State v. Ragland, 38072

• Decision Date: 06 January 1951
• Docket Number: No. 38072,38072
• Citation: 226 P.2d 251,170 Kan. 346
• Parties: STATE v. RAGLAND.
• Court: Kansas Supreme Court

Page 251

226 P.2d 251

170 Kan. 346

STATE v. RAGLAND.

No. 38072.

Supreme Court of Kansas.

Jan. 6, 1951.

Rehearing Denied Feb. 5, 1951.

Syllabus by the Court.

Record examined in a criminal action charging burglary and larceny based solely on circumstantial evidence, and held:

(a) Presumptions or inferences based upon presumptions or inferences are insufficient to meet the burden of proof resting upon the state in a criminal action (b) There is no evidence upon which an inference of defendant's guilt can be based.

Geo. K. Melvin, of Lawrence, argued the cause, and A. B. Mitchell, also of Lawrence, was with him on the briefs for appellant.

Robert B. Oyler, County Atty., Lawrence, argued the cause, and Harold R. Fatzer, Atty. Gen., C. Harold Hughes, Asst. Atty. Gen. and Milton P. Allen, Asst. County Atty., Lawrence, were with him on the briefs for appellee.

KAGEY, Justice.

This is an appeal by defendant from a conviction upon an information charging burglary and larceny.

The facts may be stated as follows: Complainant Leta Ingalls testified that she and her husband Harry Ingalls ran a restaurant and beer tavern in Lawrence, Kansas, known as Duck's Sea Food Tavern. The Ingalls had been separated and living apart for one or two years prior to November 22, 1949; Mrs. Ingalls lived at 913 Connecticut Street and did not know where her husband was staying, although they were operating the restaurant business daily as equal partners. About midnight November 22, 1949, one of the help at the tavern took Mrs. Ingalls from the tavern to her home at 913 Connecticut Street where she had been living in a two-story, seven-room house alone; formerly she had two roomers, but no-one had lived with her within six months preceding this date; on arriving home she went directly to her upstairs bedroom, placed her pocketbook under the bed, and retired for the night; after falling asleep, she was awakened sometime during the night thinking she heard a creak in the floor, but did not turn on the light and again fell asleep; the next morning she awoke, went to the downstairs bathroom and found her purse on the cloths hamper there; went upstairs to check her money and found that it had been stolen; she immediately called the police and when they arrived, advised them that $4000 had been taken from her; she thought the information later filed by the county attorney was correct; she went down to the police station with her husband and heard him report to police that the loss was $400; she had told them it was $4000, but after she checked 'she found out'; she made a claim for repayment on a burglary insurance policy for $250, which was all the insurance she had. She further testified that she had $2200 in currency in one billfold in her purse, consisting of one fifty dollar bill and the rest in crisp, rather new, twenty-dollar bills, all of which was her own personal money; she also had $1200 in currency in her purse consisting of tens, fives and one-dollar bills (the number of each denomination not mentioned) and also $60 to $100 in silver, all of which belonged to the business or partnership, which she handled as cashier; that she had been accumulating the $2200 over a period of ten years, had been carrying it around in her pocketbook off and on during that time, and had been so carrying it for more than a year last past; that she had intended to buy bonds; that she had a personal bank account, and there was no particular reason for carrying the money around in her purse; she did not think her husband had a bank account.

Police officers testified that when they went to the home of Mrs. Ingalls on the morning of November 22, 1949, they found the night lock on the front door had been jimmied and the door pried from its hinges and that it would not stay closed; they found an 'El Roi Tan' cigar band on the living room floor four or five feet from the front door; the officers further testified that on November 26, 1949, they saw defendant at a used car lot in Lawrence and later arrested him in the east part of the city while driving with his family in a 1933 Chevrolet automobile; they took defendant to the police station and made a search of defendant's car finding, among other things, children's clothing, a revolver, an automatic pistol, and under the dash of the automobile on top of the radio they found a money bag containing about $1200 in currency and silver consisting of one $50 bill and 59 twenty-dollar bills; that defendant stated he had won $4000 gambling from Fred Holloway; a search of the purse of defendant's wife at the police station revealed 22 ten-dollar bills, 10 twenty-dollar bills, and 45 five-dollar bills.

Mr. Barncord, a used car dealer, testified that about six weeks prior to November 22, 1949, the defendant purchased a 1933 Chevrolet from him for $85 with a down payment of $35, leaving a balance due of $50; that defendant failed to make his weekly payments; that on November 26, 1949, defendant talked to Mr. Barncord about buying a 1948 Buick; defendant gave Mr. Barncord $650 in five, ten and twenty-dollar bills; the Buick was priced at $1850, but defendant could not get the balance financed and the deal was terminated and the money returned. Barncord did prevail upon the defendant to pay the balance due on the Chevrolet by compromising for $40.

A used car dealer from Emporia, Kansas, testified that he sold defendant a 1942 Buick about fifteen or eighteen months before November 22, 1949, for $1450, and took a chattel mortgage on the car; that during the fall of 1949 he had seen defendant four or five times about the defaulted payments and that the balance due was $272.65; defendant's brother gave a check for the balance which was never honored by the bank; that he finally received the balance due from a used car dealer in Topeka, Kansas, shortly before November 22, 1949.

Fred Holloway, owner and operator of a pool hall in Lawrence, testified that he had known defendant about three years; had played cards with defendant two or three times a week and had lost $400 or $500 to defendant on different occasions but that he had not lost any money to him within three or four months prior to November 22; that defendant smoked several kinds of cigars including Roi Tans.

At the conclusion of the state's evidence, defendant interposed a demurrer on the ground that the state failed to produce any evidence on which the jury could base a verdict of guilty, and also moved the court to discharge defendant for the same reason. Both the demurrer and the motion to discharge were by the court overruled.

The only evidence offered by the defendant was the testimony of a Mr. Parker who stated that on August 17, 1949, defendant made a deposit of $100 on a new Buick automobile; that prior to October 28, 1949, defendant talked to him about delivery on an automobile; that he tried to take a credit statement from defendant and learned defendant had no job of any kind and that he could not finance the automobile; that defendant threw some money in a clip on the desk, but he had no idea how much it was; that he refunded the $100 deposit to defendant.

At the close of defendant's evidence, he moved for a directed verdict of not guilty, which motion was by the court overruled.

Defendant brings the case here and assigns as error among other specifications, the court's ruling on his demurrer and motion for discharge at the close of the state's case. Defendant predicates his argument on the fact that there was no...