State v. Hart

• Decision Date: 09 December 1967
• Docket Number: No. 44887,44887
• Citation: 200 Kan. 153,434 P.2d 999
• Parties: The STATE of Kansas, Appellee, v. David Walter HART, Appellant.
• Court: Kansas Supreme Court

Page 999

434 P.2d 999

200 Kan. 153

The STATE of Kansas, Appellee, v. David Walter HART, Appellant.

No. 44887.

Supreme Court of Kansas.

Dec. 9, 1967.

Rehearing Denied Jan. 5, 1968.

Syllabus by the Court

1. When an act is prohibited and made punishable by statute alone, the statute is to be construed in the light of the common law, and the existence of a criminal intent is to be regarded as essential even though the terms of the statute do not require it, unless it clearly appears the legislature intended to make the act criminal without regard to the intent with which it was done.

2. K.S.A. 21-2437 is construed as requiring, on the part of one who has possession of any instrument or other mechanical devices designed or commonly used for breaking into any vault, safe, railroad car, boat, vessel, warehouse, store, ship, office, or dwelling house, an intent to employ such instrument or devices in burglarious activities.

3. The intent required to constitute a violation of K.S.A. 21-2437 is not to use the proscribed tools or instruments in a particular burglary but a general purpose to employ the same in burglarious enterprises.

4. A criminal statute will not be held void for uncertainty if any reasonable and practical construction can be given its language.

5. Where the wording of a statute conveys a sufficiently definite warning as to the conduct prohibited, when measured by common understanding and practice, the statute may not be said to be void as vague and indefinite.

6. As construed in this opinion, K.S.A. 21-2437 is not invalid as being uncertain and vague or as being otherwise unconstitutional.

7. It is not necessary that an instrument be particularly designed or constructed for the purpose of breaking into buildings, safes, etc. for it to come within the ban of K.S.A. 21-2437; it is sufficient if it be commonly used for such a purpose and if it is possessed with that purpose in mind.

8. The possession of tools or instruments designed or commonly used in the commission of burglaries may be joint as well as individual, and where two or more persons have the power of control over the use of such tools or instruments and have the intent to control and use them jointly, all of them will be criminally liable under the statute.

9. The owership of burglary tools or instruments is not a requisite of the offense demounced by K.S.A. 21-2437.

10. It is essential to the validity of a search warrant that the issuing magistrate be provided with sufficient facts to enable him to make an intelligent and independent judgment that probable cause for its issuance exists; bald conclusions or mere affirmations of belief or suspicion are not enough.

11. While an affidavit may be based on hearsay, there must be adequate affirmative allegation of the affiant's personal knowledge of facts or of his informant's reliability, or as to the informant's personal knowledge of the information provided, to provide a rational basis upon which the issuing magistrate can make a judicious finding of probable cause.

12. Proof of intent to use, for burglarious purposes, tools which are commonly employed in committing burglaries may be inferred from the circumstances which attend their possession, such as prior burglary convictions, concealment of the tools on one's person or in his clothing, resistance to arrest, and possession of other items not suitable for breaking but which might be generally useful to one engaging in burglarious pursuits.

13. The record is examined in a criminal action charging the defendant with a violation of K.S.A. 21-2437 and for reasons appearing in the opinion it is held: 1. Intent is an element of the offense described in this statute. 2. The statute is not void for any of the reasons urged. 3. The arrest of the defendant was not illegal, nor Russell Shultz, Wichita, argued the cause, and Larry Kirby, Wichita, and William J. Walsh, Concordia, were with him on the brief for appellant.

was the search conducted incidental thereto. 4. The warrant issued for the search of defendant's car was valid. 5. The verdict was supported by substantial competent evidence. 6. No error has been made to appear and the conviction should be affirmed.

Kenneth E. Peery, County Atty., argued the cause, and Robert C. Londerholm, Atty. Gen., was with him on the brief for appellee.

FONTRON, Justice.

The defendant, David Walter Hart, was convicted of possessing burglary tools, in violation of K.S.A. 21-2437, and he has appealed. For convenience, the parties will be referred to, respectively, as plaintiff or state, and defendant or Hart.

In summary, the state's evidence showed that on the morning of February 12, 1966, two peace officers saw the defendant and two male companions walking in a southwesterly direction across the driveway of a filling station located at the intersection of Seventh and Lincoln Streets, in Concordia, Kansas. The defendant was observed to be keeping his left hand in the pocket of the topcoat he was wearing and holding his right hand underneath the coat in the area of his left shoulder.

The two officers watched the trio as they proceeded west a short distance on Seventh Street, where the defendant turned north and walked up a driveway between two houses. On rejoining his companions a few moments later, the officers observed that Hart was carrying his arms normally at his sides. As the three men continued west, the officers drove to the driveway where Hart had turned, at which place officer Alkire got out of the car and walked about fifty feet up the driveway where he found a new sledge hammer lying in the bushes between the two houses.

Upon finding the hammer the officers drove after the men, overtaking and stopping them a block or so away. On being asked for identification, the defendant produced a Montana draft card, another man showed a Montana driver's license, while the third had no identification, but said his name was Jerry Jordan, which was later found to be false, and that he worked on a ranch near Strong City. At this time trooper Shepherd saw a tool of some kind with green handles protruding from Jordan's pocket. The men disclaimed knowledge of the sledge hammer, refused to answer questions about it, and kept asking if the officers had a warrant.

When asked to accompany the officers to the police station to talk about the hammer, the men refused and jerked away when the officers started to take hold of their arms. The three were then placed under arrest and taken to the station where they were found to have some $1500.00 in currency, including six or seven $100.00 bills with consecutive serial numbers, plus a pair of tin snips or metal cutters which were in the pocket of the jacket worn by Jordan-or Jerrell, as his name turned out to be.

Later that day a car bearing Montana tags and belonging to Hart was found in the parking lot of Boogaart's Super Market, which had been visited that morning by three strangers, one being identified as the defendant. The strangers had separated after entering the store, stayed about five minutes, and then left together without making any purchases.

In the afternoon, after phoning Montana officers, the sheriff secured a search warrant for the defendant's car. The search turned up a motley collection of articles, including crowbars, flashlights, gloves, two walkie talkie radios with obliterated serial numbers, assorted pliers and screwdrivers, a gas can and spout, a canvas bag, rifle and shotgun shells, a high speed hacksaw blade, an artisan punch, a chisel, a lockpick, prying tools, a briefcase containing a money sack with $329.49 in loose change, $178.00 in currency loose in an armrest, a probe or feeler gauge, assorted hats, jackets, etc.

The defendant first contends that K.S.A. 21-2437 is unconstitutional as being unreasonably vague and indefinite. The statute reads:

'That any person who makes, mends, designs, or sets up, or who knowingly has in his custody or concealed about his person, any instrument or any other mechanical devices whatsoever, nitroglycerine or other explosive, designed or commonly used for breaking into any vault, safe, railroad car, boat, vessel, warehouse, store, shop, office, dwelling house, or door, shutter or window of a dwelling of any kind, shall be guilty of a felony, and upon conviction thereof shall be punished by imprisonment in the penitentiary for not less than one year nor more than three years.'

Although the statute was enacted in 1907, this is its first appearance before this court. The obvious purpose of this enactment is to minimize the incidence of burglaries. To such end, many states, including Kansas, have enacted laws prohibiting the making, mending, possession, etc., of so-called burglary tools. The several statutes, while designed to achieve the same goal, are found to differ, in some respects, as to their contents. By far the greater proportion of those we have researched specifically include, as an element of the crime, an intent that the tools be used for burglarious purposes.

While the Kansas statute omits specific reference to intent, we nonetheless believe that, when properly construed, K.S.A. 21-2437 requires an intent on the part of one having burglary tools in his possession, to employ those tools in burglarious activities. A leading case on this point is State v. Hefflin, 338 Mo. 236, 89 S.W.2d 938, 103 A.L.R. 1301, in which the defendant was charged with the possession of certain burglary tools under a statute which, much like ours, did not expressly require a criminal intent to use the tools burglariously. The court, in holding the Missouri statute to mean that the possession of tools referred to therein must be made, mended, possessed, etc., with the general intent they be used for burglarious purposes, said, on p. 249, 89 S. W.2d on p. 946:

'Ordinarily, when an act is made criminal by statute, the existence of a criminal intent is to be regarded as essential, even when not in...