State v. Zumalt
Citation | 451 P.2d 253,202 Kan. 595 |
Decision Date | 08 March 1969 |
Docket Number | No. 45236,45236 |
Parties | STATE of Kansas, Appellee, v. Jack ZUMALT, Appellant. |
Court | United States State Supreme Court of Kansas |
Syllabus by the Court
1. Generally, any error in the exclusion of evidence is cured when the same, or substantially the same, evidence is, through the same or other witnesses, subsequently admitted.
2. The record of a prior felony conviction may be used to increase the sentence imposed for a subsequent felony conviction in accord with the habitual criminal act despite the fact the prisoner received a pardon as to the prior conviction.
3. A prior felony conviction may be sued more than once to enhance a sentence imposed under the habitual criminal act for a subsequent conviction.
William M. Mills, III, Hutchinson, argued the cause, and R. J. Gilliland, John F. Hayes, and Victor D. Goering, Hutchinson, with him on brief for appellant.
Raymond F. Berkley, County Atty., argued the cause, and Kent Frizzell, Atty. Gen., and Kerry J. Granger, Asst. County Atty., with him on brief for appellee.
HARMAN, Commissioner.
Appellant Jack Zumalt has appealed from the sentence imposed upon him as a result of his conviction by a jury of the offense of attempted murder in the first degree.
The issues presented here raise no dispute as to the material facts. A few of them will be briefly stated, however, to indicate the background for the prosecution. The alleged offense occurred at Hutchinson April 16, 1967. The state's evidence showed that appellant, who had just returned on a weekend pass from the Larned State Hospital where he had been undergoing treatment, while sitting with his wife in an automobile in front of their home, shot his wife with a pistol, wounding her in the right forearm and chest. Appellant then shot himself. Immediately preceding the shooting appellant and his wife had been discussing the possibility of divorce and arguing.
After being charged with the offense, appellant, pursuant to his own request, was examined by a court-appointed commission of three medical doctors. On October 12, 1967, he was found to be sane and able to comprehend his position and make his defense. Jury trial commenced October 16, 1967, and concluded October 18, 1967.
Appellant's first complaint is based upon the trial court's ruling sustaining an objection to one question put to a psychologist who testified on appellant's behalf. The testimony was as follows:
'A. Earl Rakestraw, psychologist.
Appellant contends the court erred in this limitation of the psychologist's testimony. Assuming, without deciding, that the trial court should have permitted the witness to answer the question propounded, we think, in view of other testimony on the same subject, by the same and other witnesses offered by appellant and received without objection, he suffered no prejudice in the exclusionary ruling.
Following the sustaining of the foregoing objection the witness Rakestraw continued his testimony:
Appellant called another witness, a clinical psychologist at Larned State Hospital, who testified he had treated appellant prior to April 16, 1967, and in his opinion appellant had great difficulty in controlling his impulses; this would be especially true when appellant was very angry. He further testified he did not feel he could categorize appellant as a normal person.
A psychiatrist who had treated appellant at the hospital testified upon appellant's behalf he believed appellant was prone to act on impulse but that it was possible for him to know the difference between right and wrong when so acting.
The rule is that, generally, any error in the exclusion of evidence is cured when the same, or substantially the same, evidence is, through the same or other witnesses, subsequently admitted (5A C.J.S. Appeal and...
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State v. Baucom, 2946.
...from being considered as a prior offense under a statute increasing the punishment for a subsequent offense."); State v. Zumalt, 202 Kan. 595, 451 P.2d 253, 256 (1969) ("Our rule is that the record of a prior felony conviction may be used to increase the sentence imposed for a subsequent fe......
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State v. Guffey
...is cured when the same, or substantially the same, evidence is, through the same or other witnesses, subsequently admitted. (State v. Zumalt, 202 Kan. 595, Syl. 1, 451 P.2d Defendant's next complaint concerns cross-examination of police officers who investigated the robberies. Officer Liles......
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State v. Duncan
...exclude the evidence such error would be cured by the testimony of other witnesses who testified on the same subject. See State v. Zumalt, 202 Kan. 595, 411 P.2d 253. The deputy coroner and another police officer who were at the scene gave testimony that the lack of blood in the area and th......