State v. Leigh

• Decision Date: 13 November 1948
• Docket Number: 37447.
• Citation: 166 Kan. 104,199 P.2d 504
• Parties: STATE v. LEIGH.
• Court: Kansas Supreme Court

199 P.2d 504

166 Kan. 104

STATE v. LEIGH.

No. 37447.

Supreme Court of Kansas

November 13, 1948

Rehearing Denied Dec. 20, 1948.

Appeal from District Court, Allen County; Wallace H. Anderson Judge.

Syllabus by the Court.

Spencer A. Gard, of Iola, and Edw. Rooney, of Topeka (Spencer A Gard, of Iola, on the brief), for appellant.

J. D Conderman, County Atty., of Iola (Edward F. Arn, Atty. Gen. and H. R. Fatzer, Asst. Atty. Gen., on the brief), for appellee.

HOCH Justice.

Appellant was convicted of stealing an automobile. Upon appeal he contends that the evidence was insufficient to support a verdict of guilty; that the trial court gave an erroneous instruction to the effect that unexplained possession of stolen property constitutes prima facie evidence of guilt; and that in view of the showing made, the court abused its discretion in denying his petition for a rehearing on the motion for new trial.

In an information filed on January 12, 1948, the defendant Lorraine Leigh was charged with the theft in Allen County on October 3, 1947, of an automobile belonging to one Ewell S. Johnson. At the trial on January 20, 1948, he waived arraignment and entered a plea of not guilty. The trial proceeded regularly and on the same day, January 20, 1948, the jury returned a verdict of guilty. Motion for new trial on the usual statutory grounds was filed on January 22, 1948, and overruled on January 24, 1948. Thereupon the state introduced evidence showing that the defendant had been previously convicted of a felony in Butler County, Kansas, on October 23, 1941, and given a penitentiary sentence. Defendant was then sentenced to a term in the penitentiary of not less than five nor more than thirty years.

On April 21, 1948, defendant filed a petition--to which further reference will presently be made--for a rehearing on his motion for new trial. Hearing was had on the petition on April 26, 1948, with introduction of various affidavits and argument by counsel for both sides. In denying a rehearing and a new trial, the trial court said, among other things, that 'the said newly discovered evidence is cumulative and for the most part would depend on testimony of witnesses who testified at the trial and is not of such character as to change the result of the action if a new trial were granted', and made a finding that the defendant had had a fair trial. This appeal followed.

Johnson, the owner of the automobile in question, testified that he drove the car to the U. B. Church in Iola at about 7 o'clock on the evening of October 3, 1947, to do some carpenter work and that about 7:30 p. m. he discovered that the car was gone; that he had left his keys in the car but had not given permission to any one to use it; that he knew defendant by sight and hd not given him permission to use it. The next time he saw the car was the following night, October 4, at which time it was standing on Highway 54 in Bourbon County, and that at that time the two rear fenders, the right running board and two left wheels were badly bent; that some of the gutter which runs around the top of the car had torn off and was missing; and that none of these conditions had previously existed.

Witness E. S. Payne testified in substance that he ran a tourist camp and service station on Highway 54 west of Fort Scott, in Bourbon County; that he had seen the defendant before; that the first time he saw him, he and another man had had a flat tire just across the street from his station and came in to get it fixed, but he was busy at the time and could not fix it and that defendant then bought a used tire and inner tube. The next time he saw him was 'on about the 3rd of October, 1947'; that at about 9:30 in the evening on that day a car stopped and defendant got out of the car and came into the station and the car went on, and that he did not know who the driver was; that the defendant stated that he had run out of gasoline and had had a wreck, having turned the car over, and wanted some gasoline; that he got dressed and took gasoline, driving his own car, the defendant riding with him; that he found the car which was 'a blue 1940 Mercury Ford' standing on one side of the road, and that he turned his car around with the lights on the back of the other car in order to put gasoline into it; that the defendant got in and tried to start the car but it didn't start, and he pushed it until it started, and the defendant drove it into his station under the lights there; that the defendant told him about buying the car and that both of them got out and looked it over and he (the witness) stated: 'Well, it's going to need a little fixing or a paint job', and defendant replied that he would get to it some of these days; that he noticed that at that time the right fender and the running board were bent under and that a piece of the gutter was gone; that the defendant then had on a leather jacket and a pair of khaki pants. He further testified that the time before when he had seen him, defendant had said he was a painter at Iola. Payne further testified that at a later date not disclosed by the record, he was shown a car in front of the courthouse in the presence of the sheriff and chief of police, at which time he identified it as the same car, and that at that time it was practically in the same condition as described when he saw it in the filling station.

Mack Percy, chief of police of Iola, testified that at 8:04 p. m. on October 3, 1947, Johnson reported his car stolen and that a search was instituted, and on the following evening the sheriff's office at Fort Scott reported that a car answering the description had been found abandoned on the highway in Bourbon County and that he, the sheriff, a highway patrolman, and Johnson went over to look at the car and found it to be the Johnson car. He testified that the car had been damaged in some sort of accident; that the fenders and running board were bent.

John A Page, sheriff of Allen County, gave similar testimony stating that he saw the automobile about October 4, 1947, in Bourbon County, and that it looked like it had been in a wreck. Other testimony on the part of the state or of the defendant need not be recited at this point.

Appellant contends that the above evidence and particularly the testimony of Payne, the operator of the service station, identifying the defendant as being in possession of the stolen car on the evening of October 3, about two hours after it had been stolen, was not sufficient to sustain a verdict of guilty. It is true that Payne was the only witness who identified the defendant as being in possession of the stolen car soon after it was stolen. His identification, however, was positive, both as to the defendant and as to the car. Appellant calls attention to the fact that it was about three months after the man called for gasoline at his filling station when he identified the defendant as being the same man and argues from that that the testimony is not convincing either as to identity or as to possession. This was a proper argument for the jury, and it would be strange if it was not argued by the capable attorney who defended him. Appellant further argues that no one testified that the defendant was seen driving the car from the place where it was stolen; that there was no evidence indicating whether the person supposed to be the defendant and who arrived at the service station came from the east or came from the west, nor whether the car for which Payne supplied the gasoline was headed west towards Iola or towards the east. Also the appellant urges that the conduct of the man who called at the filling station to get gasoline on the evening of October 3 was not that of a man who had stolen a car since he did not appear nervous or in a hurry; that after the gasoline had been supplied to the car, he returned with Payne to the filling station where he drove the car in under the lights and talked with Payne for some time before driving on. Again, all of this was a matter of evidence for the jury. It is not our function to weigh the evidence.

The defendant did not take the stand, and the trial court instructed the jury that his failure to do so did not raise any presumption of guilt and that it should not be referred to by the prosecuting attorney nor considered by the jury as affecting the question of his guilt or innocence, and that the jury should use great care not to comment in the jury room as to the defendant's failure to testify.

It has long been held in this state--although noting that the rule is not the same in all jurisdictions--that an unexplained possession of stolen property immediately or very soon after the property has been stolen places the burden upon the one in possession to explain the circumstance. The rule appears to have been first discussed at some length in the early case of State v. Cassady, 12 Kan. 550, in an opinion written by Justice Brewer. In that case the instruction under attack was that 'the possession of stolen goods recently after they are stolen is a strong presumption of guilt'. The court said: 'That the rule that possession of property recently stolen makes out a prima facie case of guilt, and throws upon the defendant the burden of explaining that possession, is one of long standing, and abundantly fortified by authorities, no one can question. * * * Such possession is said to raise a presumption of guilt, and, if unexplained, is sufficient to warrant a conviction. Some attempts have been made to qualify or limit this rule. In State v. Hodge, 50 N.H. 510, it was held that this presumption of guilt was not a presumption of law, but one of fact. In People v. Chambers, 18 Cal 382; People v. Ah Ki, 20 Cal. 177; People v. Antonio, 27 Cal. 404; and Conkwright v....