State v. Larkin
| Decision Date | 10 June 1972 |
| Docket Number | No. 46592,46592 |
| Parties | STATE of Kansas, Appellee, v. Patrick Edward LARKIN, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
The record in a criminal action in which appellant was convicted of burglary and theft is examined, and it is held: The district court properly denied appellant's motion for discharge based on an alleged illegal arrest; the prosecution's evidence was sufficient to sustain the conviction; the district court did not err in instructing the jury and prejudice in connection with admission of evidence is not shown.
John C. Humpage, of Humpage & Stewart, Topeka, argued the cause and was on brief for appellant.
James R. Fetters, County Atty., argued the cause, and Vern Miller, Atty. Gen., was with him on brief for appellee.
HARMAN, Commissioner:
Patrick Edward Larkin was convicted by a jury of the offenses of burglary (K.S.A.1971 Supp. 21-3715) and theft of property of a value of more than fifty dollars (K.S.A.1971 Supp. 21-3701). His motion for new trial was overruled, he was sentenced upon the verdicts rendered against him and he now appeals.
The subject of the burglary was a business building in Kensington, Kansas, from which merchandise was stolen about 1:30 a. m. on July 8, 1970. The offenses allegedly were committed by appellant and three other men, two of whom, Ronnie Lynn Solida and Floyd Lesher, Jr., testified on behalf of the prosecution. One of these two witnesses had plead guilty to eleven criminal counts including those in question; the other had plead guilty to nine similar offenses in other counties.
Briefly stated, the evidence for the prosecution revealed the following: During the evening of July 7, 1970, appellant and one accomplice rented a trailer in Norton, Kansas. After driving around to different points for various purposes-including the loading into the trailer of other articles previously stolen-appellant and the three accomplices arrived in three different vehicles at the Midway Implement Company building in Kensington at about 1:30 a. m. One man, equipped with a walkie-talkie, remained outside as a look-out while appellant and the other two entered the building after forcing the front door. Appellant's equipage likewise included a walkie-talkie. The three loaded the two garden tractors, a space heater, batteries and a lawn mower into the rented trailer and subsequently took them to Kansas City, Missouri, where they were sold and the proceeds divided among the participants. The cargo taken to Kansas City also included the fruits of other burglaries. Appellant and another made the sale. Further prosecution evidence will be related in considering appellant's specifications of error.
Appellant and the fourth alleged participant, Darrell Higby, testified that they left Stuttgart, Kansas, at about 9:00 p. m., July 7, 1970, in a vehicle pulling a trailer and arrived in Leavenworth, Kansas, at about 1:00 a. m. the following morning. Four other alibi witnesses called by appellant testified they saw him in Leavenworth between 1:00 and 2:00 o'clock on the morning of July 8th. Leavenworth is more than 225 miles distant from Kensington.
Appellant first complains he was taken into custody by virtue of an arrest warrant issued upon a defective complaint and therefore the trial court erred in denying his motion for discharge. Assuming arguendo, that his arrest may have been illegal, he fails to point out resulting prejudice. We have frequently held that an illegal arrest and detention do not, standing alone, invalidate a subsequent conviction (State v. Addington, 205 Kan. 640, 472 P.2d 225).
Appellant challenges the sufficiency of the evidence to sustain his conviction. His primary thrust is that evidence of unauthorized entry and taking was lacking. He asserts there was no direct evidence produced by the state, as required, that the owner of the property did not consent to the entry and subsequent taking. Appellant's reliance upon certain language used in State v. Aten, 203 Kan. 920, 457 P.2d 89, is misplaced. There we said:
'The want of consent of the owner to the taking of his property may be proved by circumstantial evidence when, without fault on the part of the state, direct testimony cannot be produced.' (p. 927, 457 P.2d p. 96.)
One of the co-owners of the Midland Implement Company, as well as an employee, testified that at 7:30 a. m., July 8th, when the store was opened the tractors, batteries, space heater and lawn mower were missing. The articles had not been sold and were in the store when it was last closed. A subsequent search by an investigating officer failed to reveal them. According to the testimony of the two accomplice witnesses...
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