State v. Ogden

• Decision Date: 04 November 1972
• Docket Number: No. 46699,46699
• Citation: 210 Kan. 510,502 P.2d 654
• Parties: STATE of Kansas, Appellee, v. Garrett Jack OGDEN, Appellant.
• Court: Kansas Supreme Court

Page 654

502 P.2d 654

210 Kan. 510

STATE of Kansas, Appellee, v. Garrett Jack OGDEN, Appellant.

No. 46699.

Supreme Court of Kansas.

Nov. 4, 1972.

Syllabus by the Court

1. One who counsels, aids or abets in the commission of any offense may be charged, tried and convicted in the same manner as if he were a principal.

2. It is proper to give an instruction on the possession of stolen property, recently after the theft, where the stolen property taken in a burglary is found in the accused's possession the day after the burglary.

3. Possession of a forged instrument by one who utters or seeks to utter it, or otherwise to realize on it or profit by it, without a reasonable explanation of how the possessor acquired it, warrants an inference that the possessor himself committed the forgery or was a guilty accessory to its commission.

4. On the facts stated in the opinion it was not prejudicial error to combine an instruction on the recent possession of stolen property with an instruction on the possession of a forged instrument by one who seeks to utter it.

5. A person can commit a burglary without burglary tools, and can be guilty of the possession of burglary tools without committing a burglary. Each constitutes a separate and distinct offense, and a verdict which finds a defendant guilty of burglary and larceny of a business establishment, and acquits the defendant on the companion charge of possession of burglary tools, is not an inconsistency which would warrant the granting of a new trial.

6. Improper argument by the prosecuting attorney in his closing argument, that it was inconsistent for the defendant to assert the defense of insanity and also to defend on the ground that he did not commit the alleged offenses, is held not to be prejudicial to the defendant where the trial court instructed the jury to disregard the remarks and admonished the prosecuting attorney, and where the defendant's own counsel first raised the inconsistent nature of the defenses of voir dire examination of the jurors.

7. Where an application for a search warrant was made to a magistrate and the affidavit filed in support thereof specified that the affiant, a detective, knew of his own knowledge of the burglary of a named business establishment, that blank checks, a check protector and a typewriter were taken in the burglary, that B was apprehended attempting to pass one of these checks and had told him where the checks and other items enumerated were located, it is held: the affidavit was sufficient to sustain the issuance of the warrant. The affidavit need not pinpoint every source of an affiant's belief, so long as it discloses a sufficient basis on which a finding of probable cause can be made.

8. Where a search warrant authorizes the search of 'a white frame residence' located at a certain address, a search of a trash can at the rear of the yard, where contraband is found, is properly considered a part of the premises to be searched.

9. Limitations on cross-examination are discretionary with the trial court, and the exercise of that discretion will be overturned only upon a showing of abuse which is clearly prejudicial.

10. The sentencing of convicted criminals pursuant to K.S.A.1971 Supp. 21-4504 is applicable only to those initially sentenced for offenses committed after the effective date of the new criminal code, July 1, 1970.

Albert J. Kirk, Wichita, argued the cause and was on the brief for appellant.

Wallace W. Underhill, Deputy County Atty., argued the cause, and Keith Sanborn, County Atty., Vern Miller, Atty. Gen., and Larry Kirby, Deputy County Atty., were with him on the brief for appellee.

SCHROEDER, Justice:

This is an appeal by the defendant, Garrett Jack Ogden, from a conviction of the crimes of burglary and larceny of the Quality Poultry Company in Sedgwick County, Kansas; burglary and larceny of Johnson Trucks Company in Sedgwick County, Kansas; and uttering and forgery. The appellant was acquitted by the jury on charges of burglary and larceny of the Dobson Roofing Company in Sedgwick County, Kansas, and possession of burglary tools.

Numerous trial errors are asserted for reversal on appeal.

Testimony given at the trial showed that the appellant, Gary Belden and Jerry Lee Owen were involved in a forged check cashing ring. Both Belden and Owen testified on behalf of the state.

On the 11th day of February, 1970, a search warrant was issued and the appellant's residence at 1350 South Gordon in Wichita, Sedgwick County, Kansas, was searched by the police. A typewriter, a check protector and an envelope with 'J' letters and 'J. A. Johnson' written on it, and other items not considered evidence, were found as a result of the search.

Richard Dobson, a roofing contractor doing business under the name Dobson Roofing Company, testified that some time during the late evening of January 29, 1970, or the early morning of January 30, 1970, an entry was made into his building and a typewriter and check protector were missing upon his return to the building for work on January 30, 1970. (Dobson testified James Bell worked for him in November and December, 1969. Bell was apprehended at the scene of a burglary involving Quality Poultry Company at 2:00 o'clock a. m. February 5, 1970.)

Mr. J. R. Johnson testified that he was in the moving and trucking business and that he left his business, Johnson Trucks, around 9:30 p. m. on January 29th and arrived back at the building around 6:30 a. m. on January 30, 1970. Mr. Johnson testified that the back glass of the restroom had been broken out and a television set, fourteen (14) blank checks and numerous cancelled checks were missing. All of the checks had 'Johnson Trucks' printed on them. Two of those checks were identified by Mr. Johnson as being state's Exhibit No. 9 and state's Exhibit No. 10. Mr. Johnson testified he did not sign these two checks and that he gave neither the appellant nor Jerry Owen permission to sign any checks whatsoever. These two checks purported to bear the signature of J. A. Johnson and were made payable to Jerry Owen.

The appellant, Garrett Jack Ogden, was the nephew of Mr. Johnson. Mr. Johnson's wife and the appellant's mother are sisters. On the afternoon before the burglary the appellant accompanied his mother to visit Mrs. Johnson at the Johnson Trucks place of business. The appellant was in the office and had looked around. He had previously worked for Mr. Johnson in the trucking business.

Jerry Lee Owen testified for the state that he had lost his identification after being at the appellant's residence on January 28, 1970. Mr. Owen stated that on the following day he had asked the appellant about this loss and the appellant told him the billfold had not been found. However, on January 30, 1970, the appellant came to Owen's, home and asked him to cash some checks. The appellant informed him Gary Belden had been cashing the checks using Jerry Lee Owen's identification, but that Belden had been apprehended by the police. Owen testified the appellant then drove him to various places within the city where he had intended to pass checks on the Johnson Trucking Company. Owen testified he was the individual who had cashed state's Exhibit No. 9 on January 30, 1970. He stated he had received 50% of the money for cashing a total of five checks.

Gary Belden testified the appellant had asked him on January 29, 1970, if he wished to make some money, and the appellant advised him that he would explain the following day how this would be done. Belden stated he saw checks at the appellant's home as well as a check protector and a typewriter. The checks had the name of Johnson Trucks and Jerry L. Owen upon them. He stated he used Jerry L. Owen's identification which was given to him by the appellant to pass the checks, and that the appellant told him the moeny would be split five ways. Belden was apprehended at a store attempting to pass one of the checks.

Numerous law enforcement officials and other persons testified making identification of persons and exhibits. The state's evidence adduced at the trial and presented in the record was overwhelming and amply supports the jury's finding of the appellant's guilt on each of the counts upon which he was convicted. In his brief the appellant abandons the point alleging that the verdict is contrary to the evidence.

The appellant contends his motion for a directed verdict should have been granted. He argues all the charges pertain to crimes committed by a principal, whereas, he asserts the evidence produced at trial only tended to incriminate him as an accessory. This argument has no merit. (See K.S.A. 21-105).

K.S.A. 62-1016 provides: 'Any person who counsels, aids or abets in the commission of any offense may be charged, tried and convicted in the same manner as if he were a principal.' This statute was in effect at all times material herein and is the applicable law. In State v. Irwin, 133 Kan. 509, 511, 300 P. 1098, 1099, the court stated:

'The law of this state is established, both by the statute and the decisions of this court, that one who counsels, aids, or abets in the commission of any offense may be charged, tried, and convicted in the same manner as if he were principal.'

The appellant contends the trial court erred in giving Instruction No. 12 to the jury. It reads:

'The possession of stolen property, recently after the theft, throws upon the possessor thereof the burden of explaining such possession. If the same is unexplained such possession may be sufficient of itself to warrant a conviction of the crimes of forgery and larceny from a person. However, such possession, to warrant a conviction thereof, must have been so recent after the time of the commission of the forgery and larceny from person as to render it morally certain that such possession could not have changed hands since the commission of such offenses.

'However, before this presumption can be applied you first...