State v. Neal, 47386

Citation529 P.2d 114,215 Kan. 737
Decision Date07 December 1974
Docket NumberNo. 47386,47386
PartiesSTATE of Kansas, Appellee, v. John M. NEAL, Jr., Appellant.
CourtUnited States State Supreme Court of Kansas

Syllabus by the Court

1. The possession of a firearm proscribed by K.S.A.1971 (now 1973) Supp. 21-4204(1)(b) is not the innocent handling of the weapon, but a wilful or knowing possession of the firearm with the intent to control the use and management thereof.

2. The record is examined in an action wherein the accused was convicted of violating K.S.A.1971 Supp. 21-4204(1)(b) and for reasons appearing in the opinion it is held that under the particular circumstances shown, the trial court erred in not including an instruction defining possession in its original charge to the jury.

Gerald Sawatzky, Wichita, argued the cause and was on the brief for appellant.

Stephen M. Joseph, Asst. Dist. Atty., argued the cause, and Vern Miller, Atty. Gen., Keith Sanborn, Dist. Atty., Clifford L. Bertholf, Asst. Dist. Atty., and Russell W. Davisson, legal intern, were with him on the brief for appellee.

FONTRON, Justice:

The defendant, John M. Neal, Jr., was charged with and convicted of possessing a .32 caliber pistol after having been convicted of a felony within the past five (5) years.

K.S.A.1973 Supp. 21-4204(1)(b), under which the charge was brought, provides as follows:

'(1) Unlawful possession of a firearm is:

'(b) Possession of a firearm with a barrel less than twelve (12) inches long by a person who, within five (5) years preceding such violation has been convicted of a felony under the laws of Kansas or any other jurisdiction or has been released from imprisonment for a felony.'

Briefly stated, the facts are these: On February 16, 1971, the defendant pleaded guilty to three counts of felony theft, which he stated without contradiction were for possessing stolen property. He was granted probation, from which he was discharged October 20, 1972. On December 16, 1972, he purchased the pistol from a pawn shop. The following February he pawned the gun at the same pawn shop prior to going on a trip to Arkansas. A Wichita officer in checking over pawn shop records in April ran across a record of the sale to the defendant and this prosecution followed.

The errors assigned by the defendant are mainly in the area of instructions. For them to be understood, reference must be made to the testimony of Mr. Neal and his friend, Sharon Meeker. Their testimony was to this effect: In December, 1972, Neal was living in a house with two bedrooms and full basement; that Sharon Meeker, a school teacher, was living in the house with her two children and was sharing expenses; that due to a series of crimes occurring in the neighborhood-one being a burglary of their house while they were there-it was decided Sharon needed protection while Neal was working nights; that Neal and Sharon drove to the pawn shop where he went in and bought the gun while Sharon stayed in the car; on returning to the house the gun was placed in Sharon's bedroom closet where she had access to it at all times; that it remained untouched by defendant until he cleaned and took it to the pawn shop with Sharon where it was pawned. From there, Sharon took Mr. Neal to the airport, where he emplaned for Van Buren, Arkansas, where he signed a recording contract with the B. J. Recording Studios.

At the close of the evidence the defendant requested the court to give certain PIK instructions plus the following instruction on possession:

"Possession' means to have actual control, care and management of, and not a passing control, fleeting and shadowy in its nature.'

The request for the instruction defining possession was rejected and this forms the basis of defendant's principal claim of error.

The principal points of error assigned by defendant on appeal centers around the court's refusal to define 'possession.' He contends that the court, in refusing to instruct on the meaning of possession, failed to present the theory of his defense and that his right to a fair trial was thus prejudiced, particularly in view of the nature of the closing argument made by the state.

The defendant cites two recent cases, State v. Phinis, 199 Kan. 472, 430 P.2d 251 and State v. Runnels, 203 Kan. 513, 456 P.2d 16, which deal with K.S.A. 21-2611, predecessor of 21-4204(1)(b), our present statute. We consider those cases in point because, as was said in State v. Knowles, 209 Kan. 676, 677, 498 P.2d 40, the differences between the two statutes are immaterial for present purposes. The charge in State v. Phinis, supra, grew out of an incident in which the defendant took a .38 caliber revolver from a bedside table in her sleeping quarters and fired into the floor to frighten an obstreperous acquaintance who had crashed a birthday party for the 75-year old guest of honor. The defendant was convicted and she contended on appeal that the evidence did not support a verdict of guilty on the issue of possession and control.

In Phinis, the jury was instructed that possession and control as used in the statute did not turn upon the handling of the weapon alone, and if the handling was an innocent one without the intent to have, possess or control the weapon, the act was not prohibited by the statute. In sustaining the conviction, Mr. Justice Fromme, speaking for the court, said:

'Although the statute in question (K.S.A. 21-2611) does not require intent to do a prohibited act as a prerequisite for its application, (State v. Wheeler, 195 Kan. 184, 186, 403 P.2d 1015), yet the statute contemplates proof of possession and control which is more than an innocent handling of the pistol without intent to have, possess or control the same.' (199 Kan. p. 482, 430 P.2d p. 259.)

It is to be noted the decision in Phinis turned on the sufficiency of the evidence, not the adequacy of the instructions.

In the second case, State v. Runnels, supra, the issue concerned the court's instructions to the jury, which in part were as follows:

"Before you can find the defendant, Carl Dennis Runnels, guilty as charged in the information, the state must prove to your satisfaction beyond a reasonable doubt the following essential elements:

'(a) That the defendant on or about May 28, 1967, in Russell County, Kansas, did wilfully have or keep a pistol in his possession with the intent to control the use and management thereof, or that the defendant did wilfully have a pistol in his control with the power and intent to guide or manage such pistol.

"(b) That at said time the defendant, Carl Dennis Runnels, had previously been convicted in this state or elsewhere of the crime of burglary.

"If you find from the evidence, beyond a reasonable doubt, each and all of the essential elements charged as set forth in this instruction, then you should find the defendant guilty as charged in the information.

"If you fail to find from the evidence,...

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29 cases
  • State v. Howard
    • United States
    • Kansas Court of Appeals
    • 5 Diciembre 2014
    ...use and management thereof” but not knowledge that the person was breaking the law barring a felon from possessing a firearm. See State v. Neal, 215 Kan. 737, Syl. ¶ 1, 529 P.2d 114 (1974).Howard argues that the general-intent requirement applies to both elements of his crime and that to ha......
  • Carfield v. State
    • United States
    • Wyoming Supreme Court
    • 16 Agosto 1982
    ...grounds 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974) 2; People v. Tenorio, 197 Colo. 137, 590 P.2d 952 (1979); State v. Neal, 215 Kan. 737, 529 P.2d 114 (1974); State v. Heald, Me., 382 A.2d 290 (1978); State v. Drummonds, 430 Ohio App.2d 187, 72 Ohio Op.2d 406, 334 N.E.2d 538 (1975);......
  • State v. Goodseal
    • United States
    • Kansas Supreme Court
    • 23 Julio 1976
    ...depend upon the particular evidence adduced in that case. Appellant now seeks to come within the ambit of our ruling in State v. Neal, 215 Kan. 737, 529 P.2d 114. There the trial court instructed the jury that to establish the charge it had to be proved the defendant knowingly had possessio......
  • State v. Tyler
    • United States
    • Arizona Court of Appeals
    • 8 Abril 1986
    ...given sufficiently covered defendant's theory of the case. See State v. Hoskins, 222 Kan. 436, 565 P.2d 608 (1977); State v. Neal, 215 Kan. 737, 529 P.2d 114 (1974). The trial court also need not give requested instructions which are incorrect statements of law. State v. Axley, 132 Ariz. 38......
  • Request a trial to view additional results

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