State v. Oswald

• Decision Date: 07 July 1966
• Docket Number: No. 44349,44349
• Citation: 417 P.2d 261,197 Kan. 251
• Parties: STATE of Kansas, Appellee, v. Robert Sherman OSWALD, Appellant.
• Court: Kansas Supreme Court

Page 261

417 P.2d 261

197 Kan. 251

STATE of Kansas, Appellee, v. Robert Sherman OSWALD, Appellant.

No. 44349.

Supreme Court of Kansas.

July 7, 1966.

Rehearing Denied Sept. 1, 1966.

Syllabus by the Court

1. The evidence introduced at a criminal trial is examined on appeal and it is held sufficient to prove identity of the property taken and to justify the verdict of guilty.

2. No error appears in overruling a motion for new trial based upon newly discovered evidence when the evidence claimed as a basis was of a nature making it within the personal knowledge of the defendant at the time of trial and when no attempt was made by him to secure the same on his own behalf.

3. The instructions to a jury are examined and under the circumstances of this case no prejudicial error is found. Submission of an additional instruction in writing after jury deliberations have begun if neither coercive nor an invasion of the province of the jury does not constitute prejudicial error when equally helpful to both parties in securing a verdict.

4. The production of notes made by an officer in the course of his investigation cannot be required by the defendant for use in cross examination when the notes were not used by the officer to refresh his recollection while on the stand and which notes might disclose confidential information concerning distinct crimes in the process of further investigation. Production in such cases rests in the sound discretion of the trial court.

Stephen B. Millin, Kansas City, Mo., argued the cause, and Ernest McRae, Wichita, with him on brief for appellant.

A. J. Focht, Deputy County Atty., argued the cause, and Robert C. Londerholm, Atty. Gen., and Keith Sanborn, County Atty., with him on brief for appellee.

FROMME, Justice.

This is a direct appeal in a criminal action. Robert Sherman Oswald was tried, convicted and sentenced for larceny of tires. He was sentenced to confinement for a period of fifteen years in accordance with K.S.A. 21-534 and 21-107a as an habitual criminal. Appellant her complains of various trial errors and of insufficiency of the evidence.

The facts and circumstances of this case are summarized from the evidence in the record as follows:

The defendant lived in St. Louis, Missouri, and owned and operated a tow truck. He learned of certain tires which were accessible in Wichita. After picking up a friend, Glenda Duisen, and a rented trailer, he left St. Louis. He arrived in Wichita around 11:00 P.M. on February 15th, 1965. He loaded thirty-five tires into the rental trailer. Because of mechanical trouble with his truck, he was delayed until the following evening and then left for St. Louis. Defendant was stopped by officer Wilson of the Jackson county Missouri sheriff's patrol on highway 40 because of his speed and tail lights. An examination of the trailer disclosed the tires. An examination of the tow truck disclosed a .38 revolver in the glove compartment. A traffic ticket was issued to defendant for careless driving and he was put under arrest for investigation of burglary. Defendant was taken to patrol headquarters in Jackson county, Missouri, and he gave a written statement indicating the source of the tires was in Wichita Kansas. He stated that he obtained the tires from a Sinclair service station in Wichita. The thirty-five tires in the towed trailer were taken into custody by the Jackson county sheriff's office. They were inventoried and certain identifying marks were noted in addition to the tire sizes and trade name. All tires were new Goodyear tires. Two of the tires had 'Goodyear Service Store, 336 S. Main, Wichita, Kansas' sustained on the tire wrappings. Eight of the tires had 'change over' numbers stamped on them which numbers were used by the Goodyear store to indicate that owners of new vehicles had exchanged these unused tires for those of different size or grade. Two of the tires had 'Huston Tire, Hays, Kansas' written on them. There was evidence that these latter tires were part of a shipment of a total of twenty such tires inventoried at the Goodyear store the first of February.

In response to inquiry by the Jackson county sheriff's office the officials in Wichita checked out defendant's story and found that the tires had not been taken from any Sinclair service station; and they learned on investigation that the inventory of tires in the Goodyear store in Wichita was short approximately seventy tires.

Captain Overman of the Wichita police went to Missouri and brought back four of the tires taken from defendant's rented trailer. These had been held in custody by the Jackson county sheriff's office. He also returned the defendant to Wichita for trial. The other thirty-one tires were shipped by the sheriff's office in Missouri to the manager of the Goodyear store in Wichita. The manager testified that there was no evidence that the locks had been broken of forced on their warehouse where the tires were stored. There was nothing apparent to indicate how entrance had been gained, or how the tires were removed. The company sales records indicated these tires had not been sold to anyone. The manager of the Goodyear store testified the thirty-five tires belonged to Goodyear. However, he could not indentify each tire separately.

There was some evidence, and several statements made by both counsel during the trial, from which the jury might infer that Arthur McKenna Jr. was also involved in the larceny of the tires as an accomplice. The defendant urges that it was the theory and proof of the state that McKenna was the thief and therefore the defendant cannot be legally convicted of the crime.

The information filed against defendant specifically charges the defendant with stealing the tires. We fail to see how reference to McKenna in the trial of this case could have materially prejudiced the defendant, for its effect would seem to cast some doubt in the minds of the jury as to the guilt of defendant and might have resulted in a reasonable doubt as to his guilt. The defendant was charged with larceny of tires. The references to McKenna did not change the theory of the case set forth in the information. In any event the defendant failed to include this specification in his grounds for new trial.

This court stated in State v. Freeman, 195 Kan. 561, 570, 408 P.2d 612, cert. den. 86 S.Ct. 1981.

'The rule in this jurisdiction is that in a criminal case specifications of error not included in the grounds of the motion for new trial, and thus brought to the attention of the trial court, cannot be considered on appeal. (State v. Trams, 189 Kan. 393, 369 P.2d 223, and cases therein cited.) Moreover, alleged trial errors not heard nor presented at the hearing on the motion for new trial are unavailing on apppeal from a conviction. (State v. Malone, 194 Kan. 563, 400 P.2d 712.)'

Defendant contends that the evidence was insufficient to identify the tires found in his possession as those missing from the Goodyear store in Wichita. He cites State v. Ragland, 170 Kan. 346, 226 P.2d 251. In this case defendant was charged with burglary and larceny of money. The record there wholly failed to show whether it was $400.00 or $4,000.00 taken. There was no showing of the type of money taken, either cash or currency, and no evidence as to the denomination of any bills. The other evidence to tie defendant to the crime was equally uncertain and indefinite and the court held there was no evidence upon which an inference of defendant's guilt could be based. We have examined the other cases cited by defendant and do not find them persuasive.

This court has held that when money claimed to have been stolen is offered in evidence it is not necessary to identify each bill by giving its number, series and denomination. (State v. Pigg, 80 Kan. 481, 103 P. 121.)

The presence of red hog bristles in defendant's car of the kind and color of those on the hog stolen may be established to prove the identity of the hog sold by defendant and transported in said car. (State v. McKee, 131 Kan. 263, 261 P. 950.)

Where defendant was charged with larceny of four tires, tubes and rims, evidence of spots of red paint on rims of the same size, kind and make goes to the identification of the stolen property and may be admissible. (State v. Handler, 142 Kan. 455, 50 P.2d 977.)

When the owner of a large quantity of liquor identifies the liquor as that which was stolen from his store, he cannot positively identify each bottle when cross-examined, an objection to the introduction of such liquor into evidence goes merely to the weight and not to the admissibility of the evidence. (State v. Hendrix, 188 Kan. 558, 363 P.2d 522.)

The identity of the thirty-five tires found in the trailer which defendant was pulling behind his tow truck was sufficiently certain to go to the jury. Special identification on individual tires was shown, such as 'Goodyear Service Store, 336 S. Main, Wichita, Kansas' printed on tags attached to two of the tires. The name of 'Huston Tires, Hays, Kansas' was written on two of the tires. The 'change over' numbers appeared on certain of the tires and was generally in use by the Goodyear store. This was evidence admissible to establish identity. When considered along with all other circumstances of this case the evidence was sufficient for the jury to find all thirty-five tires found in defendant's trailer came from the Goodyear store in Wichita.

Defendant argues that there was no evidence to show he stole the tires even though they were found in his trailer. Disregarding for this purpose the direct admission by the defendant contained in his written statement given to detective Kelly, this court has repeatedly held that possession of recently stolen goods when unexplained may be sufficient to uphold a conviction.

In State v. Grey, 154 Kan. 442, 119 P.2d 468, defendant was charged in one count with burglary and larceny. At page 444 of the opinion, at page 469 of 119 P.2d ...