State v. Atkinson
| Decision Date | 15 June 1974 |
| Docket Number | No. 47342,47342 |
| Citation | 523 P.2d 737,215 Kan. 139 |
| Parties | STATE of Kansas, Appellee, v. Carl S. ATKINSON, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. A check protector is a device adaptable for use in forging a check but to constitute the offense of possession of a forgery device under K.S.A.1973 Supp. 21-3714 the possession thereof must be with knowledge of the character thereof and its adaptability for such use coupled with evidence of intent on the part of the possessor to use such device for purposes of forgery.
2. In a criminal prosecution wherein a proper instruction on reasonable doubt is submitted to the jury, the further submission of an instruction on circumstantial evidence is unnecessary. (Following State v. Wilkins, 215 Kan. 145, 523 P.2d 728.)
3. The possession of stolen property raises a presumption that the possessor committed a burglary or a larceny if the possession is recent thereto and is unexplained or the explanation thereof is unsatisfactory.
4. Possession by an accused of recently stolen property is sufficient to sustain convictions of burglary and theft where a satisfactory explanation is not given.
5. Where a lawful arrest has been made probable cause to search the automobile of an accused exists if the facts and circumstances known to the officer warrant a prudent man in believing that a felony has been or is being committed.
6. The ability of an automobile to be moved to an unknown location or beyond the jurisdictional reach of the officer makes resort to a search warrant impractical in some cases. In such cases, if an officer has reasonable cause to believe the conveyance contains contraband or items which offend against the law, the officer may conduct a reasonable warrantless search of the vehicle.
7. The possession and control of a firearm contemplated by K.S.A.1973 Supp. 21-4204 is the exercise of dominion thereover, or the right and authority to possess, control and manage its use and disposition.
8. The record is examined in an appeal from convictions for burglary, theft, the unlawful possession of a firearm and possession of a forgery device and, for reasons appearing in the opinion, it is held that prejudicial error is not shown.
John E. Pyles, Wichita, argued the cause and was on the brief for the appellant.
Clifford L. Bertholf, Asst. Dist. Atty., argued the cause, and Vern Miller, Atty. Gen., Keith Sanborn, Dist. Atty., and Jim Rumsey, Asst. Dist. Atty., were with him on the brief for the appellee.
The defendant, Carl S. Atkinson, appeals from convictions of four counts of burglary (K.S.A.1973 Supp. 21-3715), one count of aggravated burglary (K.S.A.1973 Supp. 21-3716); one count of theft (K.S.A.1973 Supp. 21-3701(a)); one count of possession of a firearm in violation of K.S.A.1973 Supp. 21-4202; and one count of possessing an article (a check protector) capable of being used in counterfeiting in violation of K.S.A.1973 Supp. 21-3714. The charges lodged against defendant were based upon a series of illegal entries into several commercial and residential buildings in Wichita and the removal of property therefrom. The illegal entries or burglaries occurred during a period of time extending from October 9, 1972, through November 20, 1972. Included in the items taken were quantities of printed blank checks of the establishments burglarized, a billfold with identification cards, a quantity of bottled liquor, an electric typewriter, and a check protector.
The last of the series of burglaries occurred during the evening of November 20, 1972, when the Seneca Square Pancake House was illegally entered. Among the items taken were a box of blank checks and a check protector. Later the same evening defendant was arrested for driving his automobile through a red light. There were two passengers in the rear seat at the time. After being stopped defendant got out of his automobile and approached the police car. Upon inquiry the arresting officer learned defendant's driver's license was suspended and thereupon defendant was arrested. A pat down search of defendant revealed drug paraphernalia. While questioning defendant, the arresting officer saw a syringe on the floorboard of defendant's automobile beneath the steering wheel. At this point, the arresting officer radioed for vice detectives who soon appeared on the scene. One of the passengers in defendant's automobile got into the driver's seat and was observed pushing something in under the seat. Defendant's automobile was then searched and many items which had been described as taken in the series of burglaries were found in the trunk, including a .38 calibre firearm. Three .38 calibre bullets were found in the glove compartment.
Defendant was charged as previously outlined, tried to a jury, and convicted on all counts.
Defendant specifies numerous points of error on appeal; the first group of which are directed at the instructions given. In this regard defendant first claims error in the instructions given concerning possession of a forgery device. Defendant argues the state did not prove he intended to use the check protector to perpetrate a forgery and under the instructions given he says: 'The Jury was able to build an inference on an inference.' We find no merit in defendant's arguments. The trial court submitted two instructions pertaining to the charge of possession of a forgery device. The first was instruction No. 9 which was submitted essentially in the form and substance of PIK (Criminal) 52.16. The instruction correctly sets out the elements of the offense enumerated in the statute K.S.A.1973 Supp. 21-3714. The other instruction given on the point was instruction No. 14A which reads:
'The defendant in this case is charged with the crime of possession of forgery devices.
'Possession of forgery devices is the possessioning (sic) with knowledge of its character and with intent to use or aid or permit another to use for the purposes of forgery, any device, apparatus, equipment or article capable of or adaptable for use in counterfeiting, simulating or otherwise forging written instruments.'
This instruction focuses the jury's attention on the necessity of knowledge of the character of the instrument and its adaptability for use in counterfeiting on the part of defendant and that his possession must be coupled with an intent to use the instrument for purposes of forgery. A check protector can be used in the forgery of a check. There was evidence here that blank checks had been taken in three of the burglaries, indicating a scheme to forge and pass checks. There was evidence the check protector had already been used to imprint one of the stolen blank checks. There is ample evidence to support the giving of the two instructions in question and they fully conform with 21-3714.
Defendant next complains concerning instruction No. 12 pertaining to evidence of the commission of similar prior offenses. Defendant makes no specific objection to the form or language of this instruction, but merely complains that evidence of prior offenses constitutes browbeating of the defendant by the prosecution. Defendant's brief argument on this point seems to be directed at the admission of the evidence of prior offenses rather than to the substance of the instruction given. However, the evidence of prior offenses is not included in the record nor are we informed as to the nature thereof. Thus we are unable to consider the propriety of its admission. The instruction given included language properly limiting the jury's consideration to proof of elements enumerated in K.S.A. 60-455, but we note the instruction included all of the elements. As previously pointed out, on the record before us, we are unable to ascertain whether the evidence of the previous convictions is relevant as tending to prove all of the elements mentioned in the statute with respect to any of the offenses charged and in this connection we again direct attention to the caveat announced in State v. Jenkins, 203 Kan. 354, 454 P.2d 494, as follows:
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State v. Press, 55621
...searches. In State v. Barry, 216 Kan. at 616, 533 P.2d 1308, three cases, State v. Tygart, 215 Kan. 409, 524 P.2d 753; State v. Atkinson, 215 Kan. 139, 523 P.2d 737 (1974); and State v. Moretz, 214 Kan. 370, 520 P.2d 1260 (1974), appear to be cited as automobile incident to arrest search au......
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State v. Taylor
...have emphasized whether a defendant's explanation is satisfactory under the circumstances of the defendant's case. See, e.g. , State v. Atkinson , 215 Kan. 139, Syl. ¶ 3, 523 P.2d 737 (1974). Under the circumstances of Taylor's case, Taylor's denial was not inconsistent with the other evide......
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State v. Barry
...defendant's waist gave the officers ample probable cause to make the arrest (State v. Tygart, 215 Kan. 409, 524 P.2d 753; State v. Atkinson, 215 Kan. 139, 523 P.2d 737; State v. McCollum, 211 Kan. 631, 507 P.2d 196), to search him (State v. Hazelwood, 209 Kan. 649, 498 P.2d 607; United Stat......
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State v. Jackson
...used. The instruction given by the trial court correctly states the law on possession of recently stolen property. (See, State v. Atkinson, 215 Kan. 139, 523 P.2d 737.) All points raised by defendant have been considered and found to be without merit. The judgment of the trial court is ...