State v. Green, 57246
Decision Date | 05 April 1985 |
Docket Number | No. 57246,57246 |
Citation | 697 P.2d 1305,237 Kan. 146 |
Parties | STATE of Kansas, Appellant, v. Thomas Dean GREEN, Appellee. |
Court | Kansas Supreme Court |
Syllabus by the Court
1. The magistrate conducting a preliminary examination in a criminal case serves a limited function--to determine whether a crime has been committed and whether there is probable cause to believe that the accused committed it.
2. It is not necessary that evidence at a preliminary hearing upon which the defendant is held for trial should be sufficient to support a conviction. Probable cause to believe the defendant is guilty is all that is required.
3. "Probable cause" signifies evidence sufficient to cause a person of ordinary prudence and caution to conscientiously entertain a reasonable belief of the accused's guilt. State v. Huff, 235 Kan. 637, 681 P.2d 656 (1984).
4. K.S.A. 21-3205(1) provides a person is criminally responsible for a crime committed by another if he intentionally aids, abets, advises, hires, counsels or procures the other to commit the crime. Mere association with the principals who actually commit the crime or mere presence in the vicinity of the crime are themselves insufficient to establish guilt as an aider and abettor; however, when a person knowingly associates himself with the unlawful venture and participates in a way which indicates he willfully is furthering the success of the venture, such evidence of guilt is sufficient to go to the jury. Following State v. Burton, 235 Kan. 472, 477, 681 P.2d 646 (1984).
Mark Knight, Asst. Dist. Atty., argued the cause, and Robert T. Stephan, Atty. Gen., Jerry L. Harper, Dist. Atty., and Steve Hopkins, legal intern, were on the brief for the appellant.
Craig W. Huntley, of Hamilton, Huntley, & McRorey, of Olathe, argued the cause and was on the brief for the appellee.
This is an appeal by the prosecution from an order of the court dismissing the complaint and discharging the defendant at the close of the preliminary hearing. The defendant, Thomas Dean Green, was charged with one count of theft in violation of K.S.A. 21-3701.
The sole issue on appeal is whether the State presented sufficient evidence to have the defendant bound over for trial.
The facts disclosed at the preliminary examination, concisely stated, were as follows: Around midnight on the evening of January 24, 1984, the defendant and his two friends--Dwight Thuro and Jeff McDaniels--drove in Thuro's car from their home in Wellsville, Kansas, to Lawrence, Kansas, for the purpose of "just driving around." They drove by Turner Chevrolet once, and then went back and stopped there for the purpose of taking some new wheels and tires for Thuro's car. There was no clear evidence presented at the preliminary hearing that the defendant was involved in the decision to commit the theft. McDaniels testified that he thought Thuro and the defendant might have discussed the idea during the ride to Lawrence, but he was uncertain and admitted he couldn't hear much as he was sitting in the back seat. Thuro testified that he made the decision to stop at Turner's after driving by and seeing the new tires. He said nothing about discussing the idea on the way to Lawrence.
Upon arriving at Turner's, Thuro and McDaniels proceeded to remove the tires and wheels from a Chevrolet pickup truck. Meanwhile, the defendant took Thuro's car and left because he wanted nothing to do with the theft. Both Thuro and McDaniels testified that the defendant had nothing to do with taking the tires. The defendant later returned to pick up his companions. Thuro and McDaniels loaded the tires into the trunk of Thuro's car. McDaniels was unsure whether it was the defendant or Thuro who unlocked the trunk, but Thuro remembered unlocking it himself. The defendant did not help load the tires.
Later, after leaving the scene, the car was stopped for minor traffic violations at which time the tires were discovered. The tires were worth over $100 making the theft a Class D felony. See K.S.A. 21-3701. Thuro and McDaniels entered a diversion agreement with the state, pled guilty to the charges prior to Green's preliminary hearing.
At the close of the hearing, the court said:
....
"The Court finds that the State has presented insufficient evidence to show probable cause...."
The nature and purpose of the preliminary examination was set out in State v. Jones, 233 Kan. 170, 660 P.2d 965 (1983), and reiterated in State v. Huff, 235 Kan. 637, 639, 681 P.2d 656 (1984), as follows:
" " 233 Kan. at 172-73, 660 P.2d 965.
Additionally, in State v. Zimmerman & Schmidt, 233 Kan. 151, 158, 660 P.2d 960 (1983), we stated:
Probable cause was defined in State v. Huff, 235 Kan. at 640, 681 P.2d 656, quoting Coleman v. Burnett, 477 F.2d 1187, 1202 (D.C.Cir.1973), as:
" ...
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State v. Mitchell
...less than the quantum necessary to establish proof beyond a reasonable doubt at trial, as the defendant concedes. State v. Green, 237 Kan. 146, ----, 697 P.2d 1305, 1307 (1985); Myers v. Commonwealth, 363 Mass. 843, 850, 298 N.E.2d 819 (1973); State v. Dunn, 121 Wis.2d 389, 396, 359 N.W.2d ......
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State v. Hunter
...comparable to defendant's requested additional instruction. Defendant cites as authority for the instruction State v. Green, 237 Kan. 146, 697 P.2d 1305 (1985), and State v. Burton, 235 Kan. 472, 681 P.2d 646 (1984). Although both Green and Burton held that mere association with principals ......
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State v. Ninci, 74725
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