State v. Rice

• Decision Date: 12 December 1914
• Docket Number: 19,421
• Citation: 144 P. 1016,93 Kan. 589
• Parties: THE STATE OF KANSAS, Appellee, v. WILL RICE, Appellant
• Court: Kansas Supreme Court

144 P. 1016

93 Kan. 589

THE STATE OF KANSAS, Appellee, v. WILL RICE, Appellant

No. 19,421

Supreme Court of Kansas

December 12, 1914

Decided July, 1914.

Appeal from Bourbon district court; CHARLES E. HULETT, judge.

Judgment reversed.

SYLLABUS

SYLLABUS BY THE COURT.

1. BURGLARY--Unexplained Possession of Stolen Goods. Proof that a burglary was committed and that the stolen goods were shortly thereafter found in the possession of the accused, when considered in connection with all the other facts and circumstances of the case, including his failure satisfactorily to explain such possession, will sustain a conviction of burglary.

2. SAME--Conviction of Burglary in the Nighttime--Insufficient Evidence. The defendant was convicted of burglary in the nighttime without evidence showing at what time the offense was committed. Burglary in the daytime being the lesser of the two offenses, the presumption in favor of the appellant is that it was committed in the daytime, and for this reason the judgment is reversed and a new trial ordered.

Charles A. Blair, of Fort Scott, for the appellant.

John S. Dawson, attorney-general, and S. N. Hawkes, assistant attorney-general, for the appellee.

OPINION

PORTER, J.

The appellant was charged with the crime of burglary in the nighttime. The jury returned a verdict of guilty. The court overruled a motion for a new trial and rendered judgment on the verdict. In his appeal it is urged that the verdict is contrary to the law and the evidence.

The state proved that sometime between Tuesday or Wednesday and the following Sunday morning some one broke open the kitchen door of a dwelling house belonging to Mrs. Funkhouser, in the city of Fort Scott; that certain property belonging to her, consisting of a revolver and some canned fruit, was stolen and carried away. There was evidence showing that the missing property was found in the possession of the appellant. The officers made a search of his house on Monday, during his absence, and found some canned fruit covered with a blanket at the foot of a bed, and some more fruit was found covered up behind a trunk. A revolver, which Mrs. Funkhouser identified as belonging to her and as the one taken from her house, was found in appellant's bed under a pillow. The officers testified that they started to the coal bank to arrest the appellant and met him coming toward town; that at first he said he did not have any revolver, but when they showed him the revolver in question he said, "How did you get into my house?" This was about all that was said at the time he was arrested.

The appellant in his testimony explained where he had been on Saturday, January 3, and on the night of that day until about midnight when he said that he came home and went to bed, and did not get up next morning until about nine o'clock; that he was told at the coal bank Monday that the officers were looking for him. In reference to the property, he testified as follows:

"The revolver here in evidence with a black handle and white barrel is mine. It is a .32 caliber revolver. Last fall a white man came through town and I traded him an old set of harness for this revolver, and I have had it ever since. All this canned fruit here in evidence is also mine. My mother and Mrs. Coates put up some of it for me two years ago, and I put up the balance myself last year. I learned from my mother and Mrs. Coates how to put up fruit, and last fall I bought some peaches of Mrs. Kellar. I have not been in Mrs. Funkhouser's house for several months, and I never broke into her house on the 3rd of January or at any other time."

The first contention is that the possession of recently stolen goods without other criminating circumstances showing guilt is insufficient as a matter of law to sustain a conviction of burglary. It is insisted that in the present case there are no criminating circumstances indicating guilt, and nothing in the evidence to connect appellant with the crime, save and except the possession of the goods; that his explanation, which the jury rejected, even if unsatisfactory, could not put him in a worse position than no explanation at all. The authorities cited by the appellant hardly sustain his contention. In fact, they are in accord with the well-settled rule that the possession by the accused of property recently stolen on the occasion of a burglary is sufficient to sustain a conviction of burglary where a satisfactory explanation is not given. Counsel quote from Underhill on Criminal Evidence, a part of which reads as follows:

"The true rule doubtless is that the mere possession of stolen property creates no presumption of law that the person in whose possession it was found committed the burglary in which they were taken. The possession is a circumstance to go to the jury, and its weight is for them. The corpus delicti of the burglary, that is, the breaking in and entering, must be proved by independent evidence and can not be presumed from evidence of mere possession. If it appears that a burglary was in fact committed, the possession by the accused is a circumstance from which, in connection with all the evidence, the jury may presume as a matter of fact that he committed it." (p. 441.)

Also the following from the opinion in The State v. Powell, 61 Kan. 81, 58 P. 968:

"The possession of stolen goods taken on the occasion of a burglary is evidence tending to establish the guilt of the possessor, and may, when taken in connection with other criminating circumstances, raise a presumption of guilt sufficient to warrant a conviction, but the mere possession, without any other facts indicative of guilt, is not prima facie evidence that such person committed a burglary." (p. 86.)

Other authorities cited by counsel go no further than to hold that whether or not the explanation is a reasonable one is a question for the jury to determine.

In The State v. Powell, supra, an instruction was held bad which charged that the unexplained possession of property recently stolen is prima facie evidence of the burglary charged. It was said in the opinion:

"It has been frequently held in this state that such possession unexplained, is prima facie evidence of larceny, but the instruction goes close to, if it does not pass over, the danger line when it throws the burden on the defendant of proving how he came into possession of the property. The burden of proof is upon the state, and does not shift or change to the defendant at any stage of the case. Many of the late authorities incline to treat such possession as a disputable, rather than a conclusive presumption, holding that it should be received as tending to prove the guilt of the defendant, but that the force and effect of the evidence is for the determination of the jury, when considered in connection with all the other...