State v. Aten

• Decision Date: 17 July 1969
• Docket Number: No. 45587,45587
• Citation: 457 P.2d 89,203 Kan. 920
• Parties: STATE of Kansas, Appellee, v. Herbert Walter ATEN, Appellant.
• Court: Kansas Supreme Court

Page 89

457 P.2d 89

203 Kan. 920

STATE of Kansas, Appellee, v. Herbert Walter ATEN, Appellant.

No. 45587.

Supreme Court of Kansas.

July 17, 1969.

Syllabus by the Court

1. It is essential to the validity of a search warrant that the issuing magistrate be provided with sufficient facts to enable him to make an intelligent and independent judgment that probable cause for its issuance exists; bald conclusions or mere affirmations of belief or suspicion are not enough. There must be adequate affirmative allegations of personal knowledge of facts or of the reliability of information received by affiant to provide a rational basis upon which the issuing magistrate can maek a judicious finding of probable cause. (Following State v. Hart, 200 Kan. 153, 434 P.2d 999.)

2. Under the provisions of K.S.A. 62-1830 facts upon which an issuing magistrate makes a judgment, whether probable cause for the issuance of a search warrant exists, may be presented in the form of an affidavit or by parol testimony given under oath and recorded in the form of a supplemental affidavit.

3. The corpus delicti in larceny consists of two elements: (1) that the property was lost by the owner; and (2) that it was lost by a felonious taking, each of which may be established by circumstantial evidence.

4. In a prosecution for larceny, felonious intent may be shown by evidence that the accused concealed the property or denied having possession of it.

5. In a prosecution for larceny, the want of consent of the owner to the taking of his property may be proved by circumstantial evidence when, without fault on the part of the state, direct testimony cannot be produced.

6. When considering the sufficiency of circumstantial evidence to sustain a conviction of crime, the question before this court on appeal is not whether the evidence is incompatible with any reasonable hypothesis except guilt, which is a jury question, but the function of this court is limited to ascertaining whether there was a basis in the evidence for a reasonable inference of guilt. (Following State v. Nicolay, 202 Kan. 209, 447 P.2d 403.)

7. In a prosecution for larceny, the evidence is examined and held sufficient to sustain a verdict of guilty.

Robert V. Talkington, Iola, argued the cause, and J. D. Conderman, Iola, was with him on the brief, for appellant.

Mitchell H. Bushey, County Atty., argued the cause, and Kent Frizzell, Atty. Gen., was with him on the brief, for appellee.

KAUL, Justice.

The defendant, Herbert Walter Aten, appeals from a judgment and sentence on a conviction by a jury of grand larceny (K.S.A. 21-533).

On appeal defendant contends articles found in his automobile were erroneously admitted into evidence because the warrant authorizing the search was issued on an insufficient factual basis. Defendant further contends the state's evidence was insufficient to establish the commission of the alleged crime. No complaint is made concerning the trial court's instructions and they are not incorporated in the record on appeal.

On December 21, 1966, Kenneth Wight, a resident of Iola, disappeared and has not been seen since such date. According to the testimony of his wife, Wight left home on the morning of December 21, 1966, taking money for a bank deposit with him. He said he was going Christmas shopping and asked her what she wanted for Christmas. Mrs. Wight further testified that Mr. Wight had told her children that he intended to buy a color television set for the home for Christmas.

Peace officers had been on the lookout for defendant since Wight's disappearance. On January 9, 1967, defendant was found at the Vernie Diehl residence near Iola by the undersheriff of Allen Count. Two police officers of Iola and Ray Emmons, a special agent for the Kansas Bureau of Investigation, were called to the Diehl residence by the undersheriff. Defendant was asked by the officers to accompany them to the courthouse in Iola and discuss whether or not he knew anything about the disappearance of Mr. Wight. Defendant, accompanied by a policeman, drove his automobile to the sheriff's garage at the courthouse. Defendant was next taken to the county attorney's office where he was fully advised as to his constitutional rights, following which defendant said he would answer some questions and some he would not. Defendant was asked where he had been since December 22, and he stated he had been to Independence, Parsons and Cherryvale, working in salvage yards and junking; he knew nothing about Kenneth Wight or his disappearance. When asked if he had any money on him, defendant pulled out his billfold and showed the officers a $100 bill, a fifty, some twenties and tens. Defendant stated he earned the money working at the salvage yards, 'junking,' and that he won the $100 bill in a 'crap game.' He was unable to give details concerning his acquisition of the money. At this point, agent Emmons asked defendant for permission to search his automobile, defendant refused, and the county attorney and Emmons proceeded to the office of the Allen County Court where the search warrant in question was secured.

With the search warrant in hand, the sheriff and agent Emmons proceeded to search defendant's automobile. They found a billfold, containing one $100 bill and three $20 bills underneath the dash where the radio was mounted. The sheriff also found a ring of keys with six keys on it. The billfold and key ring were identified by Mrs. Wight as her husband's and she testified they were on his person when she last saw him.

Defendant was charged with first degree robbery and grand larceny. After a preliminary hearing before the county court of Allen County, defendant was bound over for trial to the district court on the grand larceny charge. The county court found the evidence insufficient to bind defendant over on first degree robbery.

At the preliminary hearing, and later at the trial, defendant's counsel objected to the admission of the billfold and key ring into evidence. Defendant also filed a motion to suppress evidence prior to trial. The objections and motions of defendant were overruled. In each instance defendant contended the evidence was inadmissible because it was seized in a search authorized by an illegally issued search warrant.

After defendant refused permission to search his automobile, on the afternoon of January 9, 1967, the county attorney prepared an affidavit in which he stated:

'That he has just and reasonable grounds to believe, and does believe that a firearm which was the instrumentality of the crime of assault with a deadly weapon, and moeny and other property which was the fruits of the crime of larceny and/or armed robbery, committed within Allen County, Kansas, are being unlawfully possessed and concealed with a certain motor vehicle, to-wit:

'One 1949 model Oldsmobile sedan, bearing 1966 Kansas license number AL-3919, belonging to one Herbert Aten.'

The record discloses the affidavit was presented to the county court of Allen County, and at the same time the county attorney orally testified in considerable detail as to other facts within his knowledge. After hearing the testimony of the county attorney, the court ordered him to make and file a supplemental affidavit setting out his oral testimony.

Omitting formalities, the supplemental affidavit recites the following:

'I, Mitchell H. Bushey, being duly sworn upon oath, says:

'1. That he is the person who made the complaint and affidavit filed herein.

'2. That at the time of the hearing upon said complaint for search warrant and affidavit, he testified orally before the above entitled court as to his reasons for having reasonable grounds to believe that a firearm which was the instrumentality of the crime of assault with a deadly weapon, and that money and other property which was the fruits of the crime of larceny and/or armed robbery, were being unlawfully possessed and concealed by the defendant, Herbert Walter Aten, in the 1949 model vehicle described in said complaint for search warrant.

'3. That he testified to the following facts:

'(a.) That Herbert Walter Aten was observed by several witnesses who stated to this affiant that they had observed the defendant watching the pool hall which was owned and the place of business of Kenneth H. Wight, who had disappeared on the 21st day of December, 1966, and has never been heard from or observed by anyone since that date.

'(b.) That Herbert Walter Aten is known to have had, and admitted to this affiant that he had possessed a rifle of the same caliber to that of certain shells found near the car of Kenneth Wight, and that said shells are believed to have been fired shortly before Mr. Wight's disappearance. That there are bullet marks on Mr. Wight's car which were believed to be made by the bullets fired from said gun.

'(c.) Statement of one Vernie Diehl that Herbert Walter Aten is known to have had no money on December 22, 1966, and that he at that time borrowed $1.00 from Mr. Diehl.

'(d.) That at the time of Kenneth Wight's disappearance, he was known by his wife to have had between Six Hundred ($600.00) and Eight Hundred ($800.00) Dollars in his possession, carrying several One Hundred ($100.00) Dollar bills and several Fifty ($50.00) Dollar bills.

'(e.) Herbert Walter Aten is known to have left Iola for an undisclosed destination on December 22, 1966, between the hours of 1:00 and 2:00 o'clock in the afternoon of that date. This information was disclosed by the statement of Aten to this affiant and by the statement of Aten's mother to the Chief of Police, Everett Shepherd.

'(f.) On questioning the defendant by this affiant on January 9, 1967, at approximately 5:30 P.M. before the issuance of the search warrant in this matter, Aten showed this affiant a One Hundred ($100.00) Dollar bill and a Fifty ($50.00) Dollar bill which was in his possession in his billfold. Aten was unable to give a satisfactory explantion as to how he came into the...