon for reversal. When defendant was on the witness stand he testified, on cross-examination, that he had not been convicted of any crime, but that he had plead guilty to a charge of...
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...of theft or not guilty. Cf. State v. Royal, 234 Kan. 218, 670 P.2d 1337 (1983); State v. Warren, 221 Kan. 10; and State v. Winters, 120 Kan. 166, 241 Pac. 1083 (1926). No error is shown from the trial court's refusal to instruct on unlawful deprivation of Next, appellant asserts the trial c......
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