State v. Caldrone, 45882
| Decision Date | 17 July 1970 |
| Docket Number | No. 45882,45882 |
| Citation | 205 Kan. 828,473 P.2d 66 |
| Parties | STATE of Kansas, Appellee, v. John C. CALDRONE, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
In a criminal action in which appellant was convicted of possession of burglary tools, the record is examined and it is held: The trial court did not err in (1) various trial rulings made in connection with the fact appellant had been previously tried and acquitted upon a charge of attempted grand larceny allegedly committed substantially at the same time as the burglary tool offense; (2) instructions to the jury; (3) failure to suppress evidence removed from appellant's automobile on the ground of unlawful search and seizure; (4) admission of evidence of previous convictions; (5) admission of rebuttal evidence; or (6) denial of motion for new trial. Further held, (7) the evidence was sufficient to warrant submission to the jury; (8) K.S.A 21-2437 is not invalid because of vagueness and uncertainty; and (9) the habitual criminal act (K.S.A. 21-107a) is not constitutionally invalid.
Hugh H. Kreamer, Asst. County Atty., argued the cause, and Kent Frizzell, Atty. Gen., was with him on the brief for appellee.
Edward M. Boyle, of Payne & Jones, Chartered, Olathe, argued the cause and was on the brief for appellant.
HARMAN, Commissioner.
In November, 1967, defendant John C. Caldrone was convicted by a jury of possessing burglary tools in violation of K.S.A 21-2437. In the same trial he was acquitted of a charge of attempted grand larceny from a truck. Defendant appealed his conviction upon the burglary tool offense to this court with the result that, because of failure to instruct the jury as to the requisite intent, the judgment was set aside with directions to grant a new trial (State v. Caldrone, 202 Kan. 651, 451 P.2d 205).
New trial has now been had and defendant was again convicted of the offense of possession of burglary tools. He again appeals.
We will state the facts pertinent to the specifications of error as such is discussed. First appellant challenges various orders of the trial court overruling his objections and request for instructions in connection with the admission into evidence of the circumstances immediately preceding his apprehension and arrest in the case.
The state's evidence revealed the following:
At about 5:00 a. m. on September 3, 1967, a Mrs. Nickol, a resident of Prairie Village, heard noises outside her house. She looked out and saw a man pounding upon the side of a panel truck parked in her neighbor's driveway. She awakened her husband who called the police. A patrol car containing officers Morrow and Smith was cruising in the neighborhood and arrived almost immediately. The police car threw a light on the man. Mrs. Nickol and the two officers observed he was wearing dark trousers and a light-colored shirt or jacket. The man ran between two houses. Officer Morrow jumped out of his car and ran after the man but the man cut back toward the street and eluded pursuit in the darkness. As Officer Morrow returned to the street he heard a car door slam, a motor starting, and the sound of a car moving. No lights were visible on the car. It moved down the street past four houses and pulled into a driveway to turn around. Officer Morrow then caught up with the car, drew his revolver and stopped the vehicle. Appellant was the driver. He appeared to be out of breath. He had on dark trousers and a light green sweater. Appellant stated to the officer he had been drinking and driving around, had become sleepy and had pulled his automobile over and fallen asleep. Officer Smith returned to the scene and appellant was arrested and his car searched. The alleged burglary tools were found inside the vehicle.
At appellant's first trial the prosecution's evidence revealed the panel truck was equipped with a burglar alarm connected to its doors and brakes; a hole had been cut in the side of the truck that night; the truck contained cigars of a value of about $3,000; three boxed of cigars were missing from the truck; none of the missing boxes was in appellant's possession when he was apprehended.
At the second trial these facts were not revealed to the jury but at appellant's request were presented to the trial judge outside the presence of the jury (a different judge had presided at the first trial). Appellant sought throughtout to keep from the jury any evidence from which it might be inferred he was the man seen pounding on or standing by the panel truck. Failing this through various adverse rulings made by the court at the request of the prosecution, appellant sought an instruction to the jury that he had been charged with and acquitted of attempted grand larceny of cigars from the truck. The trial court denied any such instruction or information going to the jury and denied an instruction limiting evidence of events prior to appellant's arrest by Officer Morrow for the purpose of showing why the police were in the area. Appellant's counsel did state to the jury appellant had been charged for crime against the truck and had been acquitted but the court, at the prosecution's request, admonished the jury to disregard counsel's statement. The trial court also refused admission of appellant's proffered evidence that police laboratory inspection and tests indicated the tools found in his automobile could not have made the hole found in the truck.
The basis of appellant's contention really is he was prejudiced by reception of evidence as to his presence at and connection with the truck when actually he had been acquitted in the first trial of attempted grand larceny from the truck, which he was not permitted to show. Appellant urges the prosecution was barred from showing what it did by reason of the doctrines of double jeopardy, res indicata, collateral estoppel and irrelevancy of evidence. Appellant argues the prosecution in presenting its case and opposing his requests took contradictory positions prejudicial to him. The various ruling complained of may be considered together.
Appellant contends that under the facts presented the alleged offense of possession of burglary tools was a lesser included offense to that of attempted larceny and his acquittal of the latter should bar further prosecution for possession of the burglary tools. He points to language in our first Caldrone opinion, in rejecting the contention there made of improper joinder of offenses in a single trial, that under the facts disclosed the offenses of attempted larceny and possession of burglary tools are corollary to each other and a part of one comprehensive plan. That which was said does not justify the conclusion sought to be reached by appellant. We did order new trial on the burglary tool charge and the fact remains that the elements constituting the offenses of attempted larceny and possesstion of burglary tools are not the same. The two are separate and distinct offenses. That two offenses are alleged or shown to have been committed at or substantially near the same time so they may be tried together does not change their essential relation to each other. Appellant has never been placed in jeopardy more than once for the same offense.
Appellant argues it has been conclusively litigated by reason of his acquittal on the attempted larceny charge that he was not the person seen near the panel truck and pursued in the darkness by the police and that evidence giving rise to a contrary inference should not have been permitted. The doctrines of res judicata and collateral estoppel urged by appellant have been accorded judicial recognition in the field of criminal law. Without going into them we have examined the precedent cited by industrious counsel but find none applicable under the facts here presented so as to compel the conclusion the prosecution was foreclosed from showing appellant's presence near the truck on the night in question.
The jury instructions contained the statutory definition of burglary tools:
'* * * any instrument or any other mechanical devices whatsoever, nitroglycerine or other explosive, designed or commonly used for breaking into any vault, safe, railroad car, boat, vessel, warehouse, store, shop, office, dwelling house, or door, shutter or window of a dwelling of any kind. * * *' (...
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