State v. Ireton

• Decision Date: 06 June 1964
• Docket Number: No. 43662,43662
• Citation: 392 P.2d 883,193 Kan. 206
• Parties: The STATE of Kansas, Appellee, v. Phillip Dean IRETON, Appellant.
• Court: Kansas Supreme Court

Page 883

392 P.2d 883

193 Kan. 206

The STATE of Kansas, Appellee, v. Phillip Dean IRETON, Appellant.

No. 43662.

Supreme Court of Kansas.

June 6, 1964.

Rehearing Denied July 14, 1964.

Syllabus by the Court

In a prosecution of a defendant for the crime of grand larceny of three guns having a value of over $50.00 under G.S.1961 Supp., 21-533, where the jury's verdict was for conviction and the trial court pronounced sentence under G.S.1949, 21-534 and the habitual criminal act (G.S.1949, 21-107a), the record is examined and, as more fully reflected in the opinion, it is held, the trial court did not err in any of the particulars complained of by defendant, and defendant has totally failed to make it affirmatively appear his substantial rights were prejudiced by the rulings of the trial court.

Herbert L. Lodge, Olathe, argued the cause, and was on the briefs for the appellant.

Hugh H. Kreamer, County Atty., argued the cause, and William M. Ferguson, Atty. Gen., was with him on the briefs for the appellee.

ROBB, Justice:

This appeal by defendant in a criminal prosecution wherein defendant was charged, tried, convicted and sentenced as provided under G.S.1949, 21-534 and the habitual criminal act (G.S.1949, 21-107a) to serve not less than forty nor more than sixty years for the commission of the crime of grand larceny in violation of G.S.1961 Supp. 21-533, is from the trial court's orders (1) overruling defendant's demurrer to plaintiff's evidence and motion for directed verdict of not guilty at the close of the state's evidence (2) overruling defendant's demurrer and motion for directed verdict of not guilty at the conclusion of all the evidence (3) overruling a motion for new trial, approving the verdict, admitting and considering previous felony convictions justifying the sentence under the habitual criminal act and (4) from the trial court's judgment and sentence.

Briefly, the information charged that on July 7, 1962, in Johnson county, Kansas, defendant unlawfully, willfully and feloniously stole, took and carried away Dale E. Howard's .20 gauge Mossberg shotgun, his .22 caliber Mossberg rifle, and his .22 caliber revolver of the value of more than $50.00.

In substance, the testimony of the three witnesses for the state was that Dale E. Howard, lived at 6320 West 82nd Terrace, Overland Park, Johnson county, and defendant had lived in the Howard home as a member of the family for six months prior to July 7, 1962; on that date other members of the family had gone to Osceola, Missouri, and defendant was the only one left in the home; the guns described above were in the home on that date, but on July 8, 1962, when Howard returned to his home, he found the guns were missing and he so informed the sheriff's office of Johnson county; Howard had previously given defendant limited permission to take the guns from the home to hunt and for target practice, but he had not given defendant permission to take the guns while he was alone in the home, or to take them to Russell, Kansas, as defendant had done; Howard reported the guns to the sheriff as missing, not stolen, because he did not want to prosecute defendant for stealing, but he did want to protect himself since he had heard defendant had become involved in a jail 'break-out' at Russell; Howard was the only witness to testify the guns were valued at $50.00 or more; he stated their value was well over $50.00 when he purchased them and now; he had told the sheriff the valuation he placed on them was $90.00 or better; he would not take $50.00 or $90.00 for them now; his brother had once traded or sold the pistol for $20.00.

On cross-examination Howard answered questions to the effect that he had 'no comprehension' of the present day market value of the guns, that he did not know they were worth more than $50.00.

Milton Galyardt, sheriff of Russell county, testified that on July 8, 1962, when defendant was in the sheriff's in Russell, he had seen defendant with Howard's revolver 'stuck in his trousers;' this was after he had seen Marshall Morton Burke carrying Howard's shotgun from the Mercury automobile driven by defendant to the office; the sheriff had taken Howard's rifle therefrom also and all three guns were in the sheriff's possession until the day of trial. On July 10, 1962, defendant gave the sheriff a voluntary statement in the presence of Harold Bunker, chief of police of Russell, and voluntarily signed the statement after it was read back to him. This testimony was later corroborated by Bunker. The signed statement of defendant reflected the activities of Burke and defendant on the evening of July 7, 1962, before 8:00 p. m. when they placed the loaded guns in the car and left for Russell.

At this time the state rested its case and defendant attacked the state's evidence by demurrer on the grounds there was no sufficient, competent evidence to establish the $50.00 statutory value of the guns, that defendant had Howard's implied consent to take the guns and carry them out of the house, there was no evidence to establish felonious intent in so taking and carrying them from the home, there was no evidence to show or infer that such taking and carrying was done with any intent to deprive Howard of the guns, to sell, give, or throw them away, or to profit or gain by the taking or do anything else contrary to Howard's ownership thereof. The demurrer was overruled.

Defendant then called Mrs. Howard, wife of Dale E. Howard, as his only witness, who testified their twenty-one year old son, Danny, was a friend of defendant, that she did not desire the prosecution of defendant for taking the guns, and that he had taken the guns out of the house on past occasions for target practice. On cross-examination she testified defendant had 'gotten into some trouble,' was on parole, and could not go home, and thus was making his home with the Howards. She further testified that on this occasion defendant had taken the guns to Russell 'to break a boy out of jail.'

The trial court, over defendant's objection, gave instruction No. 10 in regard to the establishment of a prima facie case of larceny by showing possession of stolen property by a defendant a short time after the property had been stolen. A careful reading thereof convinces us defendant's contention the instruction did not correctly state the law applicable herein is without merit but since defendant did not set out in this record all the instructions given, we are precluded from reviewing any of them. (Neely v. St. Francis Hospital & School of Nursing, 188 Kan. 546, 550, 363 P.2d 438.)

Following the verdict of the jury finding defendant guilty as charged, defendant advised the court he would move for judgment notwithstanding the verdict. On November 12, 1962, he filed a formal motion for new trial, which was overruled by the trial court on November 21, 1962, when it approved the verdict. After judgment and sentence defendant perfected this timely appeal.

The first question presented by defendant involves the sufficiency and competency of the evidence to establish the felonious taking and carrying away of the Howard guns, having a value at the time of more than $50.00, with felonious intent to deprive the owner of the use thereof. If the jury saw fit to believe the testimony appearing in this record, which testimony was competent, it was ample to establish the elements of the crime of grand larceny. While the owner of the guns was the only one to testify as to the value thereof, this court has held such evidence to be competent (State v. Inverarity, 150 Kan. 160, syl. p1, 92 P.2d 45) and until the jury renders its verdict, the weight of the evidence is entirely within the province of the jury. If the verdict is approved by the trial court, then we as an appellate court have no power or authority to reverse the verdict unless it clearly appears that upon no hypothesis whatever was there sufficient substantial evidence to support the conclusions reached in the trial court. (State v. Stout, 175 Kan. 414, 417, 264 P.2d 1056; State v. Haught, 180 Kan. 96, 100, 299 P.2d 573; State v. Russell, 182 Kan. 649, 653, 323 P.2d 913; State v. Crosby, 182 Kan. 677, 324 P.2d 197, 76 A.L.R.2d 514.)

In spite of the former permission given defendant to take the three guns from the Howard home for hunting and target practice only while in the company of Danny Howard, in view of the facts and circumstances surrounding defendant's acts on the night in question and defendant's former record, felonious intent was almost required to be presumed by the jury as a consequence of defendant's voluntary and deliberate acts and deeds. Thus we believe both the jury and trial court were justified in finding that defendant feloniously took and carried away the guns with the further felonious intent of never returning them, thereby depriving the owner of their possession not only temporarily, the permanently. (State v. Cooper, 190 Kan. 101, 372 P.2d 289.)

Defendant cites authority which could lead to an opposite viewpoint but under this record we have no element of ownership or title in defendant, or evidence that he had any right to use the guns under the existing circumstances. In the light of all this and the fact that defendant was on parole, it may even be questioned whether defendant had any right to have firearms in his possession, but we do not deem it necessary to go into a discussion of that matter.

Defendant claims error because of the introduction of certain evidence, especially the cross-examination of Mrs. Howard, but since no timely objection to that was made, as well as no objection having been made to the closing argument of the state, we cannot on appellate...