State v. Coburn

• Decision Date: 06 November 1976
• Docket Number: No. 48254,48254
• Citation: 220 Kan. 750,556 P.2d 382
• Parties: STATE of Kansas, Appellee, v. Frank COBURN, Appellant.
• Court: Kansas Supreme Court

Page 382

556 P.2d 382

220 Kan. 750

STATE of Kansas, Appellee, v. Frank COBURN, Appellant.

No. 48254.

Supreme Court of Kansas.

Nov. 6, 1976.

Syllabus by the Court

1. K.S.A. 22-3402 places no restrictions on continuances ordered within the applicable time limits for the commencement of a trial, regardless of the length of the continuances or the reasons therefor.

2. The phrase 'not more than thirty days' in K.S.A. 22-3402(3)(d) is construed to mean 'to a date not more than thirty days after the limit otherwise applicable.'

3. Where a defendant is on bond a forty-seven day continuance ordered because of the condition of the trial court's docket is not improper where the trial date fixed is the 196th day after arraignment and the trial begins on that day.

4. In a prosecution for theft it is sufficient to charge and prove that the stolen property was taken from a named person or entity having a possessory interest superior to that of the accused, regardless of who holds legal title to the property.

5. In a prosecution for felony theft it is held: the trial court did not err (a) in refusing to discharge the defendant because he was not brought to trial within 180 days of his arraignment; (b) in instructing the jury on the elements of theft; or (c) in refusing to direct a verdict of acquittal for alleged insufficiency of the state's evidence.

Philip E. Winter, Asst. County Atty., argued the cause, Curt T. Schneider, Atty Gen., and Michael G. Patton, County Atty., were with him on the brief, for appellee.

Ted J. Hollembak of Steerman, Greiner & Roach, Chartered, Emporia, argued the cause and was on the brief for appellant.

FOTH, Commissioner:

Frank Coburn was convicted by a jury of felony theft and has appealed. He raises what are essentially two issues, one relating to our speedy trial statute, the other going to the substance of the crime of theft as reflected in the instructions and proof.

Prior to his resignation in March, 1973, Coburn was the sheriff of Lyon county. When he left office he took with him two pistols which had come into his possession during his tenure as sheriff under circumstances to be discussed later.

On May 7, 1973, a grand jury indicted him for the theft of the two pistols in the follow language:

'The Grand Jury charges that on or about March 1, 1973, in Lyon County, Frank Coburn did, unlawfully and feloniously, with intent to deprive the owner permanently of the possession, use or benefit thereof, obtain and exert unauthorized control over one (1) .38 cal. Colt Revolver, serial no. 553-202, and one (1) .25 cal. Wischo K G Automatic, serial no. 98-779, the same being lawfully in the custody of the Lyon County Sheriffs office, in violation of K.S.A. 1972 Supp. 21-3701(a).'

On May 29, 1973, he was arraigned on the charge and pleaded no guilty. Defendant was at all times free on bond. Trial was set for October 25, 1973. On the latter date the trial court considered its calendar and concluded that bacause of other cases pending for trial it did not have sufficient time to commence trial within 180 days of arraignment. It therefore ordered the case continued for 47 days, to December 11, 1973.

Defendant did not agree to the order of continuance and on November 30, 1973, moved for discharge on the grounds that the 180 day period prescribed by K.S.A 22-3402(2) had expired.

The motion was overruled, the case went to trial beginning December 11, 1973, the date set, and resulted in a verdict of guilty as charged. This appeal followed.

Appellant's speedy trial argument is essentially this: subsection (2) of K.S.A. 22-3402 required his discharge unless he was brought to trial within 180 days of arraignment, 'or a continuance shall be ordered by the court under subsection (3).'

Subsection (3) provides that the time for trial may be extended beyond the limitation otherwise applicable for any of several reasons, including:

'(d) Because of other cases pending for trial, the court does not have sufficient time to commence the trial of the case within the time fixed for trial by this section. Not more than one continuance of not more than thirty days may be ordered upon this ground.' (Emphasis added.)

Appellant points to the last sentence of (d) and says that, although only one continuance on this ground was ordered, because the continuance was for more than 30 days he was entitled to be discharged.

The state counters by pointing out that trial was begun on the 196th day after arraignment, well within 30 days from the statute's normal 180 day limit. It contends that the underlying purpose of subparagraph (d) was to place a 210 day outer limit on continuances granted because of the condition of the court's calendar, and that this purpose was more than fulfilled in the instant case.

We agree with the state. We have recognized that the statute represents a legislative effort to implement the speedy trial provisions of our constitutions. State v. Davis, 209 Kan. 225, 495 P.2d 965. Rather than rely on the 'balancing' tests employed in the absence of a statute (cf. State v. Otero, 210 Kan. 530, 502 P.2d 763), the legislature has imposed strict standars which this court has not hesitated to enforce. E.g., State v. Cox, 215 Kan. 803, 528 P.2d 1226; State v. Sanders, 209 Kan. 231, 495 P.2d 1023. The statute, however, like any other statute, must be given a construction which is reasonable and which will carry out the legislative purpose without working an injustice to either the defendant or the state. (Cf. Willmeth v. Harris, 195 Kan. 322, 403 P.2d 973.)

The basic question underlying this issue is the extent to which the statute was intended to govern the trial court's control of its docket. It seems apparent that within the outer limits prescribed no control was intended; by its terms, the statute has no applicability to trial settings or continuances granted within (in case of a defendant on bond) 180 days of arraignment. Until that date is reached the defendant has no speedy trial issue to raise under either our statute, or under the state or federal constitutions. Unless a continuance infringes upon the legislative limit it may be ordered as required by the exigencies of the trial court's docket; no limitation is applicable until the statutory limit is reached regardless of the reason assigned for the continuance. Thus, for example, if a trial court on the 30th day orders a 60 day continuance because of a crowded docket, the defendant has no cause to complain that the time exceeded 30 days.

Once the limit approaches, however, the trial court is faced with different problems. If the nearest practicable trial date is over the limit, the trial court is faced with two choices. It may fix a trial date within the statutory time limit, knowing the case cannot be then tried. Such an order, as pointed out above, regardless of the length of the continuance, does not call the statute into play. But when the date fixed arrives another continuance must be ordered, as the court well knew all along; so long as the second continuance does not exceed thirty days even the literal terms of the statute are not breached. In the alternative a trial court can do as the trial court did here and fix a realistic trial date more than 30 days from the date of the order, but within thirty days of the statutory limit. Either way the ultimate trial date is the same, and is known to the trial court at the time of the original trial date.

In this case, then, under the first alternative the court on October 25, 1973, could have ordered a thirty-one day continuance to November 25, 1973, the 180th day; the defendant would have had no cause to complain that the continuance was for more than 30 days. It could then have ordered an additional 16 day continuance to December 11, 1973, the actual trial date, and been within the literal terms of the statute. Again the defendant would have had no cause to complain. Instead, the trial court followed the second alternative and made but one order, on October 25, fixing the December 11th date at the outset. It thereby did directly what it clearly could have done indirectly. To say that the direct approach deprived the defendant of his right to a speedy trial, while the indirect approach would not, seems a prime example of exalting form over substance. Under such reasoning a 30 day continuance on the 180th day is proper, but a 31 day continuance on the 179th is not, although the result is obviously the same. We cannot accept such a construction of the statute.

As we see it the statute was designed to accommodate the conflicting demands of speedy justice and crowded court calendars. A specific time limit to begin the trial is fixed, but one continuance caused by calendar congestion is permitted, of up to 30 days beyond the limit. We therefore construe the phrase 'not more than thirty days' in K.S.A. 22-3402(3)(d) to mean 'to a date not more than thirty days after the limit otherwise applicable.'

In this case the continuance was to a date 16 days after the applicable 180 day limit. The trial was therefore timely under the statute as we construe it, and the defendant was not entitled to be discharged.

Appellant's substantive issues deal with 'ownership' as an element of theft. He asserts that the instructions did not require the state to prove who the 'owner' of each pistol was, and that the evidence did not show that his control over the pistols was not authorized by the respective owners. The issues were raised below by objections to the instructions and by a motion for directed verdict.

The key to appellant's argument lies in the manner in which the pistols came into his possession. The .38 Colt was found in a car occupied by two suspects arrested by appellant when he was sheriff. At that time both disclaimed ownership. Later they were released, and were told they would not be charged with unlawful possession of the pistol although, as felons, they were subject to such a...