State v. Cippola
| Decision Date | 08 March 1969 |
| Docket Number | No. 45240,45240 |
| Citation | 202 Kan. 624,451 P.2d 199 |
| Parties | STATE of Kansas, Appellee, v. Donald Eugene CIPPOLA, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
In a prosecution for grand larceny in which the defendant was found guilty by a jury, the record is examined, and it is held: The county attorney was not guilty of misconduct and the district court did not err (1) in overruling the defendant's motion for a directed verdict and in approving the jury's verdict of guilty, (2) in overruling the defendant's motion to quash the information, (3) in overruling the defendant's motion to require the state to furnish the addresses and telephone numbers of witnesses endorsed on the information (4) in the admission of certain evidence set out in the opinion, (5) in permitting an amendment of the information as to form, and (6) in overruling the defendant's motion for a new trial.
James C. Thompson and Anthony R. Russo, Kansas City, argued the cause, and William R. Chambers, Kansas City, with them on brief for appellant.
James A. Wheeler, Asst. County Atty., and James W. Bouska, County Atty., argued the cause, and Kent Frizzell, Atty. Gen., with them on brief for appellee.
The appellant was convicted by a jury of the crime of grand larceny (K.S.A. 21-533) and given a lengthy sentence in the Kansas State Penitentiary pursuant to the Kansas Habitual Criminal Act. (K.S.A. 21-107a.) He has appealed, and asserts that during the trial of his case the district court committed error prejudicial to his substantial rights.
The appellant is hereafter referred to as the defendant.
Evidence introduced by the state showed that on the evening of July 27, 1967, the defendant, Donald Eugene Cippola, was in the Mission Shopping Center in Johnson County, Kansas, at a time when Jerry Pike of the Mission police department was cruising slowly in his patrol car through the parking lot of the shopping center. Pike noticed a dark blue Thunderbird automobile and a young man loitering about the car. He stopped to watch the activities about the Thunderbird. He saw the defendant come from the Parkview Drug Store with a suit coat draped over his right shoulder, and proceed to the Thunderbird, open the trunk, bend down and drop some items into it and then close the trunk. The defendant spoke briefly to the young man loitering about the car and proceeded back into the drug store. At that time Pike confronted the young man loitering near the car and after a few words between the two, the young man ran out of the parking lot, up the hill, and onto the highway. At back out of the drug store with the suit coat still draped over his right shoulder, and started toward the Thunderbird. Pike called to the defendant, and he immediately turned and started walking away from the Thunderbird. Pike testified he got out of the patrol car and tried to catch up to where the defendant was when the phonograph records started hitting the pavement. He did not see them drop but heard them and, because of other cars, was a few seconds in getting around the cars to where he had the defendant in full view and observed the Parkview 88 price tagged records lying on the parking lot within three or four feet of the defendant. No one else was in the immediate vicinity of the defendant when Pike saw him and no other persons were observed in the area where the records were lying on the pavement. Parkview 88 is the number of the drug store owned by Parkview G.E.M., Inc.
Pike took the defendant into custody, summoned help by radio, and several members of the Mission police department arrived shortly. Pike directed the officers to gather up the records and take them and the defendant to the Mission police department. Upon Pike's arrival at the police department he marked the records and shortly thereafter took the defendant and the records to the Johnson County jail where the defendant was turned over to Detective John Waner of the Johnson County sheriff's office. Waner marked the record albums and put them in the property room of the sheriff's office.
Prior to conversing with the defendant, Waner fully advised him of his constitutional rights. In a conversation with Waner, the defendant asked him if the case could be 'fixed,' the charges reduced, or the record albums destroyed. At no time during that interview or any other interview did the defendant offer or was he able to produce a sales slip showing he had purchased the records, or show he was authorized to remove the records from the Parkview 88 Drug Store.
Meanwhile Pike impounded the Thunderbird for the purpose of obtaining a search warrant to search the trunk of the car. A search warrant was obtained and executed the following morning and similarly price-tagged record albums from the Parkview 88 Drug Store were found in the trunk.
The evidence showed the normal procedure for the sale of records at the drug store was that the top half of the price tag of each record album was removed and placed in the cash register and, if there were a large quantity sale of record albums, a box and shopping cart would be called for and all of the records packed in the box and help given to deliver them to the purchaser's automobile. There was no evidence of any such procedure being followed on the evening of July 27, 1967. The ignition key to the Thunderbird was found on the defendant's person and every record album introduced into evidence contained the same full price tag, that is, the top half of the price tag had not been removed as a cash purchase pursuant to the Parkview 88 rules and procedure. The evidence further disclosed that the defendant had four prior similar convictions in the state of Missouri. No witnesses were called by the defendant, nor did he take the witness stand to testify in his own behalf.
The defendant first contends the district court erred in overruling his motion for a directed verdict and in approving the jury's verdict of guilty over his objection that proof of the corpus delicti was not established beyond a reasonable doubt. The point is not well taken. The corpus delicti may be proved by the direct testimony of persons who saw the act, or by indirect and circumstantial evidence, or partly by one and partly by the other. No exclusive mode of proof of the corpus delicti is prescribed by law. Circumstantial evidence is sufficient, if strong and cogent, if it excludes every hypothesis other than guilt and leaves no room for reasonable doubt. (State v. Doyle, 201 Kan. 469, 478, 441 P.2d 846.)
We are not predisposed to restate the evidence, but it may be said all the evidence pointed to the fact that the record albums in question were the property of Parkview 88; that the defendant had not been authorized to remove them from the store without paying for them; that the value of the record albums was more than $50; that the defendant came from the drug store on a hot summer night with his suit coat draped over his shoulder in such a way that it would cover any record albums hid under his arm; that he returned to the store with the coat still draped over his shoulder rather than leaving it in the Thunderbird, and again came out of the store, and when approached by Pike, he walked away from the Thunderbird and in a short distance dropped the records where they were found within three or four feet from where he was standing. Considering all the facts and circumstances, it may be said the district court did not err in overruling the defendant's motion for a directed verdict and in approving the jury's verdict of guilty. When considering the sufficiency of circumstantial evidence to sustain a criminal conviction, the function of this court is limited to ascertaining whether there is a basis in the evidence for a reasonable inference of guilt. In State v. Satterfield, 202 Kan. 395, 449 P.2d 566, it was held:
'Before a verdict of guilty which has been approved by the trial court may be set aside because of insufficiency of evidence, it must clearly be made to appear that upon no hypothesis whatever is there substantial evidence to support the conclusion reached in the lower court.' (Syl. 3.)
See, also, State v. Satterfield, 202 Kan. 391, 449 P.2d 564.
It is next contended the district court erred in overruling the defendant's motion to declare a mistrial, based upon his claim that the assistant county attorney made certain inflammatory statements in his closing argument to the jury. In the defendant's closing argument to the jury, one of his counsel stated,
In his closing argument to the jury the assistant county attorney responded, Counsel for the defense did not object to the prosecutor's statement regarding the Mafia, but objected a few moments later to the prosecutor's remarks...
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State v. Grissom
..."could have" admitted evidence of these convictions, relying upon State v. Baker, 237 Kan. 54, 697 P.2d 1267 (1985), and State v. Cippola, 202 Kan. 624, 451 P.2d 199, cert. denied 396 U.S. 967, 90 S.Ct. 446, 24 L.Ed.2d 432 (1969). Unlike in Baker and Cippola, the convictions were not conced......
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...rebuttal evidence, proof beyond the identity of the name in the document is not required for admission of the evidence. State v. Cippola, 202 Kan. 624, 629, 451 P.2d 199, cert. denied 396 U.S. 967, 90 S.Ct. 446, 24 L.Ed.2d 432 (1969)." (Emphasis added.) State v. Greever, 19 Kan.App.2d 893, ......
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