State v. Peasley, 39835

• Decision Date: 07 April 1956
• Docket Number: No. 39835,39835
• Citation: 295 P.2d 627,179 Kan. 314
• Parties: STATE of Kansas, Appellee, v. James PEASLEY, Appellant.
• Court: Kansas Supreme Court

Page 627

295 P.2d 627

179 Kan. 314

STATE of Kansas, Appellee, v. James PEASLEY, Appellant.

No. 39835.

Supreme Court of Kansas.

April 7, 1956

Syllabus by the Court.

The record in a criminal prosecution for burglary and larceny while engaged in the commission of the burglary examined, and held, that under the facts, conditions and circumstances described and set forth in the opinion the claims of error relied on by defendant as grounds for reversal of the judgment and the order overruling his motion for a new trial lack merit and cannot be upheld.

Grace S. Day, St. Joseph, Mo., F. H. Dillenbach, Troy, on the brief, for appellant.

Robert A. Reeder, County Atty., Troy, Harold R. Fatzer, Atty. Gen., on the brief, for appellee.

PARKER, Justice.

The defendant, James Peasley, was arrested, tried, convicted and sentenced on charges of burglary and larceny in connection with such burglary. He appeals from the judgment and sentence and from the order overruling his motion for a new trial.

In view of the issues presented on appellate review, and because the defendant introduced no contradictory testimony, detailed reference to the factual situation on which his conviction depends is neither necessary nor required. Therefore, without attempting to relate all the facts, which we readily conclude were sufficient to permit the question of defendant's guilt or innocence to go to the jury, we shall now give our version, based on evidence coming from the lips of disinterested witnesses and two persons participating in the crimes, of the facts essential to a proper understanding of what was before the jury and the trial court at the time of the rendition of the verdict and judgment.

Some time after 11 p. m. on the evening of Saturday, December 4, 1954, by previous conference and arrangement, the defendant and five other young men, all residents of St. Joseph, Missouri, left that city in an automobile and proceeded to Highland, Kansas, where they burglarized the Jay Hawk Cafe in which its then owner, one Mildred Miller, operated and eating establishment and maintained her living quarters. During the course of the burglary, in which all six men participated, a 17 inch Crosley TV set; a lady's wardrobe Samsonite suitcase; a set of plate silverware; a lady's yellow gold lapel watch; a travel alarm clock; five or six sets of costume jewelry; a yellow gold diamond wedding ring; and other items of personal property, owned by Miss Miller and on which she placed a true money value far in excess of $20, were taken from the restaurant building and placed in the automobile of the burglars, who then left Highland and returned to St. Joseph, where they went to an apartment, occupied by one of such burglars, and divided their loot.

Upon discovery of the burglary on the morning of Sunday, December 5, the authorities of Doniphan County reported it to the police department of St. Joseph, Missouri, and gave them a list of the items missing from the cafe. Thereafter members of such department recovered the Samsonite suitcase from a St. Joseph pawnshop and apprehended James Saale, the individual who pawned the suitcase. At the same time they apprehended Marty Holliday, Saale's room mate, and upon a search of Holliday's room found a colored celluloid sheet which Miss Miller subsequently identified as the covering which had been affixed to the face of her TV set at the time it was stolen. Later, and in the course of the trial, the Samsonite suitcase as well as the colored celluloid sheet were identified as property taken from the cafe on the date of the burglary.

Following apprehension of Saale and Holliday the St. Joseph police learned that Eugene Dotson had transported a group of young men from St. Joseph to Highland on the late evening of Saturday, December 4, in an automobile. With this information they apprehended Dotson who immediately confessed to having participated in the burglary and gave them information which implicated James and David Saale, Holliday, James McGinley and James Peasley, whom Dotson knew as Jimmy McKeevor. Thereafter all the individuals above mentioned were turned over to the Doniphan County authorities. Subsequently the defendant, James Peasley, was arrested, charged with the crimes heretofore indicated and, upon trial by a jury wherein the facts heretofore related and others to be presently mentioned were established by evidence, convicted and sentenced to the State Penitentiary for the commission of such crimes. This appeal followed.

Two errors assigned and argued by appellant relate to alleged erroneous admission of evidence during the course of the trial. The first is that the court erred in admitting evidence of his having been convicted of a similar crime, i. e., grand larceny. In this connection we pause to point out the record discloses that the court in admitting such evidence advised the jury that it was being admitted to show a predilection toward the sort of crime with which appellant was charged, to show a tendency along that line, and not for the purpose of proving his guilt or innocence of the crime in question. The second is that the colored celluloid sheet, to which reference is made in the preceding factual statement, was erroneously admitted because it was obtained by unlawful search and seizure.

It is not required that we labor either of the foregoing...