457 P.2d 89 (Kan. 1969), 45587, State v. Aten

Docket Nº:45587.
Citation:457 P.2d 89, 203 Kan. 920
Party Name:STATE of Kansas, Appellee, v. Herbert Walter ATEN, Appellant.
Attorney:[6] Robert V. Talkington, of Iola, argued the cause, and J.D. Conderman, of Iola, was with him on the brief for the appellant. Page 921 Mitchell H. Bushey, County Attorney, argued the cause, and Kent Frizzell, Attorney General, was with him on the brief for the appellee.
Case Date:July 17, 1969
Court:Supreme Court of Kansas
 
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Page 89

457 P.2d 89 (Kan. 1969)

203 Kan. 920

STATE of Kansas, Appellee,

v.

Herbert Walter ATEN, Appellant.

No. 45587.

Supreme Court of Kansas

July 17, 1969

Page 90

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

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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.

[203 Kan. 921] 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, [203 Kan. 922] 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

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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...

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