State v. Bell
| Decision Date | 12 November 1921 |
| Docket Number | 23,290 |
| Parties | THE STATE OF KANSAS, Appellee, v. DAN BELL, Appellant |
| Court | Kansas Supreme Court |
Decided July, 1921.
Appeal from Smith district court; WILLIAM R. MITCHELL, judge.
Judgment affirmed.
SYLLABUS BY THE COURT.
1. CRIMINAL LAW -- Larceny of Automobile -- Evidence. The evidence tending to establish the guilt of a defendant charged with the theft of an automobile examined, and held to justify the overruling of defendant's demurrer to the state's evidence.
2. SAME -- Evidence -- Possession of Stolen Automobile. The evidence which tended to show that the car had been in the possession of the defendant shortly after it was stolen until he delivered it to a confederate to be sold, examined, and held sufficient to prove the fact of such possession although no eyewitness thereto was produced by the state.
3. SAME--Evidence--Dies for Altering Numbers of Engine Competent. Where the numbers on an automobile engine of a stolen car are altered after the theft, it is admissible in evidence to show that dies for altering such engine numbers had been seen at the home of the defendant.
4. SAME--Larceny of Automobile--No Error in Rulings on Evidence. Error cannot ordinarily be predicated by a defendant in a criminal case on the admission of evidence to which he makes timely objection, when his objection is promptly sustained and the jury is directed to disregard such evidence.
5. SAME--Larceny--Possession of Stolen Automobile--Instructions. The instructions touching the evidential significance attaching to the possession of recently stolen property examined, and held to be a correct statement of pertinent law.
6. SAME--Larceny of Automobile--Defendants Recent Possession--Burden of Proof. When the state has established a prima facie case against a defendant charged with larceny and a part of the state's case is the proof of defendant's recent possession of the stolen property, the defendant is under the necessity of combating that prima facie case by a reasonable and creditable explanation of his possession of the property consistent with his innocence, and his failure to make such explanation subjects him to the risk of conviction.
7. SAME--Larceny of Automobile--Instructions Relating to Defendant's Possession. Where possession of a stolen automobile had to be established by the circumstances shown in evidence, the trial court correctly instructed the jury that "possession . . . does not require that the defendant be actually or physically in said automobile nor that he have hold of it, but does mean the exercise of dominion or control over said automobile to the exclusion of the owner, with such proximity to the said automobile as renders it possible to physically and actually possess it."
A. W. Relihan, T. D. Relihan, both of Smith Center, and N. C. Else, of Osborne, for the appellant.
Richard J. Hopkins, attorney-general, and Miles Elson, county attorney, for the appellee; R. W. Turner, and D. F. Stanley, both of Mankato, of counsel.
The defendant was convicted of grand larceny for the theft of a Ford automobile.
The state's evidence, in brief, disclosed that the car in question belonged to Guy Chase, a resident of Smith county. Chase and his family attended a show in Smith Center one evening in September, 1919, leaving their car nearby. After the show their car was missing. The defendant, Dan Bell, and one Parsons who had previously discussed the possibilities of the business of dealing in stolen automobiles, met some time after the theft of the Chase car, and defendant told Parsons that he had a car for him.
Parsons and Bell went to the farmhouse of Bell's mother some ten miles from town. They carried with them a can of paint procured at Bell's home in Smith Center. After supper Bell left the house and a few minutes later Parsons heard a motor running and walked out and met Bell coming from its direction. Bell said to him: "Your car is ready." The car was sitting out in the road about a hundred yards from the house. Parsons found the engine running, and the paint which they had carried from Bell's house in Smith Center was in the car. Parsons drove the car to Glade (in Phillips county) where he stopped and painted it. Then he drove it to a place near Jennings (in Decatur county) where he traded it to a man named Hahn for a Liberty bond, a motorcycle, and a check for $ 125. Parsons left the motorcycle with an acquaintance near Lenora, and deposited the check in a bank in Oronoque with instructions to the banker to pay the proceeds to "Charles Smith." Parsons then returned to Smith county and told Bell what he had done with the car; and some days later he and Bell drove out to Oronoque and Bell called at the bank, representing himself to be "Charles Smith"; and the proceeds of the check were paid to him. Parsons and Bell then went to Lenora and got the motorcycle and put it in their car and drove to Norton where they tried to dispose of it. Failing in that, they carried it home with them to Smith Center. Another significant incident was the fact that another Ford car belonging to a man named Coleman, of Downs, had been stolen about the same time as the Chase car, and this Coleman car was proved to have been in Bell's possession. The tires and top of the Coleman car were on the Chase car at the time it was made ready by Bell for Parsons' run with it to Glade and Jennings, and the tires of the Chase car were on the Coleman car when the latter car was in defendant's possession.
The first specification of error relates to the overruling of defendant's demurrer to the state's evidence. In view of the foregoing brief summary of the evidence, that contention cannot be sustained. It is argued that there is no evidence that Bell stole the car or that he was aware of its theft for some days after it was stolen. Bell's guilt was proved in the common and usual way that the guilt of most thieves is established--by showing the fact of the theft of the car and...
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