State v. Wood
| Decision Date | 26 January 1963 |
| Docket Number | No. 43155,43155 |
| Citation | 190 Kan. 778,378 P.2d 536 |
| Parties | STATE of Kansas, Appellee, v. William Nay WOOD, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. The record in a criminal action is examined on appeal and held to disclose no error: (a) In the admission of evidence which was challenged at the trial on the ground that it was obtained by an illegal search and seizure; and (2) in other specified rulings of the trial court; all as more particularly set forth in the opinion.
2. Where an officer of the law makes an arrest of a motorist traveling on a public highway, upon probable cause that a felony has been committed at or before the time of the arrest, and there is reasonable cause to believe the motorist committed the crime, the arrest is lawful, even though no warrant has been issued for such arrest. Probable cause is said to exist if the facts and circumstances known to the officer warrant a prudent man in believing that the offense has been committed.
3. Where a lawful arrest is made and the person arrested is the driver and in control of an automobile, both the driver and the automobile may be searched as an incident of the arrest. This includes the whole interior of the automobile and the trunk. Under such circumstances the search and the seizure of evidence is reasonable, and whatever is found upon the person of the driver or in the automobile under his control, which it is unlawful for him to have, and which may be used to prove the offense, may be seized and held as evidence in the prosecution.
4. The provisions of G.S.1949, 21-107a, commonly known as the Habitual Criminal Act, have not been repealed, either directly or by implication, by the Postconviction Procedures Act, now appearing as G.S.1961 Supp., Ch. 62, Art. 22.
5. Under G.S.1949, 21-109, the provision for a minimum sentence of not less than fifteen years in the Habitual Criminal Act (G.S.1949, 21-107a) is construed to allow sentence for life or for any number of years not less than the prescribed minimum. (Following Fitzgerald v. Amrine, 154 Kan. 209, 117 P.2d 582.)
6. A motion for a new trial is unavailing to an accused in a criminal action, when it is based on the ground of newly discovered evidence, which, in effect, attempts to establish the defense of alibi, where such defense is inconsistent with the defense on the merits previously asserted at the trial.
William Nay Wood, appellant, was on the brief pro se.
Brock R. McPherson, Asst. County Atty., argued the cause, and William M. Ferguson, Atty. Gen., and Larry E. Keenan, County Atty., were with him on the brief for appellee.
This is a criminal action in which the appellant was tried and convicted on five felony counts as follows: (1) Burglary in the second degree of the Dr. Pepper Bottling Company, Great Bend, Kansas; (2) grand larceny of a typewriter, check protector and printed checks from said Dr. Pepper Bottling Company; (3) forgery of a check on said Dr. Pepper Bottling Company in the sum of $113.20; (4) uttering to C.O. Mammel Food Store, Ellinwood, Kansas, the forged instrument described in count No. 3; and (5) uttering to H & H I.G.A. Grocery Store, Ellinwood, Kansas, the forged instrument described in count No. 3. Originally the information contained a sixth count alleging forgery of a check on the Dr. Pepper Bottling Company in the sum of $94.15, but this count was dismissed by the prosecution prior to submission of the case to the jury.
Appeal has been duly perfected from a judgment sentencing the appellant under the habitual criminal act on each of said counts to the state penitentiary for a term of thirty years, said sentences to run concurrently.
The primary question presented is whether evidence introduced at the trial was obtained by an illegal search and seizure, and thus subject to the exclusionary rule. Other trial errors are also specified.
At the preliminary hearing on January 15, 1962, the appellant was represented by Loyd H. Phillips, a practicing attorney in Great Bend, Kansas, who later was appointed to represent him at the trial of this action in the district court.
The material portion of the state's evidence was, in substance, as follows:
Between the hours of approximately 5:00 p.m. on December 29, 1961, and 8:45 a.m. on December 30, 1961, the offices of the Dr. Pepper Bottling Company located at 1209 Kansas Avenue, Great Bend, Barton County, Kansas, were burglarized. Entry apparently was gained by breaking a large window in the south room of the two rooms of the office. Missing from the office were a Remington Rand typewriter, a check protector machine, and a book of numbered checks printed with the name "Dr. Pepper Bottling Company." The numbers of the missing checks were from 241 to 400, inclusive. None of these items was returned.
The state's exhibits numbered 1, 2, 3 and 4 are part of the checks missing as a result of the burglary. The typing which appears on these exhibits and the "check protectored" parts of these exhibits, added after the burglary, appeared to be the same as the type of the missing typewriter and the impression made by the missing check protector.
William Nay Wood (defendant-appellant) had been in the office of the Dr. Pepper Bottling Company on three or four occasions prior to December 29, 1961. On November 26, 1961, he rented the apartment above the bottling company in the same building. On the 5th day of December, 1961, he moved out of this apartment. The stairway to this apartment was located on the south side of the building but to the outside. The window broken out during the burglary was right next to this stairway.
On December 7, 1961, the appellant was in the office of the Dr. Pepper Bottling Company when Mr. John B. Weltmer, manager, wrote him a check on a bottling company printed check. The check was in payment for a mirror which he purchased for the apartment. The appellant was present when the checkbook was taken from the bookkeeper's desk for the purpose of writing the check. The checkbook when it was taken during the night of December 29, 1961, was in the same location. The typewriter and check protector were also located in this room.
On December 29, 1961, at about 8:00 p.m. Ellis Wright was confined in the Great Bend, Kansas, city jail for drunkenness. At that time he loaned his automobile, a 1954 Pontiac, to the appellant. The Pontiac was a four-door, light blue with dark blue top, bearing license no. PN 3811. The automobile was loaned to the appellant for the purpose of going to Ellis Wright's brother, John, to inform him that Ellis was in jail and to tell John to make arrangements to get him out.
At about 9:30 or 10:00 p.m. on December 29, 1961, the appellant contacted John Wright at Mr. Wright's home in Great Bend and was in the 1954 Pontiac owned by Ellis Wright.
Approximately 10:15 p.m. on December 30, 1961, Ellis Wright was released. He procured his automobile from the Barton County sheriff's office during the afternoon of December 31, 1961. At that time the left tail light was broken out.
At approximately 6:30 p.m. on December 30, 1961, Jesse Wyatt went to the H & H I.G.A. Grocery Store in Ellinwood, Barton County, Kansas, to purchase two cartons of Pall Mall cigarettes and to cash a check. He handed an employee, Dorothy Griffin, a check in the sum of $113 and some odd cents. When Wyatt presented the check to the employee she referred him to the store manager, Mr. Secrist. Wyatt then presented the check to Mr. Secrist to be cashed, without success. Secrist testified the check Mr. Wyatt gave him to cash was just like the state's exhibit No. 4.
At approximately 6:35 p.m. on December 30, 1961, Jesse Wyatt entered the C.O. Mammel Food Store in Ellinwood, Barton County, Kansas. He asked the assistant manager, Mr. Bieberle, for two cartons of Pall Mall cigarettes and Wyatt handed him a check. Mr. Bieberle stated he could not cash the check and Mr. Wyatt did not buy the cigarettes. Mr. Bieberle stated the check Wyatt handed him was just like the state's exhibit No. 4.
After Wyatt left the store Mr. Bieberle sent Elmer Burgardt, one of the employees, out to get the license number. Mr. Bieberle had heard about the checks being stolen from the Dr. Pepper Bottling Company, and he assumed this was one of them. He telephoned the Ellinwood, Kansas, police and gave them a description of the automobile just as Elmer Burgardt had given it to him; he also told the police the automobile was headed east on U.S. Highway No. 56.
Elmer Burgardt testified that on December 30, 1961, at 6:30 or 6:35 p.m. he saw Jesse Wyatt come into the Mammel Store and was told by Mr. Bieberle to secure the license number of Wyatt's automobile. Burgardt followed Wyatt out of the store to an automobile parked one-half block from the store. The automobile drove away east on U.S. Highway No. 56. Burgardt noted the automobile was a 1953 or 1954 Pontiac, two-tone blue and had the left tail light out. He was not able to see the license tag. He reported the description to Mr. Bieberle, and the direction the automobile was headed when it left.
At about 6:50 p.m. on December 30, 1961, Jesse Wyatt entered Keith's Food Market in Chase (Rice County), Kansas. He asked for two cartons of Pall Mall cigarettes and asked to cash a Dr. Pepper Bottling Company check in the amount of "ninety-some dollars." The manager, Keith Laessig, testified that the state's exhibit No. 3 was similar to the check Wyatt had, in that they both were Dr. Pepper checks and both made out to Jesse Wyatt, as he recalled. The check was not cashed and Wyatt did not buy the cigarettes.
At about 6:30 p.m. on December 30, 1961, Jesse Wyatt entered the I.G.A. Store...
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