State v. Piland, 47721
| Decision Date | 17 July 1975 |
| Docket Number | No. 47721,47721 |
| Citation | 538 P.2d 666,217 Kan. 689 |
| Parties | The STATE of Kansas, Appellee, v. Donald J. PILAND, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. Points of error which are neither briefed nor argued on appeal will be considered as having been abandoned.
2. The joinder for trial of two or more criminal offenses alleged in a single information is largely a matter resting within the sound judicial discretion of the trial court and its judgment thereon will not be overturned in the absence of an abuse of discretion.
3. Where, in a prosecution for theft under K.S.A. 21-3701 (Weeks 1974), the value of the property stolen is in issue, the trial court should instruct the jury with respect to the element of value and should require the jury to make a finding as to value.
4. The record is examined in an action wherein the defendant was charged with two counts of burglary and one count of theft and for reasons set forth in the opinion it is held (1) the trial court did not err in joining the counts for trial and (2) the court erred (a) in failing to instruct as to value in connection with the charge of theft and (b) in sentencing the defendant for felony theft of property.
Michael B. Roach, Wichita, argued the cause and was on the brief for appellant.
Clifford L. Bertholf, Asst. Dist. Atty., argued the cause and Curt T. Schneider, Atty. Gen., Keith Sanborn, Dist. Atty., and Stephen M. Joseph, Asst. Dist. Atty., were with him on the brief for appellee.
The defendant, Donald J. Piland, was convicted of two counts of burglary and one count of theft of property of a value of fifty dollars ($50) or more. He was sentenced to three concurrent terms of not less than three (3) nor more than ten (10) years, and he has appealed.
Most of the facts are undisputed. On March 25, 1974, the Allison Junior High School building of Wichita was entered. A vending machine which was located in a closet in the building and which contained money, candy, cookies and gum was pried open and many of its contents were missing. A fingerprint identified as Mr. Piland's was found on the coin box.
On April 17, 1974, the same junior high school building was entered through a broken window in the school library and the defendant was found crouched underneath a row of desks. Three of his fingerprints were found on and about the broken window.
In explanation of his presence beneath the library desks, Mr. Piland testified he was walking down the street when he saw two young guys go up the fire escape and into the building; that he was going to tell them they had better get out because he didn't want to see them get into trouble; that he went the same way they did and over the roof and there was a broken window and he went in; that he heard foot-steps and people running outside; that he heard a 'copter overhead and looked out and saw a policeman; that he didn't want to get shot so he went under a desk, where he was found. The defendant further testified he had never been in the Allison Junior High School building prior to April 17, 1974, and he knew not how his fingerprints happened to be on the coin box of the vending machine.
Three points are fingered in Mr. Piland's statement of points. In summary, they recite that the trial court erred in the following particulars:
1. Failing to separate the charges for trial.
2. Failing to instruct the jury as to value.
3. Refusing to discharge the defendant at the close of the state's case for lack of evidence.
The defendant has neither briefed nor argued the third point and we assume it has been abandoned-as well it might have been, considering the content of this record. This court has held that points which are neither briefed nor argued on appeal will be considered abandoned. (Intercontinental Leasing, Inc. v. Lehr, 209 Kan. 132, 136, 495 P.2d 900; Vickers v. Wichita State University, 213 Kan. 614, 616, 518 P.2d 512.) We shall spend no further time on point number three.
Did the court err in trying the defendant on all three chrages at a common trial? First of all, we should note the record discloses no request by the defendant to separate the charges for trial. It is a rule of long standing that matters not presented to the trial court are not to be considered on appellate review. (See cases in 1 Hatcher's Kansas Digest (Rev Ed.) Appeal & Error, § 304.) Nonetheless, we shall comment briefly on the point.
K.S.A. 22-3202 (Weeks 1974) provides that two or more crimes may be charged against an accused in the same information where they are of same or similar character or are based on the same act or transaction or on two or more acts constituting a common scheme or plan. In State v. Thomas, 206 Kan. 603, 609, 481 P.2d 964, we said the statute codified the prior case law existing in this jurisdiction. In a somewhat earlier case, State v. Caldrone, 202 Kan. 651, 653, 451 P.2d 205, we said the joinder of separate felonies in a single information is largely a matter resting within the sound judicial discretion of the trial court.
We find no abuse of discretion on the part of the trial court in trying the offenses together in this case. They were of the same general character, they occurred within a short space of time and they were committed at the same school building. Clearly, they fall within the guidelines set both by the statute and by former decisions of this court. (State v. Lamb, 209 Kan. 453, 470, 497 P.2d 275.)
Defendant's second point gives us greater pause. In instruction No. 2, the trial court charged the jury in part as follows:
'To establish this charge, each of the following claims must be proved:
With the exception of names, dates and places, the foregoing portion of instruction 2 was taken verbatim from PIK Criminal No. 59.01.
To the instruction the defendant duly objected. He complains it failed to include a necessary element of felony theft, i. e., that the property taken be of the value of fifty dollars ($50) or more, and he asserts that the omission prejudiced his right to have the jury determine the value of the...
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