479 P.2d 907 | Kan. | 1971
The opinion of the court was delivered by
Edward J. “Eddie” McClain was convicted by a jury of the offense of robbery in the first degree. Sentenced under the habitual criminal act, he now appeals.
Briefly, evidence for the prosecution revealed the following: About 9:20 a. m. on January 29, 1969, three men entered the office of McEntire Brothers, Inc., a mattress and bedding company at 400 Jefferson street in Topeka. One man remained in the front part of the building. The other two went to the counter in the rear, first inquiring about a mattress, then producing revolvers and announcing a holdup. Mrs. McEntire, bookkeeper and wife of one of the owners of the company, identified appellant as one of these two. The bandits forced the three employees present to lie on the floor face down. One of them struck Mrs. McEntire when she raised up. They then took currency from a desk and a change box and a large paper sack from an unlocked safe. The sack contained a savings bond, some envelopes and a coin collection. The men left, going east toward the Santa Fe depot.
About one hour later two police officers, who had received notice
Another witness testified that around 1:45 a. m. on January 29, 1969, appellant and another individual came to the home of the witness in a blue Ford automobile bearing'Missouri tags, and that appellant stayed all night at this home. When the witness arose about 10:00 a. m. appellant had already left. The witness, while an inmate of the Kansas penitentiary, had made the billfold in question as a present for appellant’s sister, Evelyn McClain.
Appellant served notice of alibi and in support thereof a girl friend testified that on January 29, 1969, appellant was with her at her home in Topeka from about 3:30 a. m. to about 11:45 a. m. Appellant testified to the same effect, denying he had been at the McEntire place of business; he had lost the billfold in question on January 21 and did not know how it and the items purloined from McEntires came to be in the unidentified blue Ford.
Appellant first argues the prosecution’s evidence was insufficient to convict him and that the jury’s verdict was contrary to the evidence. He makes much of the fact two of the McEntire employees were unable to identify him as a participant in the holdup. This
Appellant also would dismiss the incriminating evidence linking him to the billfold, but this evaluation was strictly jury work. His contention the verdict is contrary to the evidence is based on his assertion the testimony of his alibi witness was uncontradicted. This testimony was in fact completely contradicted by the prosecution witness who testified appellant had spent the night with him and by Mrs. McEntire’s eyewitness statement that appellant was one of the robbers. The evidence amply supported the conviction;
Appellant complains the trial court erred in admitting Mrs. McEntire’s identification of appellant because of unfair procedure employed at a lineup, relying on the Wade-Gilbert-Stovall rules. Appellant particularly emphasizes the witness’s lack of complete certainty at the time of viewing the photographs, arguing then' use must have been unnecessarily suggestive. The facts do not justify the complaint. Appellant did appear in a pretrial lineup at which he was identified by Mrs. McEntire as one of the robbers. This occurred about two and one-half weeks after she had identified his picture from a group of photographs. Appellant had counsel at the lineup. At trial, when objection was made to Mrs. McEntire’s testimony, the trial court held a separate hearing out of the presence of the jury on the issue. Mrs. McEntire testified she was making her trial identification upon appellant’s appearance at the time of the robbery as a participant therein and not from the photographs, and that the same was true as to her lineup identification. Thus it affirmatively appears her in-court identification came from a source independent either of her viewing of appellant or his photograph. The lineup and the photo viewing appear to have been fairly conducted. There was no showing either was unnecessarily suggestive or that Mrs. McEntire’s identification was in any way
Appellant complains generally of an illegal search and seizure in the removal of the items from the blue Ford automobile. Although he disclaims any connection with or knowledge of this vehicle and the state questions his standing to complain, a complete answer to the contention of illegal search is that probable cause existed for the officers to procure a search warrant, or even to have made an on-the-spot warrantless search (see State v. McMillin, 206 Kan. 3, 476 P. 2d 612). The regularity of the search warrant is not in anywise challenged. The complaint here seems bottomed more on the fact appellant testified he had no connection with the vehicle or its contents but credible evidence offered by the state indicated otherwise.
We have considered other matters raised by appellant, including the fact one juror momentarily took notes until stopped by the trial judge and that another was seen to nod, but find nothing approaching reversible error.
The judgment is affirmed.
APPROVED BY THE COURT.