State v. Kearns

• Decision Date: 20 January 1973
• Docket Number: No. 46655,46655
• Citation: 211 Kan. 158,505 P.2d 676
• Parties: STATE of Kansas, Appellee, v. John M. KEARNS, Appellant.
• Court: Kansas Supreme Court

Page 676

505 P.2d 676

211 Kan. 158

STATE of Kansas, Appellee, v. John M. KEARNS, Appellant.

No. 46655.

Supreme Court of Kansas.

Jan. 20, 1973.

Rehearing Denied March 7, 1973.

Syllabus by the Court

1. When a jury might reasonably conclude that the theft of several items of property did not result from a single continuing criminal impulse or intent and the value of each of said items is not sufficient to sustain a conviction of grand larceny, an instruction on petty larceny should be given. (Following State v. Roberts, 210 Kan. 786, 504 P.2d 242, Syl. 5.)

2. In appropriate circumstances an officer who lacks probable cause to make an arrest may nevertheless stop a suspicious individual briefly to determine his identity or to maintain the status quo momentarily while obtaining more information.

3. Where an officer observes merchandise in an automobile in plain view and his further investigation reveals probable cause to believe it is stolen, his subsequent seizure of the merchandise is not constitutionally unreasonable.

4. The fact that a witness may have inadvertently observed the defendant at the police station within a few hours of his arrest does not render inadmissible an independent in-court identification based primarily on the witness's observations at the scene of the crime.

5. Proof that stolen merchandise belonged to 'Robert' Zimmerman when the information alleged it belonged to 'Bob' Zimmerman is not such a material variance as to invalidate a conviction where it is clear that both proof and pleading referred to the same person.

6. Even if the magistrate had insufficient evidence before him to find probable cause at the time he issued an arrest warrant, a defendant who has thereafter been properly bound over for trial is subject to the jurisdiction of the district court and is not entitled to be discharged because of any deficiencies in the complaint or warrant.

John C. Humpage, of Humpage & Stewart, Topeka, argued the cause, and was on the brief for appellant.

John Mike, Elwell, County Atty., argued the cause, and Vern Miller, Atty. Gen., and Jerry L. Donnelly, Asst. County Atty., were with him on the brief for appellee.

FOTH, Commissioner.

This is a companion case to State v. Roberts, 210 Kan. 786, 504 P.2d 242 (decided December 9, 1972). Although tried separately, the appellant John M. Kearns and his colleague John Doyle Roberts were each convicted of the same two counts of grand larceny, on substantially identical testimony. Each was represented by the same attorney, who made virtually the same contentions on behalf of each both at trial and in this court.

In Roberts we reversed and remanded for a new trial because of the trial court's failure to instruct on petty larceny. The same result must be reached here. The evidence here is likewise susceptible to a reasonable inference that the two $27 drills forming the basis of count I were not stolen at one time or as a result of one continuing criminal impulse. The same may be said of the 76 record albums charged under count II. Since none of the items under either count had a sufficient value to make its theft alone grand larceny, an instruction on petty larceny was called for. For a discussion of the 'single larceny' doctrine as applied to the facts in this case the reader is referred to State v. Roberts, supra.

Our opinion in Roberts in large part disposes of appellant's contentions here, but some require additional comment. The most important of these is that the drills and records were the products of an allegedly unlawfully search and seizure, and were therefore erroneously admitted into evidence. Roberts was held to lack standing to raise this issue because he claimed no proprietary or possessory interest in either the merchandise or the car from which it was taken-he was just a passenger. Kearns, our appellant here, was the owner and driver of the car. His standing is not questioned.

A little after 6:00 p. m. on November 6, 1969, Officer Miguel B. Garcia of the Lawrence police stopped appellant's car because he was looking for a white-over-blue Cadillac. Such a car had been described to him as the getaway car in the theft of some shoes from a local shoe store earlier that day. Although appellant emphasizes that when the initial contract was made the officer was operating on 'mere suspicion,' he does not seriously contend that there was anything unlawful about this bit of routine police work.

The propriety of such preliminary investigation was recently recognized in Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612. There, referring to Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889, the Court said (407 U.S. at 145-146, 92 S.Ct. at 1923):

'In Terry this Court recognized that 'a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest.' Id., at 22, 88 S.Ct., at 1880. The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape. On the contrary, Terry recognizes that it may be the essence of good police work to adopt an intermediate response. See id., at 23, 88 S.Ct., at 1881. A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time.'

The officer's investigation here led to a number of developments. Appellant first jumped out of his car and came back to the police car. The officer, not to be forestalled, approached appellant's car with appellant in tow and observed through the window, without entering: (1) a number of shoes thrown on the back seat; (2) two electric drills, unwrapped and bearing price tags, on the floor behind the driver's seat; and (3) a stack of 83 record albums, likewise bearing price tags, on the front seat between the driver's seat and that of his passenger, Roberts.

Inquiry revealed that appellant had no driver's license, and that both appellant and Roberts disclaimed ownership of or any interest in the merchandise. Neither knew how it all came to be in the car.

Still treading cautiously, Officer Garcia called for help. He secured the attendance not only of another officer but of the clerk from the victimized shoe store, who identified appellant and Roberts as the persons who had fled with the missing shoes. He also identified the shoes.

We...