State v. Goodman, 46100

• Decision Date: 10 April 1971
• Docket Number: No. 46100,46100
• Citation: 483 P.2d 1040,207 Kan. 155
• Parties: STATE of Kansas, Appellee, v. Michael Lynn GOODMAN, Appellant.
• Court: Kansas Supreme Court

Page 1040

483 P.2d 1040

207 Kan. 155

STATE of Kansas, Appellee, v. Michael Lynn GOODMAN, Appellant.

No. 46100.

Supreme Court of Kansas.

April 10, 1971.

Syllabus by the Court

1. In a criminal action tried before the advent of the new rules of criminal procedure, wherein the defendant was charged with second degree burglary and grand larceny

pursuant to K.S.A. 21-520 and 21-524, as authorized by K.S.A. 62-1016, for counseling, aiding and abetting in the commission of such offenses, the defendant was tried before a jury, convicted and sentenced. On appeal the record is examined and it is held: (a) There was substantial competent evidence presented in the record from which the jury could find that the defendant counseled, aided and abetted in the commission of the crimes; (b) the trial court did not err in excluding from the evidence a deposition given by a witness confined in the state penitentiary; (c) the trial court properly quashed the notice and subpoena issued to take the deposition testimony of two state witnesses; and (d) the trial court did not err in the instructions given to the jury; all as more particularly stated in the opinion.

2. The limited functions of an appellate court, where the sufficiency of the evidence to support a conviction is being reviewed, are stated in the opinion and applied.

James D. Howell, Jr., Overland Park, argued the cause, and James V. Horn, Kansas City, Mo., was with him on the brief for appellant.

Edward G. Collister, Jr., Asst. Atty. Gen., argued the cause, and Kent Frizzell, Atty. Gen., James W. Bouska, County Atty., and P. Stephen Martin, Asst. County Atty., were with him on the brief for appellee.

SCHROEDER, Justice.

This is an appeal in a criminal action prior to the advent of the new rules of criminal procedure wherein the appellant was charged with second degree burglary and grand larceny (K.S.A. 21-520 and 21-524) as authorized by K.S.A. 62-1016, for counseling, aiding and abetting in the commission of such offenses. He was tried before a jury and found guilty. At the motion for a new trial the court set aside the appellant's conviction for possession of burglary tools for which he was also tried.

The appellant specifies as errors the sufficiency of the evidence to support the conviction, the refusal to admit deposition testimony, the quashing of notice and subpoena issued to take depositions, and instructions given to the jury.

Prior to the trial the parties entered into a signed written stipulation which was submitted to the jury as instruction No. 2. It reads:

'LADIES AND GENTLEMEN OF THE JURY, in the ordinary criminal proceeding there are necessarily two things that the plaintiff, State of Kansas, must prove. First, the State must prove that the crimes which they have charged were in fact committed. Secondly, the State must prove beyond a reasonable doubt that the defendant was the actual perpetrator of the crimes of that he counseled, aided or abetted those who were the principal perpetrators of the crimes.

'In this particular case, the defendant, Michael Lynn Goodman, and his attorneys, are admitting that the crimes charged did in fact take place. That is, the defendant admits that on or about the 16th day of February, 1969, in Johnson County, Kansas, certain parties did then and there unlawfully, willfully, feloniously and burglariously break into and enter, in the night-time, the Perrin's Jewelry Shop, said shop being within a building owned by Mrs. W. D. Fleming, with intent to commit a larceny, and in which shop there was at the time valuable things kept and deposited, and they did then and there unlawfully, willfully and feloniously steal, take and carry away three sample cases of diamonds and other valuable gems worth and of the value of approximately $25,000 in United States money, and said property being the property of another, to-wit: Ed Cain and Company, and said value being in excess of $50, contrary to the form of the statutes in such case made and provided and against the peace and dignity of the State of Kansas. Furthermore, the defendant and his attorneys admit that on the same date, certain parties did then and there unlawfully, willfully and feloniously have in their possession certain burglary instruments that are commonly used for breaking into stores, warehouses and dwelling houses, said burglary instruments consisting of the following: one number 10 sledge hammer, two screwdrivers, one hatchet, two pry bars, one pinch bar and one set of walkie-talkies, with an intent to employ said instruments in burglarious activity, contrary to the form of the statutes in such case made and provided, and against the peace and dignity of the State of Kansas. The crimes which you have just had described to you consist of second degree burglary, grand larceny and the felonious possession of burglary tools. These are three separate and distinct felony charges.

'Again, and to be perfectly clear, the defendant is conceding that those crimes did in fact take place. On the other hand, the defendant does not admit his participation in those crimes, and he has entered his plea of not guilty to said crimes. The practical effect of the defendant's stipulation that the crimes did in fact take place means that the plaintiff, State of Kansas, will not have to present evidence to you and the Court bearing on whether or not the crimes actually happened.

'Therefore, you are instructed as a matter of law that the crimes charged in the Information did in fact occur as alleged in said Information. Moreover, you will take as true the following facts:

'On the evening of February 16, 1969, a Sunday night, a man named Joseph Sprofera climbed to the top of a one-story building located in the 7300 block of West 80th Street in Overland Park, Kansas. Sprofera had with him the tools described to you earlier. After reaching the roof of the one-story building, Sprofera approached a window on a two-story building which was immediately adjacent to the roof of the one-story building. The two-story building described is owned by Mrs. W. D. Fleming. Sprofera opened said window and entered into the two-story building. The room which he entered was an office leased by the Johnson County Democratic Party. Sprofera then tore loose the flooring and created a hole large enough for a man to pass through to the store directly below the office space leased by the Democratic Party. Sprofera lowered himself through said hole and entered into the store right below him which is known as Bea's Sample Shop. From that point, Sprofera approached the west wall of Bea's Sample Shop. Sprofera proceeded to remove some wood paneling to the wall, and then broke open a large hole through that wall to the next adjoining shop which was Perrin's Jewelry Store. Sprofera proceeded through that hole and did emerge into Perrin's Jewelry Store. Sprofera then proceeded to a part of the store where three jewelry cases were being kept. These jewelry cases were the property of Ed Cain and Company of Chicago, Illinois. The rightful possessor of these cases was one William Merkel, a salesman for Ed Cain and Company. The cases were full of diamond rings and other gems. The cases were used by salesman Merkel to demonstrate to potential buyers the jewelry line of Ed Cain and Company. However, on week-ends, Merkel stored these cases at Mr. Perrin's jewelry store. The market value of the jewelry was $25,000. Sprofera stole the three jewelry cases and departed from the store through a back door which to an alley. Sprofera was met in the alley by one William Kirkpatrick who picked up Sprofera in a 1968 Chevrolet automobile. The two men then proceeded in the car a short distance when they were apprehended by agents of the Federal Bureau of Investigation and Overland Park police officers. Both men are now serving penitentiary sentences for their participation in these crimes.

'Therefore, the sole issue to be determined by you is whether or not this defendant, Michael Lynn Goodman, was guilty of counseling, aiding, or abetting those other parties who were the actual perpetrators of the crime. You must remember that the defendant is presumed innocent until proven guilty beyond a reasonable doubt.'

Michael Lynn Goodman (defendant-appellant) seriously contended at the trial that he was implicated by Allen Perrin, the owner of Perrin's Jewelry Shop, 'however, not for any part in this crime, but from the vengeance of Perrin, who had been cheated by Goodman.'

The state's evidence discloses that Allen Perrin (hereafter Perrin) was by occupation the owner of a retail Jewelry store which he ran in Overland Park, Kansas. In November, 1968, the appellant became an acquaintance of Perrin. He offered to sell Perrin some jewelry but Perrin being suspicious called the F.B.I. Perrin did, however, from time to time buy jewelry and gems from Goodman.

On one of his visits to the store, the appellant presented a scheme to Perrin where by the appellant's 'boys' would steal the jewelry line of a salesman, William Merkel. Merkel stored his jewelry line in Perrin's store on weekends. Perrin pretended to go along with the idea but informed the F.B.I. of all developments. Perrin's communication to the F.B.I. was with an agent named Yates Webb.

In the development of the plan Sprofera was brought to the store by the appellant during a Christmas Eve party given by Perrin at the jewelry store in 1968. At that time Sprofera 'looked over the store.' Thereafter, the appellant introduced one Kirkpatrick to Perrin at a luncheon meeting. At such meeting further details were discussed by those parties. Perrin testified:

'Q. Mr. Perrin, as a way of getting into this, I will ask you if you had any advance knowledge that these crimes were going to take place on February 16th? That is did you have any knowledge they might take place before they actually happened?

'A. Yes, sir.

'Q. All right. Did your acquaintanceship with any of these three...