State v. Lewark

• Decision Date: 10 January 1920
• Docket Number: 22,488
• Citation: 106 Kan. 184,186 P. 1002
• Parties: THE STATE OF KANSAS, Appellee, v. RUSS LEWARK, Appellant
• Court: Kansas Supreme Court

186 P. 1002

106 Kan. 184

THE STATE OF KANSAS, Appellee, v. RUSS LEWARK, Appellant

No. 22,488

Supreme Court of Kansas

January 10, 1920

Decided January, 1920.

Appeal from Montgomery district court; JOSEPH W. HOLDREN, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. RECEIVING STOLEN PROPERTY--Sufficient Information. An information charging the receiving of stolen goods need not state where the original theft occurred.

2. RECEIVING STOLEN AUTOMOBILE--Admission of Certain Evidence No Ground for Reversal. In a prosecution for knowingly receiving a stolen automobile, evidence was given that it was discovered in the garage of the defendant by policemen who were there serving a search and seizure warrant issued under the prohibitory law, and that they also found some liquor. It is held that it was proper to show the errand that brought the officers to the premises, and that the admission of the evidence of the finding of the liquor could not be a ground of reversal, because it was not specifically attacked by objection made to its admission or by a motion to strike it out.

3. SAME--In a prosecution for knowingly receiving a stolen automobile, testimony that the appearance of the engine number showed that it had been changed is not objectionable as stating a conclusion, where the witness describes its appearance as fully as reasonably practicable, specifying that file marks were visible and portions of the original figures still legible. Nor is such testimony objectionable as not being the best evidence, for the rule that the omission to produce a writing must be satisfactorily accounted for before secondary evidence of its contents is admissible does not apply in such a case, or at all events it applies no further than the trial court in its discretion may see fit to enforce it.

4. SAME--Evidence Supports Findings. The evidence is held to have been sufficient to support findings that the defendant knew the car to be a stolen one, and that he received it in the county charged. It was not necessary to prove that he had absolute knowledge of the theft, or was advised as to from whom or when and where the larceny had taken place--merely that from the circumstances he must have understood that it was stolen, and acted on that understanding.

5. SAME--No Variance in Allegations and Proof of Ownership. Under a charge of receiving a stolen car belonging to three individuals, a variance does not result from proof that it was owned by a partnership of which they composed the membership, doing business under the name of the Western Land Company.

Thomas E. Wagstaff, of Independence, for the appellant.

Richard J. Hopkins, attorney-general, Alfred G. Armstrong, county attorney, and J. F. Sanford, assistant county attorney, for the appellee.

OPINION

MASON, J.:

Russ Lewark was convicted of knowingly receiving a stolen Ford automobile, and appeals.

1. The section defining the offense (Gen. Stat. 1915, § 3465) covers the receiving of embezzled goods, and refers to the four preceding sections relating to embezzlement. The suggestion is made that it is intended to reach only cases where the original offense was perpetrated by one acting in a fiduciary capacity. We do not regard the statute as open to that interpretation. The information is also criticized because it does not allege where the original theft was committed. Such an allegation is not necessary. (34 Cyc 522.)

2. Policemen were permitted to testify that they went to the defendant's garage to serve a search and seizure warrant issued under the prohibitory act, and that they there found two bottles of beer and two of wine, besides a number of empty bottles, and also the automobile alleged to have been stolen. It is objected that the testimony was irrelevant and was especially harmful because of public sentiment against violators of the laws relating to intoxicating liquor. It was not improper to show how the officers came to visit the defendant's place. The statements regarding the bottles do not appear to have been specifically attacked--if they had been, doubtless they would have been rejected or stricken out.

3. The officers were also allowed to testify that the engine number of the car had been changed; that the original figures had been filed off and new ones stamped over them; that parts of the old figures showed; and that one of them could be seen to have been a 3, an 8 or a 5. This testimony is objected to as embodying a conclusion or opinion, rather than a fact, and as not being the best evidence. It was permissible for the witnesses to give their judgment that the appearance of the number showed it to have been tampered with, for it was hardly practicable for them to describe in exact detail all the indications on which their belief was founded. They appear to...