State v. Hoerr

129 P. 153, 88 Kan. 573, 1913 Kan. LEXIS 383

• Court: Supreme Court of Kansas
• Decided: January 11, 1913
• Docket: No. 18,003
• Status: Published

Opinion

The opinion of the court was delivered by

Benson, J.:

The appellant .presents fifty-six assignments of error. Eight of these assignments are upon rulings made on challenges to jurors. Several jurors stated their belief that the bank had been robbed. This was a notorious fact that citizens of the county must necessarily have believed, accompanied as it was by a fusilade and explosions. It was not disputed in the evidence and was proved beyond possible doubt. An opinion that the burglary had been committed did not, therefore, disqualify. (The State v. Spaulding, 24 Kan. 1; The State v. Stewart, 85 Kan. 404, 409, 116 Pac. 489; The State v. Olsen, ante, p. 136, 141, 127 Pac. 625.)

The examination of the jurors concerning their «opinions upon other incidental matters showéd that, while they had read newspaper reports and heard considerable talk, they were not disqualified within the principles stated in The State v. Morrison, 67 Kan. 144, 72 Pac. 554; The State v. Truskett, 85 Kan. 804, 118 Pac. 1047; and more fully in The State v. Stewart, supra. It does not appear that there was any settled conviction of mind or opinions of a fixed and positive character upon a material disputed fact or issue to be determined, or that there was any bias or prejudice against the defendant, or that the court did not exercise'a just discretion.

Objections were made to the endorsement of names of witnesses upon the information after the case was called for trial. It is unnecessary to refer to the rulings in detail. They were all within the discretion of the district court, which was fairly exercised. The views of this court relating to this subject, recently stated in The State v. Tassell, 87 Kan. 861, 126 Pac. 1090, are applicable to this case, and are followed.

Error is assigned upon remarks of the prosecuting attorney in his opening statement, and others are predicated upon the admission of testimony relating to evidence showing the association of the defendant with Carney, Mulcahy and others mentioned in the preceding statement of facts. Ño error is perceived in these rulings. The burglary was committed by several. Two of these associates were identified by witnesses as being at Beattie three or four days before the crime was committed. A witness testified that the defendant himself was in Beattie at the same time that the others were seen there. The criminals escaped in an automobile, traced to the defendant’s possession afterwards. Several of these associates were seen with him, using and fixing this car, a short time before the burglary. He rented the chicken ranch and it was occupied just before the burglary by some of these men. The automobile top was found there. One of these men and the defendant entered into the transaction wherein the bill of sale was given with unusual formalities and accompanying suggestions as to the kind of money and the persons present, indicative of a purpose to prepare available proof for use when needed. In view of these and other circumstances, testimony showing the defendant’s close association with these men for a reasonable time preceding and continuing down to the date of the crime was admissible. It was proper to show the defendant’s employment, conduct, whereabouts and associations. It appears that some of these men were brought to Kansas and were in j ail at Marysville when they were identified by witnesses. This testimony is objected to as tending to prejudice .the defendant by showing their incarceration in jail and prosecution for crime. The objection can not be sustained. The evidence was admissible for purposes of identification. Their whereabouts is not of particular importance, but it is impossible to produce such evidence wholly apart from time and place. A witness was allowed, over defendant’s objection, to testify that defendant had' said that he was boarding the kind of men that had money. This occurred in this wise: After a trial of Mulcahy on some charge the defendant objected to having his name mentioned, as he said, “with a bunch of crooks.” The police judge remarked that he did not see him do any work, and thereupon the defendant said that he kept a boarding house 'and was boarding the kind that had money. The men or some of them already mentioned were among his boarders. In the light of the circumstances, and as part of the conversation, the remark objected to was admissible. It was the defendant’s own explanation of his associations.

Testimony is also objected to showing that along in August the defendant threw a flash light upon persons sitting at night in the rear of his premises, at the same time having a revolver in his hand. This is not very important evidence, but it shows the defendant’s possession of the instrumentalities referred to, and was admissible in connection with all the circumstances proven.

The conversation of the defendant concerning the manner in which nitroglycerine could be extracted from dynamite, although objected to, was admissible, as also was the evidence relating to the buried dynamite sticks, the dynamite found under the box car and in the stone quarry, the cap and fuse found at the chicken ranch, the receipt for groceries and price list of Oakland cars and other articles found at the same place, with the evidence of the other facts and events preceding the crime contained in the preceding statement. Some of these matters bear very remotely on the case, but are admissible when considered together to show a guilty combination tending to prove the defendant’s complicity in the crime charged.

Special reference ought perhaps to be made to the admission of evidence concerning the arrest of Black, Jackson and Watson, to which an objection was made. These men were arrested at Hoerr’s home in July, 1910, for stealing silks. Complicity of the defendant in the alleged theft was not shown, nor does any connection appear between the larceny then charged and the crime now under investigation. The evidence relating to that matter, however, did not close with the arrest. Hoerr went to the jail where the men were taken, offering to procure counsel for them, and after-wards, when they were taken to Concordia in this state, it appears that he went there on the same errand. While at Concordia, the next day after the arrest, he told the sheriff that he had written to Dan Carney in answer to a letter received by these men while in jail. This evidence was not offered to prove another crime or the defendant’s possible participation in it; for such purpose it was not admissible, but it was permissible in the discretion of the trial court to further show the defendant’s associations.

Matters of evidence of doubtful admissibility will now be referred to. Testimony was admitted of the sale of a coat and pair of trousers by the defendant in July, 1910.' It is not indicated how this circumstance is connected with anything material to the case.

On the cross-examination of the defendant, who was a witness in his own behalf, he was shown a promissory note made by him in Louisiana in the year 1903, and his letter to the payee promising payment, and was asked if he had received a letter from a bank in Wymore asking him to call and pay the note. The note and letter were received in evidence. Nothing in his testimony in chief referred to this note, or warranted ,the cross-examination. No reason is given for it .except the suggestion that it tended to rebut his statement that he had money to pay for the automobile which he claimed to have purchased.

Dan Carney was arrested in Oregon “recently,” the sheriff said in giving his testimony, but the time is not shown. The court admitted his statements to the officer that he went under various aliases and that skeleton keys in his possession were watch charms. These statements, made months after the burglary, were erroneously received. The keys were also erroneously admitted in evidence. These items of evidence which we have characterized as doubtful were improperly admitted, but we do not find that any of it was prejudicial. The transaction concerning the sale of clothing appeared to be entirely innocent, and we must presume was so considered. The cross-examination about the note revealed nothing except that the defendant was in debt, which was of no consequence, and it can not be presumed that a jury would draw any unfair conclusion from it. The statement of Dan Carney that he went under other names was not prejudicial for that fact had been proven already. The statement that the skeleton keys were used for watch charms was his little j oke, which could have no weight. The production of the keys was of no more consequence than his statement about them. Probably in producing the mass of evidence presented in this case these particular items of testimony were admitted upon the belief that some connection would be shown to make them entirely competent. The failure to do so can not be grounds for reversal under the code of criminal procedure, which requires this court to disregard errors which do- not affect substantial rights. (Crim Code, § 293; The State v. Morton, 59 Kan. 338, 52 Pac. 890; The State v. Connor, 74 Kan. 898, 87 Pac. 703; The State v. Hammon, 84 Kan. 137, 146, 113 Pac. 418.)

An objection that the cashier who testified to the. correctness of ledger entries showing the amount of' money in the bank when burglarized, based upon the fact that he did not personally make the entries, can. not be sustained. The evidence was admissible; besides, the amount is not material. Breaking with intent to steal is sufficient to sustain a charge of burglary.

The defendant took the deposition of one Owen biat did not read it as Owen was present and testified. His testimony was to the effect that a witness who had related the occurrences at the defendant’s house when the bill of sale was made out was not present there. His attention was called to his deposition in which he had stated that the witness was present, and on rebuttal that part of his deposition was read. Of this the defendant complains, but without cause. He could be thus contradicted by his written statements as well as by oral ones.

Some testimony offered in rebuttal purporting to-repeat statements made by Muenard concerning his possession of the automobile is objected to. It appears, however, that this testimony was received in rebuttal of Mr. Muenard’s statements as a witness for the defendant, and for this purpose it was admissible.

The defendant predicates error upon instructions given and refused. The subjects covered by the requests were fairly treated in the instructions given, and covered every correct proposition fairly. Instructions requested relating to the defense of alibi were properly modified in accordance with the statute, which provides that:

“Any person who counsels, aids or abets in the commission of any offense may be charged, tried and convicted in the same manner as if he were a principal." (Crim. Code, § 115.)

The following instructions were given, which it is insisted were erroneous:

“2. You are instructed under the law of Kansas anyone who aids, abets, or assists another or others in the commission of any crime either by conspiring or confederating together, counselling and advising in the commission of such crimes and preparation thereof, or by counselling, aiding or assisting in the commitment thereof, or by knowingly cqncealing the crime and its results, is equally guilty with the one actually committing the crime, and you are therefore instructed in this case that should you find beyond a reasonable doubt that the defendant conspired and confederated with other persons for the commission of the crime alleged in the information, and that he did in any way aid, assist or abet in its commission, either by counsel or-concealment, then he is guilty as though he had himself, without assistance, committed the crime.

“3. Your attention to the last instruction stated leads to the understanding that the field of inquiry in this case divides itself in two sections, each of which should receive the careful and conscientious consideration of the jury:

“First: Did the defendant in person at the time and place charged beyond a' reasonable doubt, actually and physically break into and rob the Beattie State Bank in manner set forth in the information; and,

“Second: If you should fail to be satisfied from the evidence beyond a reasonable doubt that the defendant actually and in person was at Beattie at the time and place stated, and in person physically by himself or with the assistance of others, broke into and robbed said bank as charged, then the inquiry under the law would be whether or not the defendant, beyond a reasonable doubt, was guilty as charged by reason of the fact that he, though not actually present at the time and place of the commission of the crime, had guilty knowledge of the intent and plan and preparation to commit such crime, and did, though not present, actually help, plan, counsel, aid and abet others, conspiring and confederating of others in the plan and purpose, and in the preparation and carrying out of such common plan and purpose and knowingly concealing the crime, and aiding, assisting and facilitating the escape of the actual participants in the burglary.” . . .

It is argued that the parts of these instructions relating to concealment are erroneous. It should be observed, however, that in instruction No. 2 the jury were informed that one who aids, abets or assists in the commission of a crime by counselling and advising in the commission, or by knowingly concealing the crime, is equally guilty. Not that he is guilty of the offense .if he conceals it, but if he aids in its commission (among other things) by concealing it, he is guilty. No. 3 was given as an explanation of No. 1, informing the jury that one may be guilty if present in person, doing the deed alone or with others, or he may be guilty if he, having guilty knowledge of the plan, did actually help, plan, counsel, aid and abet others by aiding, assisting and confederating with them in carrying out such plan and purpose and knowingly concealing the crime and aiding and assisting the escape of the perpetrators. The instruction, it will be seen, not only required the state to prove that the defendant aided, counselled or abetted in the crime, but that he also concealed it, and facilitated the escape of the others. The instructions on this subject were unnecessarily full, and the references to concealment might have been omitted, but their inclusion placed upon the state a greater burden than was necessary, and if properly understood, as we must presume thej'- were, the defendant has no just ground for complaint.

The court was asked to give a general instruction that it is the policy of the law that it is better that a' guilty person should escape rather than that an innocent man should be convicted. It is doubtful whether juries are assisted by such general observations, after being fully instructed, as they were in this instance, upon the presumption of innocence and the necessity of proof of guilt beyond a reasonable doubt before a verdict of guilty can be found. The rights of the defendant were- fairly safeguarded in the instruction given.

Objection is made to the form of the verdict finding the defendant guilty of burglary and larceny in the second degree. If the defendant was guilty of burglary at all it was burglary in the second degree. The instructions in effect so stated. If also guilty of stealing any amount, the offense of burglary in the second degree and larceny was established. This must have been the finding of the jury, and their verdict was rightly so interpreted, and sentence pronounced accordingly (under the indeterminate sentence law) at imprisonment from five to ten years, as prescribed for burglary-in the second degree. (Gen. Stat. 1909, § 2559.)

It was not necessary to prove the personal presence of the defendant at the time and place of the crime. It. is sufficient if he counselled, aided or abetted in its commission. But the fact, if it be a fact, as testified to by several witnesses, that he was át Wymore at ten o’clock on the-evening of the 7th of November, and also at six or 6:30 in the morning of the 8th, does not prove that, he was not at Beattie between two and three o’clock in the morning when the bank was broken into. The distance is not shown, but it is approximately forty miles. It was in evidence that an automobile could make the run between Wymore and Beattie in an hour- and a half or two hours.

While the evidence is wholly circumstantial, its weight was for the jury. We find it sufficient to sustain the verdict. No prejudicial error being shown,, the j udgment is affirmed..