State v. Ireton , 193 Kan. 206 ( 1964 )

Schroeder, J.,

dissenting: In my opinion the appellant was materially prejudiced by certain rulings of the trial court in the trial of this criminal action.

Instruction No. 10 given by the trial court was clearly erroneous under the circumstances in this case. This instruction pertained to the recent possession of stolen property. The primary issue in the case was whether the gum in question were stolen. The state was required to prove the guns stolen before it became material to prove that the appellant was the person who stole them.

Here there was no question in the evidence but that the appellant took the guns from the Howard home. This was admitted by the appellant in a statement he made to the officers, which was subsequently received in evidence by the court. The issue was whether he took the guns with the implied permission of the owners or whether he stole them. When the Howards learned that the appellant had gone to Russell to break a person out of jail, they reported the guns missing, not stolen, to keep from getting involved themselves. Neither Mr. Howard nor his wife desired to prosecute the appellant on the charges filed against him.

Therefore, in my opinion, instruction No. 10 was immaterial to the issues in this case and highly prejudicial to the appellant. It gave the jury an opportunity to find the appellant guilty by assuming the very fact they were called upon to decide.

Where an instruction given by the trial court is clearly erroneous, it is unnecessary for the appellant to abstract all of the instructions to invoke appellate review.

The trial court further erred in permitting testimony of previous crimes to come before the jury.

Mrs. Howard was called as a defense witness, and when pressed by the state on cross examination, she testified she knew why the appellant took.the guns. When she was asked why, counsel for the appellant objected, but the trial court overruled the objection. When she finally answered, she said the appellant took the guns to try to get a boy out of jail at Russell, Kansas. While there was no objection to the last answer, counsel for the appellant had a right to assume the trial court had already ruled against him on this point. Thus, it may be said this evidence came in over objection, and it highly inflamed the jury in a case where the question of guilt, based on the evidence presented, was quite speculative. The cross examination of Mrs. Howard on this point was completely beyond the scope of direct examination.

The county attorney made the most of these erroneous rulings in his final argument of the case to the jury.

It is respectfully submitted the appellant is entitled to a new trial.