State v. CremerState v. Cremer
- Reporters:
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- Before:
- Prager
Lead Opinion
The opinion of the court was delivered by
Prager, J.:This is a direct appeal by the defendant, Jack B. Cremer, following a jury conviction of felony theft (
The evidence presented at the preliminary hearing, when considered in a light most favorable to the prosecution, was essentially as follows: Defendant Cremer was manager of a filling station owned by the Quality Oil Company located at 21st and Moundview in Topeka. On September 17,1979, defendant’s supervisor, Verlon Cooper, was called by other employees of the filling station and advised that Cremer had not opened the station for business. Cooper went to the station and opened it. Cremer never, thereafter, returned to the station. He went to Florida and did not return to Topeka until arrested on the warrant in this case. Cremer, as manager, was responsible for making a daily report on gasoline sold and money taken in for each day. Cooper testified that he found daily report forms at the Moundview station covering sales of gasoline for September 14, 15, and 16, 1979. Each of the daily reports was signed by defendant Cremer. These reports showed that the business done at the station for those three days totaled approximately $9,000. No money was found at the station. Cooper testified that he had checked the Quality Oil Company account at Southwest State Bank and determined that Cremer had not deposited the receipts for the three-day period. Defendant objected to this testimony on the grounds of hearsay. The court overruled the objection.
Another prosecution witness at the preliminary hearing was Virginia Pence, Quality Oil’s comptroller and vice president. She was in charge of and responsible for all of the financial records of the company. She testified that station managers are authorized to do nothing with the money collected at the stations other than to deposit it in a checking account. She testified that approximately $9,000 from the receipts of the station at 21st and Moundview managed by the defendant was missing and that the bank deposits for the three days prior to defendant’s disappearance were never made. She further testified that she knew and recognized the defendant’s signature on the three daily reports in question. She related the procedure used by the company in
When Ms. Pence suspected the cash receipts for September 14, 15, and 16 had not been accounted for, she requested the bank statements to verify the deposits which confirmed that no deposits had been made on September 14,15, or 16. She testified that the bank statements are records received in the normal course of business. Defense counsel objected to the admission of the bank statements on the basis that they were hearsay. At the close of the preliminary hearing, defendant’s counsel moved to dismiss, pursuant to
Defendant subsequently filed a motion to dismiss with the trial court, pursuant to
The Court of Appeals held that the bank statements introduced at the preliminary hearing were inadmissible and not within the
The Court of Appeals then considered the question whether the hearsay evidence, although technically inadmissible at trial, could be admitted and considered in determining probable cause at a preliminary examination. The opinion noted that the rules of evidence have traditionally been relaxed at a preliminary hearing and hearsay has been held to be permissible. It relied on Syllabus ¶ 2 of McIntyre v. Sands, 128 Kan. 521, 278 Pac. 761 (1929), which states as follows:
“It is not necessary that there should be the same formality or strict compliance with procedure and the rules of evidence in a preliminary examination as upon the final trial of the accused.”
The Court of Appeals noted a possible conflict between this holding in McIntyre and
“60-402. Scope of rules. Except to the extent to which they may be relaxed by other procedural rule or statute applicable to the specific situation, the rules set forth in this article shall apply in every proceeding, both criminal and civil, conducted by or under the supervision of a court, in which evidence is produced.” (Emphasis supplied.)
The Court of Appeals rejected defendant’s contention that the language of
As noted above, the basic issue in the case is whether the trial court erred in denying defendant’s motion to dismiss prior to trial on the basis that the evidence presented by the prosecution at the preliminary hearing was not sufficient to show probable cause. There are two questions which we must consider in determining this issue: (1) To what extent may inadmissible hearsay be relied upon and form the basis for a finding of probable cause at a preliminary hearing held pursuant to
For many years prior to the adoption of the Kansas Code of Criminal Procedure in 1970, it was the recognized rule in this state that it is not necessary there should be the same formality or strict compliance with procedure and the rules of evidence in a preliminary examination as upon the final trial of the accused. The following cases support this proposition: Redmond v. State, 12 Kan. *172 (1873); State v. Bailey, 32 Kan. 83, 3 Pac. 769 (1884); McIntyre v. Sands, 128 Kan. 521; State v. Willhite, 161 Kan. 113, 166 P.2d 562 (1946); State v. Earley, 192 Kan. 167, 386 P.2d 189 (1963). The rule was required because, during the early years of our judicial history, criminal preliminary proceedings were generally heard by untrained justices of the peace, judges not learned in the law, who were without knowledge and understanding of the rules of evidence. In this judicial environment, a strict compliance with the rules of evidence followed by district judges in the trial of a felony case could not reasonably be expected. For that reason, the Supreme Court at an early date adopted the principle that it was not necessary that the same strict rules of evidence be applied in a preliminary examination as at the final trial of the accused.
In 1963, the legislature enacted the Kansas Code of Civil Procedure (
In a recent decision of this court, State v. Jones, 233 Kan. 170, 660 P.2d 965 (1983), Justice Lockett discussed in some depth the nature and purpose of a preliminary examination and stated on page 172 of the opinion that, “The quality of the evidence to obtain the complaint/information is no longer sufficient during the preliminary examination. Only evidence admissible in the trial of the defendant is to be considered by the magistrate.” Later in State v. Sherry, 233 Kan. 920, 667 P.2d 367 (1983), where the issue involved was the admissibility of the report of a forensic examiner under
After considering all of the authorities cited above and the clear and unequivocal language of
We also think it important that, since the old rule was adopted, there have been great changes in the concept of due process of law. Today preliminary examinations are conducted in a way to insure that both the rights of the State and the rights of the accused are protected. The application of the Kansas rules of evidence in a preliminary examination will help to accomplish that result. We hold that the rules of evidence under the Kansas Code of Civil Procedure set forth in
We turn now to the question whether the court erred at the preliminary hearing in admitting and considering on the issue of probable cause the State’s evidence relating to the bank records which showed that defendant Cremer had not deposited at the
“(m) Business entries and the like. Writings offered as memoranda or records of acts, conditions or events to prove the facts stated therein, if the judge finds that they were made in the regular course of a business at or about the time of the act, condition or event recorded, and that the sources of information from which made and the method and circumstances of their preparation were such as to indicate their trustworthiness;
“(n) Absence of entry in business records. Evidence of the absence of a memorandum or record from the memoranda or records of a business of an asserted act, event or condition, to prove the nonoccurrence of the act or event, or the nonexistence of the condition, if the judge finds that it was the regular course of that business to make such memoranda of all such acts, events or conditions at the time thereof or within a reasonable time thereafter and to preserve them.”
As noted above, the Court of Appeals held that the bank records showing an absence of deposit of money by the defendant were not admissible at the preliminary hearing, because the prosecution failed to lay a foundation concerning the record keeping process at the Southwest State Rank. We have concluded that the court at the preliminary examination ruled correctly in admitting the bank’s statements under
In this case, the evidence was undisputed that daily report forms were found at the filling station which showed receipts from the sale of gasoline for September 14, 15, and 16, 1979, in the amount of approximately $9,000. No money was found at the station. Each of these daily reports was signed by the defendant
We also have concluded that
We affirm the judgment of the district court. The judgment of the Court of Appeals is also affirmed, although not for the reasons stated by the Court of Appeals in its published opinion.
Concurrence Opinion
concurring: I concur in the result reached by the majority in this case, but I disagree with the conclusion of the majority that the Rules of Evidence,
A preliminary examination is not a trial. Its primary purpose is to determine whether an accused should be held for trial. The initial determination of whether to issue an arrest warrant may be made upon reliable hearsay, and I see no reason why that should not be the standard for preliminary examinations.
We have some eighty nonlawyer district magistrate judges in Kansas. These are fine, conscientious people, and an asset to the Kansas judicial system; but they have but minimal legal training. We do give them instruction, provide them with manuals and—
Lawyers, on the other hand, spend perhaps five hours a week on the subject of evidence during one or two semesters in law school, plus outside reading and study. This case illustrates that even lawyers cannot apply the Rules of Evidence “without great difficulty.” The trial judge — a lawyer — held the evidence admissible. The three-judge panel of the Court of Appeals — all lawyers- — held it inadmissible. Seven justices of this court — all lawyers — now disagree with the Court of Appeals, and hold the same evidence admissible under two of the twenty-nine or more exceptions to the hearsay rule enumerated in
This court should continue its century-old policy and relax the rules of evidence at preliminary examinations.
McFarland, J., joins the foregoing concurring opinion.