State v. Minor

407 P.2d 242, 195 Kan. 539, 1965 Kan. LEXIS 434

• Court: Supreme Court of Kansas
• Decided: November 6, 1965
• Docket: 44,290
• Status: Published

Opinions

The opinion of the court was delivered by

Price, J.:

This is a direct appeal from a conviction of the offense of forgery in the second degree.

At both his preliminary examination and trial, and also in this appeal—defendant was represented by Mr. Peirce, his court appointed counsel.

Only two contentions are made.

The first is that the trial court erred in allowing evidence of defendant’s character to be introduced over his objection when the issue of “character” had not been raised by him, in violation of that portion of K. S. A. 60-421, which reads:

“If the witness be the accused in a criminal proceeding, no evidence of his conviction of a crime shall be admissible for the sole purpose of impairing his credibility unless he has first introduced evidence admissible solely for the purpose of supporting his credibility.”

With respect to this matter the record shows that in the state’s case in chief a deputy sheriff was questioned as to events leading up to the filing of the charges. Counsel for defendant cross-examined the witness as to his investigation of the case. On redirect examination it was brought out that the officer had checked F. B. I. “rap sheets” and records in the sheriff7s office, including a “mug shot” of defendant, and that from such photograph the complaining witness had identified defendant. An object to this line of testimony on the ground it was an attempt to show “character” was overruled. Under the circumstances related—the ruling was proper.

Defendant took the witness stand. While being cross-examined by the county attorney he was asked if he was then on parole for forgery. The question was objected to on the ground it was an attempt to show “character” and that defendant had not “opened up” such issue. The jury was then excused for the noon recess and, following argument on the objection, the court advised counsel that the objection would be sustained. The county attorney then stated that he had one more question he desired to ask defendant. The court stated that if the further question was of like nature he also would sustain an objection to it.

After the jury returned from recess the court ruled that defendant’s objection to the question was sustained. The county attorney then asked defendant if he had ever been convicted of forgery, burglary, or grand larceny. An objection was likewise sustained— the result being that evidence of alleged prior convictions of forgery, burglary or grand larceny was not introduced before the jury.

Under the circumstances related we believe it was improper for the county attorney to ask the further question and that he should have refrained from doing so. ..

The contention, however, that the court erred in allowing evidence of defendant’s character to be introduced over objection when the matter had not been placed in issue by him, cannot be sustained. Assuming, but not deciding, that evidence of prior convictions would fall within the scope of such contention, the fact remains that objections to questions relating to alleged prior convictions were sustained and such evidence was not introduced.

The remaining contention is that the trial court erred in not striking the objectionable material from the record and in not admonishing the jury to disregard it.

This contention—for all practical purposes—is answered by what has heretofore been said, namely, since evidence of alleged prior convictions was not admitted—there was nothing to strike, and, not being a matter of evidence, there of course was no occasion to admonish the jury with respect thereto.

No error being shown, the judgment is affirmed.