State v. Emory

• Decision Date: 07 June 1924
• Docket Number: 25,428
• Citation: 116 Kan. 381,226 P. 754
• Parties: THE STATE OF KANSAS, Appellee, v. E. BRUCE EMORY, Appellant
• Court: Kansas Supreme Court

226 P. 754

116 Kan. 381

THE STATE OF KANSAS, Appellee, v. E. BRUCE EMORY, Appellant

No. 25,428

Supreme Court of Kansas

June 7, 1924

Decided January, 1924

Appeal from Cowley district court; OLIVER P. FULLER, judge.

Affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. CRIMINAL LAW--Information--Receiving Stolen Property--Charge Stated in Several Separate Counts. Rule followed that a single criminal offense may be stated in divers ways in several separate counts of an information, and no prejudicial error is necessarily involved therein, although the defendant may be convicted on two of such counts, where sentence and judgment is imposed on him for one count only.

2. SAME--Conspiracy--Evidence--Declarations of Coconspirators. Rule followed that where a conspiracy is so far proved as to make the fact a jury question, evidence of the declarations and acts of the coconspirators are admissible in evidence so far as they pertain to the furtherance of their common criminal design, its consummation, the disposition of its fruits, and its concealment.

3. SAME--Instruction--Possession of Recently Stolen Property. The evidential significance attaching to the possession of recently stolen property was correctly stated in the instructions.

4. SAME--When Evidence is Sufficient to Show Knowledge that Property Received Was Stolen. In a criminal prosecution for the felonious crime of receiving stolen property, it is not a prerequisite to the state's case that the fact be proved beyond a reasonable doubt that defendant had actual knowledge that the property received by him was stolen property. It was sufficient for the state to prove beyond a reasonable doubt that defendant "had a belief that the property was stolen property, or that the defendant at the time he purchased or received the same had a reasonable suspicion from all the circumstances known to him at the time that the property was stolen property, and after such knowledge or reasonable suspicion failed to use the circumspection usual with persons taking goods by private purchase."

5. SAME--Evidence of Deceased Witness and Evidence of Absent Witnesses May Be Read to Jury. The circumstances examined and no error discerned in reading to the jury the testimony of a witness, since deceased, given at a former trial, nor in reading to the jury the testimony of other witnesses absent from the jurisdiction or whose whereabouts were unknown.

6. SAME--Evidence that Absent Witness is Dead, Beyond Jurisdiction, or Cannot Be Found--Discretion of Trial Court. The sufficiency of the showing that an absent witness is dead, beyond the jurisdiction or cannot be found is addressed largely to the trial court's discretion, and unless that discretion is abused the supreme court will not interfere.

L. D. Moore, of Winfield, for the appellant.

C. B. Griffith, attorney-general, Donald W. Stewart, assistant attorney-general, C. H. Quier, county attorney, and S. M. Brewster, of Topeka, for the appellee.

OPINION

DAWSON, J.:

The defendant was prosecuted and convicted on two counts of the offense of receiving solen Liberty bonds, knowing them to have been stolen. He was sentenced on one count only.

The evidence for the state tended to show that defendant had received various lots of Liberty bonds which had been stolen in daylight robberies from the Bartlett State Bank, the Benton State Bank, and from the Farmers State Bank of Wheatland, Okla. The robbers and their confederates and paramours concerned in these crimes were ascertained. Defendant's intimacy with some of them by telephone and personal conversation was shown; he lied to a policeman who made inquiry about them; he went all the way to New York city to sell the stolen bonds, notwithstanding there was a market in Wichita and Kansas City, where the market price of bonds was the same as in New York less a negligible charge for registration and transportation, and he falsely represented to the bond buyers in New York that he was a bond broker and that his address was Wichita Falls, Tex.

Among the various errors which are assigned, defendant complains of the splitting of the offense charged against him into two counts. Under our practice a pleader may charge the same criminal offense in divers ways and in several counts of a single information so as to meet all anticipated contingencies of the evidence, and the fact that some respectable authorities in other jurisdictions, cited by defendant, hold otherwise is immaterial. (The State v. Wheeler, 95 Kan. 679, 680, 149 P. 701; The State v. Bell, 107 Kan. 707, 709, 193 P. 373.) Moreover, while defendant was convicted on two counts, and this might possibly have justified two sentences to run either concurrently or successively, he was subjected to but one sentence, which may have been less than he deserved, but which certainly presents nothing of which he can reasonably complain. (R. S. 62-1718; The State v. Ricksecker, 73 Kan. 495, 85 P. 547; The State v. Mall, 112 Kan. 63, 65, 209 P. 820.) In The State v. Yargus, 112 Kan. 450, 211 P. 121, where a defendant was convicted of murder in the second degree, when the state's evidence showed only a murder by the administration of poison, an offense constituting murder in the first degree under our crimes act, this court upheld the judgment, not only on precedent but on principle. It was there said:

"The weight of judicial opinion seems to favor the conclusion we have reached, but we base it not upon authority but upon the soundness of the principle that the defendant should not be allowed to derive an advantage from an error from which she suffered no injury, but, on the contrary, derived a benefit." (p. 454.)

In 16 C. J. 1106 it is said:

"As a general rule, where there is one good count sustained by the proof, a general verdict of guilty will be referred to and sustained by it, although there are other counts in the indictment which are defective or unsupported; but this rule does not apply where there is no defective count and distinct offenses are properly charged in different counts. Thus, where there are two or more counts in the indictment, and but one offense in fact is charged, a general verdict of guilty is good if one of the counts is good and the allegations in it are sustained by the evidence. It also has been held that a general verdict will be restricted so as to apply to a single count, and will be sufficient where it appears that the evidence in the case applies to that count alone, or where the court instructs the jury to disregard all but that count, or intentionally ignores and fails to instruct upon the other counts."

But without minimizing the general rule for which defendant contends--that a single offense cannot be split into separate parts and the offender prosecuted, convicted and subjected to separate sentences on each of the parts thus separated--it must be said that we have no such case here. The county attorney could not know what the exigencies of the trial would develop. The evidence might fail to prove that stolen bonds of the Bartlett State Bank came culpably into defendant's hands, so he prudently framed another count covering the receipt of the stolen bonds of the Benton bank. Nor could the county attorney be sure that the evidence would not disclose transactions so different in character and detail that the law would imperatively require prosecutions therefor in separate counts. The error assigned is not sustained. ( The State v. Dilgar, 111 Kan. 794, 797, 208 P. 620.)

Two specifications of error are based upon the admission of the evidence of coconspirators. Once the conspiracy is so far established as to make the ascertainment of the fact a jury question--and the order of proof is not necessarily important (Drysdale v. Wetz, 102 Kan. 680, 171 P 653)--evidence of the declarations and acts of the coconspirators are admissible so far as they pertain to the furtherance of the common criminal design, to its consummation, to the disposition of its fruits, and to acts done to preserve its concealment. (The State v. Johnson, 40 Kan. 266, 19 P. 749; The State v. Mullins, 95 Kan....