State v. Close
| Decision Date | 03 May 1930 |
| Docket Number | 29,098 |
| Citation | 130 Kan. 497,287 P. 599 |
| Parties | THE STATE OF KANSAS, Appellee, v. RAY CLOSE, Appellant |
| Court | Kansas Supreme Court |
Decided January, 1930.
Appeal from Reno district court; JOHN G. SOMERS, judge.
Judgment affirmed.
SYLLABUS BY THE COURT.
1. LARCENY--Evidence. The evidence to establish defendant's guilt of the theft of an automobile considered and held sufficient to sustain the verdict and judgment.
2. SAME--Evidence--Possession of Stolen Article--Effect of Codefendant's Confession on Presumption. The fact that a codefendant confessed before an examining magistrate that he had stolen the automobile was not sufficient to overthrow the prima facie case of defendant's guilt based upon his unexplained possession of, and exercise of dominion over, the vehicle some two or three weeks after it was stolen.
3. CRIMINAL LAW--Sentence--Habitual Criminal Act Construed. After defendant was found guilty of grand larceny for the theft of the automobile, for which crime the ordinary penalty prescribed is penal servitude for not less than five nor more than fifteen years, it was shown that defendant had formerly been convicted of another felony, the theft of a cow, for which the statutory punishment was penal servitude for from one to seven years. Held, that by the habitual-criminal act of 1927 the legislature intended to increase the punishment imposed on a second offender by doubling the punishment which would have been imposed upon him if he had been a first offender; and a sentence of ten to thirty years' imprisonment was properly imposed in the instant case.
Carr W. Taylor and C. O. McGill, both of Hutchinson, for the appellant.
William A. Smith, attorney-general, Roland Boynton, assistant attorney-general, Charles Hall, county attorney, and John Fontron, of Hutchinson, for the appellee.
OPINION
The defendant was convicted of the theft of an automobile. He assigns error on the insufficiency of the evidence, and questions the validity of the sentence.
On November 13, 1928, a Studebaker automobile, 1924 model, engine number 69461, belonging to O. F. Wright, of Hutchinson, was stolen. Early in February, 1929, such an automobile was discovered by local police officers in a garage behind defendant's place of abode and eventually identified as the stolen car. It had been partly disguised by the nickeled work around the radiator having been painted.
The state's evidence tended to show that defendant had frequently been seen driving the car in and around Hutchinson at various times between the date it was stolen and the time it was discovered and identified. It was also shown that he had borrowed a small paint gun such as could be used for painting the car to disguise it. It was also shown that he had rented a stall in a three-stall garage, in one of which the automobile was sometimes seen after it was stolen. The automobile was not seen standing in the particular stall which defendant had rented, but it was shown that defendant and others had placed a [stolen?] tractor in defendant's stall, and that the owner of the garage was aware that defendant was sometimes putting the automobile in a vacant stall in the same garage. It was also shown that defendant had brought the car to a repair shop to have the starter repaired, and at another time he sent its generator to the same workshop for repair, and that defendant later called for it. The last two incidents occurred about Christmas time, 1928. Other incidents showing defendant's possession of the car and his exercise of dominion over it were abundantly shown to make a prima facie case against him for its theft under the familiar and oft-repeated rule of this court touching unexplained possession of recently stolen property. (State v. Cassady, 12 Kan. 550; State v. Bell, 109 Kan. 767, 201 P. 1110; State v. Bartholomew, 116 Kan. 590, 227 P. 366; State v. Wood, 118 Kan. 58, 233 P. 1029.)
It is contended, however, that the force of this rule was altogether dissipated because a codefendant, Virgil Shaw, confessed at the preliminary examination that he had stolen the automobile. Defendant argues that such confession by another person was a complete and satisfactory explanation which entirely destroyed the state's case against defendant based on his possession of the recently stolen automobile. We think not. How it came into defendant's possession was just as much an incriminating dilemma for him to explain as ever. He still continued under the risk of nonpersuasion. (State v. Bell, supra.) It seems needless to elaborate on the proposition that more than one person may participate in the theft of an automobile, and the fact that one of them confesses his guilt contributes little or nothing towards the exculpation of the others. Another point urged against the evidence is that defendant's possession of the stolen car was at too remote a time after its theft to have any probative value. We think not. It was stolen on November 13. One witness testified that he saw defendant driving it "the latter part of November." The error assigned on the insufficiency of the evidence is not sustained.
The next error assigned relates to the sentence which was imposed on defendant--ten to thirty years in the penitentiary. After the verdict of guilty was rendered and the cause came on for judgment and sentence, the state, upon due notice to defendant, adduced proof that defendant had been previously convicted of grand larceny for the theft of a cow and had served a term of imprisonment in the state penitentiary therefor. Pursuant thereto the defendant was sentenced as above. The pertinent statutes are a part of one section of the crimes act and the statute of 1927 known as the habitual-criminal act. These read:
"Persons convicted of grand larceny shall be punished in the following cases as follows: First, for stealing any automobile or motor vehicle, by confinement at hard labor for not less than five years and not more than fifteen years; . . ." (R. S. 21-534.)
The validity of this statute has already been decided (State v. Woodman, 127 Kan. 166, 272 P. 132), but the question for our present consideration concerns its proper interpretation. Defendant calls attention to the punishment imposed by the crimes act for stealing a cow--one to seven years in the penitentiary (R. S. 21-534), and suggests the habitual-criminal act means that upon a second conviction of a felony the punishment should be governed by the nature and extent of the punishment imposed for the crime for which he was first convicted, thus:
Punishment for the first felony--stealing a cow--one to seven years' imprisonment.
Ergo, punishment for the second felony--stealing an automobile--not less than twice that first sentence, or two to fourteen years' imprisonment.
There is manifestly something wrong with that reasoning. A first offender convicted of stealing an automobile is to be given a sentence of five to fifteen years. How, then, could the persistent and unreformed felon who stole this automobile be given a sentence of "not less than two years nor more than fourteen years" without rendering the statute ridiculous? The avowed purpose of the habitual-criminal act is to provide additional punishment for criminals who are convicted of a felony for a second and third time. To gauge the proper punishment by doubling the length of sentence imposed for some prior offense would frequently lead to absurd conclusions, just as it would do in this case if defendant's interpretation of the statute were adopted. To illustrate this point a little further: Suppose a first-time offender is convicted of murder in the second degree and given a sentence of twenty years' imprisonment. Eventually he will be released, and suppose that in a moment of weakness he afterwards commits the relatively minor felony of betting in a common gaming house, selling lottery tickets, or the like, either of which would ordinarily carry a sentence of a year's imprisonment. Should such second offense carry a sentence of forty years' imprisonment because the poor wretch had once served twenty years for homicide? We do not now question the power of the legislature to enact a statute to that effect, but the court is under a solemn responsibility to avoid giving a fantastical interpretation to a deliberate legislative enactment.
In City of Independence v. Turner, 114 Kan. 731, 733, 220 P. 195, it was said:
"Where the purpose of the legislature is plain, the misuse or omission of a word or phrase will not defeat the evident purpose and courts are warranted in supplying words which are consistent with the context of the act and the manifest intention of the legislature."
In Pfleiderer v. Brooks, 122 Kan. 647, 650, 253 P. 549, where a question of statutory construction was under consideration, Mr. Chief Justice Johnston, speaking for the court, said:
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