State v. Bartholomew

• Decision Date: 05 July 1924
• Docket Number: 25,417
• Citation: 116 Kan. 590,227 P. 366
• Parties: THE STATE OF KANSAS, Appellee, v. ERNEST BARTHOLOMEW, Appellant
• Court: Kansas Supreme Court

227 P. 366

116 Kan. 590

THE STATE OF KANSAS, Appellee, v. ERNEST BARTHOLOMEW, Appellant

No. 25,417

Supreme Court of Kansas

July 5, 1924

Decided July, 1924

Appeal from Sedgwick district court, division No. 1; THOMAS E ELCOCK, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. CRIMINAL LAW--Information--Larceny--Allegations of the Title to Property Stolen. In an information charging larceny, the title to the property may be alleged to be in the person in whose possession it was when it was stolen, although the ownership may be in some other person.

2. SAME--Larceny--Evidence--Stolen Goods Found in Possession of Defendant--Weight of Evidence for the Jury. There was evidence which tended to show that property was stolen on July 7 and was found in possession of the defendant on July 21 following. Held, The time between the taking and the finding was not so great as to render the evidence of no force or effect.

3. SAME--Evidence--Change of Engine Numbers on Stolen Automobile--Other Cars With Changed Numbers Found in Possession of Defendant. Evidence is competent which tends to show that the engine numbers on a stolen automobile found in the possession of the defendant had been changed after the automobile had been stolen and that other cars with changed or altered numbers were found in possession of the defendant at the same time.

4. SAME--Trial Court, in Its Discretion, May Sentence Defendant to State Penitentiary or State Industrial Reformatory. The trial court, in its discretion, may sentence a defendant who is twenty-three years old and who is convicted of grand larceny, to either the state penitentiary or the state industrial reformatory.

Clement F. Clark, of Wichita, for the appellant.

C. B. Griffith, attorney-general, W. A. Blake, county attorney, H. C. Castor, John W. Wood, deputy county attorneys, and George Seifkin, of Wichita, for the appellee.

OPINION

MARSHALL, J.:

The defendant, twenty-three years old, appeals from a judgment convicting him of grand larceny and sentencing him to the penitentiary.

1. The defendant contends that "there was a fatal variance between the pleading and proof on the part of the state," and that the court erred in overruling the demurrer to the evidence of the state, in denying the motion to discharge the defendant, in submitting the case to the jury, and in its instruction to the jury.

The information charged the defendant with larceny of an automobile, valued at $ 618, "the personal property of J. E. Klintworth." The undisputed testimony shows that the automobile was the property of the Motor Equipment Company and that J. E. Klintworth had the temporary custody of it as an employee of the company. Concerning proof of ownership of the car the court instructed the jury as follows:

"You are instructed that, before you can find the defendant guilty of grand larceny of an automobile, the state must prove to your satisfaction, beyond a reasonable doubt, the following propositions: . . .

"That it was the property of J. E. Klintworth. . . .

"Proof, in the manner required by these instructions, that at the time in question the motor was rightfully in the possession of the said J. E. Klintworth, as the agent, servant and employee of the Motor Equipment Company, will be sufficient to satisfy the requirement of law that the motor vehicle must have been the property of J. E. Klintworth."

The defendant cites The State v. Beaty, 62 Kan. 266, 62 P. 658, where this court said:

"A person having the mere custody or temporary use of personal property in the capacity of servant of the owner, and who could not maintain an action for trespass as bailee for injury to the same, is not properly designated as the owner in an information for larceny." (Syl. P 2.)

Contrary to the rule stated in The State v. Beaty, this court in The State v. Pigg, 80 Kan. 481, 103 P. 121, declared that--

"The actual status of the legal title to stolen property is no concern of the thief. In an information charging larceny the title to the property may be laid either in the owner or the person in whose possession it was when it was taken, even though that person had stolen it from someone else." (Syl. P 6.)

In the opinion in the latter case the court said:

"The information alleged that the money was the property of John McIntosh. He testified that the money belonged to his father and that when he left home he just took it. This cannot be held to constitute a variance, because the actual status of the legal title to stolen property is no concern of the thief. The possession of the property in the complaining witness was sufficient to make it the subject of larceny, and the title may be laid either in the owner or the person from whom it was taken. This is the law...