State v. Knowles
| Decision Date | 10 June 1972 |
| Docket Number | No. 46615,46615 |
| Citation | 209 Kan. 676,498 P.2d 40 |
| Parties | The STATE of Kansas, Appellee, v. John L. Knowles, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. 'Possession' of a firearm under K.S.A.1971 Supp. 21-4204(b) and 'control' of property under the theft statute, K.S.A1971 Supp. 21-3701, both connote the exercise of 'dominion' over the object in question.
2. Evidence of concealment of merchandise on the defendant's person, attempted flight when apprehended, and an admitted intent to sell the merchandise, is sufficient to support an inference that he both 'possessed' and exerted 'unauthorized control' of such property.
3. Where proof of a previous conviction is an essential element of a crime charged, failure to give an instruction limiting the purpose for which such conviction may be considered is not reversible error in the absence of a request.
4. Prosecution both for attempted theft and for unlawful possession of a firearm does not constitute double jeopardy even though both charges arise out of a single transaction and involve a single pistol.
Oneil Davis, Wichita, argued the cause and was on brief for appellant.
Reese C. Jones, Deputy County Atty., argued the cause, and Vern Miller, Atty. Gen., Keith Sanborn, County Atty., and Roger C. Skinner, Deputy County Atty., were on brief for appellee.
FOTH, Commissioner.
On October 17, 1970, the appellant and a companion entered David's, Inc., retail store in Wichita. They went to the gun counter where they were waited on by a clerk named Andrew Corbin. Corbin displayed 30 or 40 hand guns to the two shoppers and, after fifteen or twenty minutes, left three or four guns on the counter for their inspection while he went to help at the cash register. While Corbin was at the cash register, appellant picked up a pistol, showed his companion that he had it and placed it beneath his coat. Between five and fifteen minutes later he took the gun from beneath his coat and placed it in his coat pocket.
Unknown to appellant, he was being watched during this entire time by Doyle Moore, another sales clerk. Upon seeing appellant place the pistol in his pocket, Moore stepped around the counter and asked the appellant to come to the office with him.
Appellant asked what for, and Moore replied, 'For this,' tapping the pocket containing the gun. Appellant thereupon handed Moore then gun and the two headed for the office. En route the appellant started to run toward the exit, but stopped when he was told a security guard was on duty there. The two then proceeded to the office and the police were called. While waiting, in reply to a question concerning what he was going to do with the gun, appellant said that he was going to sell it.
As a result of this escapade appellant was charged with the attempted felonious theft of the gun, which had a value of more than fifty dollars. In addition, when it was learned that he had been paroled from the reformatory just a year before, he was charged in a second count with the unlawful possession of a firearm under what is now K.S.A.1971 Supp. 21-4204(b). He was convicted by a jury of both counts, and he appeals.
Appellant argues three of his four points-relied-on together, each based on his claim that the state's evidence failed to show the that the state's evidence failed to show the on the fact that, until accosted by Moore, he had made no move to leave the gun department. His actions were all, according to him, entirely consistent with an 'innocent handling,' and did not demonstrate the intent to 'have, possess and control' the gun required by State v. Phinis, 199 Kan. 472, 430 P.2d 251 and State v. Runnels, 203 Kan. 513, 456 P.2d 16.
His argument goes to both crimes of which he was convicted. The concept that 'possession' constitutes more than an 'innocent handling' was first enunciated in Phinis and elaborated upon in Runnels, both involving the predecessor of our present statute prohibiting the possession of a pistol by certain felons. That concept is clearly applicable to the firearm count in this case.
The pertinent portion of the theft statute, 21-3701(a), defines the offense as 'obtaining or exerting unauthorized control over property' when done with intent to deprive the owner permanently of the possession, use or benefit of his property. The 'control' contemplated by this statute likewise is more than innocent handling, embodying the concept of 'dominion.' Cf. State v. Brown, 203 Kan. 884, 457 P.2d 130, where that term was used together with 'control' to explain what constitutes 'possession' of recently stolen property. And see, State v. Porter, 201 Kan. 778, 443 P.2d 360, cert. den. 393 U.S. 1108, 89 S.Ct. 919, 21 L.Ed.2d 805.
While 'control' may conceivably be exercised in a manner not amounting to 'possession,' generally speaking each term connotes something of the other when they are used in the context of criminal law, and each connotes the exercise of some degree of 'dominion' over the property in question.
The trouble with appellant's argument is that there was ample evidence from which the jury might readily infer that his 'possession' of the pistol and his 'control' over it were of exactly the nature contemplated by the respective statutes. He first concealed the weapon and demonstrated this fact to his companion; he then put it in his pocket. Under the circumstances this alone would have supported a finding that he 'possessed' the pistol and exerted 'unauthorized control' over it. There was direct testimony, if needed, that such conduct was not customary among bona fide shoppers and was 'unauthorized' in this case. In addition there was his attempted flight-always evidence of guilty knowledge-and the admission that he intended to sell the gun. This combination-concealment, flight and admission-is a powerful indication that appellant's 'handling' of the pistol was not 'innocent.'
Indeed, it would appear that his control over the pistol was such that he could well have been convicted of the completed crime of theft, and not merely the attempt charged. 'Theft' under the present statute, unlike 'larceny' under the...
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State v. Long
...cases have similarly held the taking was complete prior to the time the defendant left the owner's premises. In State v. Knowles, 209 Kan. 676, 678, 498 P.2d 40 (1972), it was noted by the court in dictum that the defendant had exerted sufficient control over the property to have been charg......
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State v. Kleypas
...is not error unless such failure is clearly erroneous. State v. Lolar, 259 Kan. 682, 687-88, 914 P.2d 950 (1996); State v. Knowles, 209 Kan. 676, 679-80, 498 P.2d 40 (1972). We conclude that the court was not required to instruct the jury regarding the applicability of the evidence where Kl......
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State v. Kunellis, 86,829.
...K.S.A. 21-3701(a) is not a continuing offense. [Citation omitted.]" Both decisions basically restated prior law. In State v. Knowles, 209 Kan. 676, 678, 498 P.2d 40 (1972), we had held that "`[t]heft' under the present statute, unlike `larceny' under the old, requires no asportation to comp......
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State v. Goodseal
...dominion thereover, or the right and authority to possess, control and manage its use and disposition.' (Syl. para. 3.) In State v. Knowles, 209 Kan. 676, 498 P.2d 40, we held that both the 'possession' of a firearm under K.S.A. 21-4204(1)(b) and 'control' of property under the theft statut......