State v. Jakeway, 48309

• Decision Date: 11 December 1976
• Docket Number: No. 48309,48309
• Parties: STATE of Kansas, Appellee, v. Louis Herald JAKEWAY, Appellant.
• Court: Kansas Supreme Court

Page 113

558 P.2d 113

221 Kan. 142

STATE of Kansas, Appellee, v. Louis Herald JAKEWAY, Appellant.

No. 48309.

Supreme Court of Kansas.

Dec. 11, 1976.

Syllabus by the Court

1. The absence of a formal arraignment and plea of the defendant is effectively waived by the acts of the defendant in going to trial without objection and submitting the question of his guilt to the jury impaneled to try him, contesting every question in the case as fully as if there had been a formal arraignment, and not raising any objection as to the nonobservance of the formality until the verdict of the jury is returned.

2. One who seeks to challenge the legality of a search as a basis for suppressing relevant evidence must claim either to have a proprietary or possessory interest in the premises searched, or to have owned or possessed the seized property.

3. All searches without a valid warrant are unreasonable unless shown to be within one of the exceptions to the rule that a search must rest upon a valid search warrant.

4. One of the exceptions to the requirement of a search warrant is a search made with consent or waiver voluntarily, intelligently and knowingly given.

5. Where two persons jointly occupy living quarters, the consent of one of them may be sufficient to form the basis for a valid search.

6. The existence and voluntariness of a consent to search and seizure is a question of fact to be decided in light of attendant circumstances by the trier of facts and will not be overturned on appeal unless clearly erroneous.

7. Judicial notice may be taken of the value of the currency and coin issued by the United States Government and proof of its value is unnecessary.

8. The lack of positive identification of money as the same money alleged to have been stolen goes to its weight as evidence and not its admissibility.

9. The admissibility of physical evidence is a matter resting within the sound discretion of the trial court and is to be determined by the court on the basis of the relevancy of the evidence and its connection with the accused and the crime charged.

10. Whether a specific instance of juror conduct falling within the broad statutory grounds defined in K.S.A. 22-3423(c) requires a declaration of mistrial is a matter of discretion with the trial court.

J. Stephen Nyswonger, Garden City, argued the cause and was on the brief for appellant.

Donald J. Vsetecka, County Atty., argued the cause, and Curt T. Schneider, Atty. Gen., was with him on the brief for appellee.

FROMME, Justice:

Appellant, Louis Herald Jakeway, appeals from a conviction of felony theft (K.S.A. 21-3701). The theft consisted of taking a currency and coin collection, two rings and other items from the place of business of Lawrence Deaver in Garden City, Kansas. Appellant is the former son-in-law of Deaver. The facts in evidence will be developed as we consider the respective specifications of error raised by appellant Jakeway.

Appellant contends that his conviction should be reversed because he was not formally arraigned as required by K.S.A. 22-3205. When the appellant and his attorney appeared before the district court on April 15, 1975, the court was advised that a copy of the information had been delivered to appellant. However, appellant's attorney requested and was granted a continuance to prepare for argument on a motion to suppress evidence. The arraignment and the motion to suppress were set for May 30. Later, this setting was postponed to June 25, at the request of defendant's counsel. On that date the motion to suppress was heard and overruled and a jury trial date was set for August 18 and later continued to September 16. The appellant took part in the trial proceedings which began on that date and no objection was lodged because of the lack of formal arraignment until after the verdict was entered. Apparently arraignment had been overlooked by the county attorney and the trial court proceeded with the trial as if a plea of not guilty had been formally entered.

The absence of a formal arraignment and plea of the defendant is effectively waived by the acts of the defendant in going to trial without objection and submitting the question of his guilt to the jury impaneled to try him, contesting every question in the case as fully as if there had been a formal arraignment, and not raising any objection as to the nonobservance of the formality until the verdict of the jury is returned. (State v. Trams, 189 Kan. 393, Syl. 3, 369 P.2d 223; In re Bundy, 144 Kan. 64, 58 P.2d 80; State v. Cruse, 112 Kan. 486, 212 P. 81; State v. Stitz, 111 Kan. 275, 206 P. 910.) The requirement of arraignment and plea was effectively waived by appellant in this case.

Appellant challenges the order of the trial court overruling the motion to suppress allegedly illegally seized evidence. Because of the different circumstances giving rise to this claim we must consider the question of the admissibility of certain keys separately from the question of the admissibility of a box and its contents. We first consider the admissibility of the box and its contents.

A warrant for the arrest of appellant had been issued on an entirely separate and distinct charge which concerned a burglary of the Pappas Concrete Company. The Finney county officers proceeded to the mobile home of a Mr. Palacio, where appellant had been staying, but appellant was not there. They did talk to both Mr. Palacio and to a Mr. Besel at that time. Both were advised of the purpose of the official visit. Later that evening Mr. Besel called the officers and they returned to the mobile home of Mr. Besel, which was next door to Mr. Palacio's mobile home. Mr. Besel gave the officers a steel box which he said had been given to him by Mr. Jakeway for safekeeping. Mr. Besel stated he did not know what was in the box but he had kept it in his mobile home.

The officers noted the box was locked and they remembered seeing a ring of keys in one of the rooms in the mobile home of Mr. Palacio. On previous inquiry they had learned the room was being used by Mr. Jakeway. At the request of the officers, Mr. Palacio let them into his mobile home and the officers obtained the keys which opened the box. The box contained a pistol, 24 $1.00 bills, 15 $2.00 bills, 2 $5.00 bills, a $10.00 bill, a coin collection, two rings and other items. The currency, coin collection and the rings were later identified by Lawrence Deaver as belonging to him and his wife and were the basis for the felony theft charge presently before this court.

During the trial Jakeway testified that he had never previously seen either the box or the contents, that he had not given them to Besel for safekeeping and that he had never owned or possessed them.

One who seeks to challenge the legality of a search as a basis for suppressing relevant evidence must claim either to have a proprietary or possessory interest in the premises searched, or to have owned or possessed the seized property. (State v. Boster, 217 Kan. 618, 539 P.2d 294; State v. Sumner, 210 Kan. 802, 504 P.2d 239; Brown v. United States, 411 U.S. 223, 93 S.Ct. 1565, 36 L.Ed.2d 208.)

The box and its contents were in the possession of Mr. Besel prior to the time they were delivered to the police. No premises were searched to obtain this property and Jakeway denied that he owned or possessed the seized property. Therefore it is clear that Jakeway was not the victim of an invasion of privacy when the police obtained the box and its contents and he had no standing to challenge the admissibility of this evidence. The trial court properly overruled the motion to suppress these items.

We now direct our attention to the keys. Appellant denied owning or possessing these keys yet they were obtained by the police inside Mr. Palacio's mobile home from a night stand in a room being used by appellant. He did have a proprietary or possessory interest in the room from which the keys were taken.

At the outset it should be noted that only unreasonable searches and seizures are prohibited but unreasonableness cannot be stated in rigid and absolute terms. (Harris v. United States, 331 U.S. 145, 67 S.Ct. 1098, 91 L.Ed. 1399; State v. Boyle, 207 Kan. 833, Syl. 3, 486 P.2d 849.) All searches without a valid warrant are unreasonable unless shown to be within one of the exceptions to the rule that a search must rest upon a valid search warrant. (Stoner v. California, 376 U.S. 483, 84 S.Ct. 889, 11 L.Ed.2d 856, reh. den. 377 U.S. 940, 84 S.Ct. 1330, 12 L.Ed.2d 303.) One of the exceptions to the requirement of a search warrant is a search made with consent or waiver voluntarily, intelligently and knowingly given. (State v. Boyle, supra; see also Anno:, Search and Seizure-Consent, 31 A.L.R.2d, § 3, p. 1081.)

Where two persons jointly occupy living quarters, the consent of one of them may be sufficient to form the basis for a valid search. (State v. Boyle, supra; White v. United States, 444 F.2d 724 (10th Cir. 1971).)

In State v. Boyd, 206 Kan. 597, 481 P.2d 1015, cert. den. 405 U.S. 927, 92 S.Ct. 977, 30 L.Ed.2d 800, McCarty and Boyd occupied living quarters above a Topeka tavern. McCarty gave his consent to search the premises. It is held McCarty's consent was sufficient to form the basis for a valid search.

In State v. Stein, 203 Kan. 638, 456 P.2d 1, cert. den. 397 U.S. 947, 90 S.Ct. 966, 25 L.Ed.2d 128, we hold a high school principal having custody and control of school lockers and having access thereto, and possessing a master list of all lock combinations and a key which will open every locker, is empowered to open and search the same for contraband upon the request of officers.

Now let us turn to the facts of the present case. Mr. Palacio was the owner and lived in the mobile home from which the keys were taken. The record does not indicate that he was in the business of renting rooms in his mobile home. Mr. Palacio and Mr. Jakeway were mutual friends and acquaintances. Mr....