State v. Caldrone

• Decision Date: 08 March 1969
• Docket Number: No. 45244,45244
• Citation: 451 P.2d 205,202 Kan. 651
• Parties: STATE of Kansas, Appellee, v. John C. CALDRONE, Appellant.
• Court: Kansas Supreme Court

Page 205

451 P.2d 205

202 Kan. 651

STATE of Kansas, Appellee, v. John C. CALDRONE, Appellant.

No. 45244.

Supreme Court of Kansas.

March 8, 1969.

Syllabus by the Court

1. Whether a defendant in a criminal action, who is charged with separate felonies, may be tried upon all of the several counts of the information at the same time and in one trial rests in the sound discretion of the trial court.

2. In a criminal action where offenses constitute one comprehensive plan, transaction or where one offense is a corollary to the other, the offenses charged in separate counts may be joined in one information and tried in one trial.

3. K.S.A. 21-2437 is not invalid as being uncertain and vague or as being otherwise unconstitutional. (Following State v. Hart, 200 Kan. 153, 434 P.2d 999.)

4. A violation of K.S.A. 21-2437 requires on the part of one who possesses any instruments or other mechanical devices designed or commonly used for breaking into any vault, safe, railroad car, boat, vessel, warehouse, store, ship, office, or dwelling house, an intent to employ such instruments or devices in burglarious activities. The intent required is not to use the proscribed tools or instruments in a particular burglary but a general purpose to employ the same in burglarious enterprises. (Following State v. Hart, supra.)

5. The record is examined, in a criminal action charging attempted grand larceny in violation of K.S.A. 21-533 and K.S.A. 21-101 and possession of burglary tools in violation of K.S.A. 21-2437, and for reasons appearing in the opinion it is held: (1) The offenses of attempted larceny and possession of burglary tools, under facts and circumstances, were properly joined as separate counts in one information and tried in one trial; (2) K.S.A. 21-2437 is not void for any of the reasons urged; (3) the information sufficiently alleged a violation of 21-2437; (4) the evidence was sufficient to warrant submission to the jury; and (5) the trial court erred in failing to instruct the jury that intent is an element of the offense described in 21-2437.

Edward M. Boyle, Olathe, argued the cause, and Howard E. Payne, W. C. Jones, Robert P. Anderson, Keith Martin, H. Thomas Payne, John T. Flannagan, John H. Johntz, Jr., and Carl Logan, Olathe, were with him on the briefs for appellant. Hugh H. Kreamer, Asst. County Atty., argued the cause, and Kent Frizzell, Atty. Gen., and James W. Bouska, County Atty., were with him on the briefs for appellee.

KAUL, Justice.

The defendant, John C. Caldrone, appeals from a conviction of possessing burglary tools in violation of K.S.A. 21-2437. In the same information defendant was charged with attempted grand larceny but was acquitted of that charge.

According to the state's evidence, Mrs. Jean Nickel, a resident of Prairie Village, heard pounding noises outside her house at about 5:00 a. m., on September 3, 1967. She looked out and saw a man pounding on a cigar truck driven by her neighbor, Mr. Dozier, and owned by Niles & Moser Cigar Co. Mrs. Nickel called the police and officers Morrow and Smith arrived within a few minutes, at 5:14 a. m.

As the officers arrived, the headlights of their police car revealed a man by the Dozier truck. The officers put a spot light on the man and described him as wearing dark trousers and a light sweater. The man ran and officer Morrow pursued. Morrow heard a car door slam, ran to the car and found defendant dressed in dark trousers and a light green sweater.

Morrow and Smith found various tools in the car and in the trunk. The tools and devices included tin snips, bolt cutters, hatchet, screwdrivers, a shortwave transistor radio with a listening device, and a telectron garage door opener.

Detective Fred Hauser of the Kansas City, Missouri Police Department, testifying as an expert, gave his opinion that the tools and devices were commonly used as burglary tools. Hauser also testified that he had known the defendant for nineteen or twenty years and that four prior convictions of defendant for burglary and larceny, set out in an exhibit offered by the state, were convictions of defendant in the State of Missouri.

Dozier, driver of the truck, testified the truck had a burglar alarm, that it was in operation and controlled by the doors and brakes. He described the hole, found the following morning, which had been cut into the side of the truck. He said the truck contained cigars of the value of approximately $3,000 and that three boxes of cigars were missing. The missing boxes were not in defendant's possession when he was apprehended.

Although numerous points are raised on appeal, only two basic issues are involved: (1) joinder of the two charges in one information and (2) the constitutionality and interpretation of K.S.A. 21-2437.

Defendant claims error by the trial court in overruling his motion for separate trials as to attempted grand larceny, charged in Count I, and possession of burglary tools, charged in Count II.

In this jurisdiction the question of joinder of separate felonies in one information is viewed largely as a question of procedure resting in the sound judicial discretion of the trial court. (State v. Brown, 181 Kan. 375, 312 P.2d 832; State v. Aspinwall, 173 Kan. 699, 252 P.2d 841, and State v. Neff, 169 Kan. 116, 218 P.2d 248, cert. den. 340 U.S. 866, 71 S.Ct. 90, 95 L.Ed. 632; and State v. Hodges, 45 Kan. 389, 26 P. 676.) While the exercise of judicial discretion by a trial court in determining whether joinder is permissible depends on the circumstances attendant in a particular case (State v. Thompson, 139 Kan. 59, 29 P.2d 1101), generalized guidelines are well-established. In general terms where offenses constitute one comprehensive plan, transaction or where one offense is a corollary to the other, they may be joined as separate counts in one information and tried in one trial. (State v. Martin, 175 Kan. 373, 265 P.2d 297; State v. Aldrich, 174 Kan. 335, 255 P.2d 1027; State v. Aspinwall, supra, and State v. Brown, supra.)

In the recent case of State v. Omo, 199 Kan. 167, 428 P.2d 768, the consolidation for trial of charges in two informations consisting of burglary, larceny and possession of a pistol after a conviction of a felony was held not to be prejudicial error warranting a new trial. In State v. Browning, 182 Kan. 244, 320 P.2d 844, the defendant was charged in one information with two counts of possession of a pistol, after being convicted of armed robbery, and in another information with four counts of armed robbery and one count of attempted robbery, all at different times. Over objection, defendant was tried in one trial for all offenses contained in both informations. On appeal this court affirmed, holding the question of joinder to rest in the discretion of the trial court and that consolidation of the two informations for trial did not amount to prejudicial error.

Under the circumstances of this case, the offenses of attempted larceny and possession of burglary tools, are certainly corollary to each other and a part of one comprehensive plan.

In view of the evidence submitted a separate trial here, as to either offense, would have barred a subsequent prosecution on the other under the provisions of K.S.A. 62-1449.

We find no error in the trial court's rulings denying a motion for separate trials or in overruling defendant's subsequent motion for a mistrial for failure to separate.

Directing our attention now to the charge of possession of burglary tools, we shall examine the points raised by defendant. We should first point out that this case was tried November 13, 1967. The trial court did not have the benefit of our decision in State v. Hart, 200 Kan. 153, 434 P.2d 999, announced on December 9, 1967. The statute involved, K.S.A. 21-2437, reads as follows:

'That any person who makes, mends, designs, or sets up, or who knowingly has in his custody or concealed about his person, 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, shall be guilty of a felony, and upon conviction thereof shall be punished by imprisonment in the penitentiary for not less than one year nor more than three years.'

The defendant here, by asserting similar reasoning to that advanced by the appellant in the Hart case, argues that K.S.A. 21-2437 is unconstitutional because it fails to prescribe on its face a requirement of intention. Defendant's assertion is answered by our decision in Hart where we held:

'As construed in this opinion, K.S.A. 21-2437 is not invalid as being uncertain and vague or as being otherwise unconstitutional.' (Syl. 6.)

It was pointed out in the Hart opinion that, although the Kansas statute omits specific reference of intent, a proper construction of 21-2437 requires an intent on the part of one having burglary tools in his possession, to employ those tools in burglarious activities.

Further, in the Hart opinion the court said:

'There is no language in the present statute clearly indicating that criminal intent is not required, nor can such an inference be drawn from its language. Moreover, consideration of the subject matter of the statute, and the general purpose to be served thereby, leads us unerringly to the conclusion that the gravamen of the offense proscribed by the statute is, so far as this case is concerned, the possession of burglary tools intending they be put to a burglarious use. Otherwise, the innocent possession of ordinary tools which are suitable for and commonly used in unlawfully breaking and entering another's property, might very well subject an honest workman to the statute's penalty. Certainly the legislature intended no such outlandish result when it enacted this legislation. * * *' (p. 157, 434 P.2d p. 1003.)

We concluded in Hart that ...