State v. Brown

• Decision Date: 17 July 1969
• Docket Number: No. 45431,45431
• Citation: 457 P.2d 130,203 Kan. 884
• Parties: The STATE of Kansas, Appellee, v. Herman BROWN, Jr., Appellant.
• Court: Kansas Supreme Court

Page 130

457 P.2d 130

203 Kan. 884

The STATE of Kansas, Appellee, v. Herman BROWN, Jr., Appellant.

No. 45431.

Supreme Court of Kansas.

July 17, 1969.

Syllabus by the Court

The record is examined in an appeal from a conviction for second degree burglary and larceny and, for reasons appearing in the opinion, it is held that prejudicial error is not shown.

David C. All, Wichita, argued the cause, and was on the brief, for appellant.

R. K. Hollingsworth, Deputy County Atty., argued the cause, and Kent Frizzell, Atty. Gen., Keith Sanborn, County Atty., and Roger Hughey, keputy County Atty., were with him on the brief, for appellee.

FONTRON, Justice:

The defendant, Herman Brown, Jr., was convicted of second degree burglary and larceny. He has appealed.

Evidence presented by the state was to this effect: About 2 a. am., August 17, 1967, a liquor store was burglarized. The owner, Violet Stevens, lived next door. Whe was awakened by the sound of crashing glass and saw two men enter the store through a broken window and come out the same way with part of her stock of merchandise. Both men were young. One sported a goatee and wore heavy construction boots. The two men got into a maroon Volkswagen and sped away.

Officers were summoned, a description was given, and an alarm was sounded over the police network. About 2:45 a. m. an officer who had heard the police dispatch, passed by Thelma's Steak House and saw a man with a goatee. Pulling into the parking lot, the officer observed a maroon Volkswagen, which a license check showed was registered to a Roger R. Ayres, who was also charged with and convicted of the same burglary in the companion case of State v. Ayres, 203 Kan. 376, 454 P.2d 534. Blood appeared to be on the floor boards of the car. The officer entered the club looking for Ayres and while inside he saw this defendant sitting at the end of the bar with bandages on his right arm.

After Ayres was found in the club, he accompanied the officer outside where a search of his Volkswagen revealed several bottles of the stolen liquor. While Ayres and the officer were talking, Brown made an appearance, without his bandages. Upon questioning by the officer, Mr. Brown said he had received the cuts either in a fight or at work-the officer was not sure which. The cuts which appeared to be recent, had not scabbed, but the blood had dried or congealed. Brown admitted knowing Ayres but was not detained at this time. About two hours later he was arrested behind the garage at his home.

The defendant's fingerprints were found on three bottles of the purloined liquor which the officers had discovered in searching the maroon Volkswagen. Additional evidence disclosed that Mr. Brown had sold the bartender a half gallon of kentucky Gentlemen whiskey that same night for $8. This bottle of bourbon was identified as one of those stolen from Mrs. Stevens' liquor store.

With this brief summation of the evidence we turn to the points raised by the defendant on appeal.

It is first contended that the trial court erred in its instruction on possession of recently stolen property, in that possession was not defined. The instruction was in these words:

'One of the factual issues in this case is whether or not liquor taken in a burglary and larceny was in the possession of the defendant shortly after the commission of the burglary and the larceny.

'In this regard you are instructed that the laws of Kansas provide that possession of property taken in the commission of a burglary and larceny shortly after the commission of said burglary and larceny is prima facie evidence that the possessor or possessors committed the burglary and larceny, and throws upon any possessor the burden of explaining his possession. If such possession is unexplained, or if the explanation is not satisfactory, it is of itself sufficient to sustain a conviction of the burglary and larceny.'

This instruction substantially reflects the law in this area as expounded by this court from an early date. (State v. Cassady, 12 Kan. 550; State v. White, 76 Kan. 654, 92 P. 829, 14 L.R.A.N.S., 556; State v. Rice, 93 Kan. 589, 144 P. 1016; State v. Grey, 154 Kan. 442, 119 P.2d 468; State v. Williams 196 Kan. 628, 413 P.2d 1006; State v. Oswald, 197 Kan. 251, 417 P.2d 261.)

But the defendant complains that failure to instruct on the meaning of possession, in its relationship to the inference of guilt, permitted the jury to speculate. We agree that the term 'possession,' as used in the context of the instruction given by the courts imports more than an innocent handling of the stolen property; the term denotes control, or the right to exercise control, and dominion, over the property, even though this right be jointly shared. (See State v. Phinis, 199 Kan. 472, 430 P. 2d 251; State v. Runnels, 203 Kan. 513, 456 P.2d 16.) Hence we believe it would have been appropriate for the court to have included an instruction concerning the nature and quality of the possession from which the inference of guilt might be drawn. However, we believe its omission was not prejudicial to the defendant under the circumstances of this case.

Evidence offered by the defense...