State v. Roberts

• Citation: 210 Kan. 786,504 P.2d 242
• Decision Date: 09 December 1972
• Docket Number: No. 46790,46790
• Parties: STATE of Kansas, appellee, v. John Doyle ROBERTS, Appellant.
• Court: United States State Supreme Court of Kansas

Page 242

504 P.2d 242

210 Kan. 786

STATE of Kansas, appellee, v. John Doyle ROBERTS, Appellant.

No. 46790.

Supreme Court of Kansas.

Dec. 9, 1972.

Rehearing Denied Jan. 19, 1973.

Syllabus by the Court

1. A person who claims no interest in an automobile, either of a proprietary or possessory character, has no standing to invoke the constitutional guarantee of immunity from unreasonable search and seizure, following State v. Edwards, 197 Kan. 146, 415 P.2d 231.

2. Although the 'implied admissions doctrine' supplies the basis for an inference that the possessor stole the property, it does not supply a basis for an inference that the property was taken in a particular manner or at a particular time.

3. The 'single larceny odctrine' permits a trier of fact to consider a series of larcenies, embezzlements, or other thefts to be the result of a single larcenous scheme.

4. When property is stolen by a succession of takings from the same owner and from the same place, each taking is a separate crime if it results from a separate impulse or intent. However, if it appears that a single incriminating impulse of intent is involved in the successive takings, they constitute a single larceny.

5. When a jury might reasonably conclude that the theft of several items of property did not result from a single continuing criminal impulse or intent and the value of each of said items is not sufficient to sustain a conviction of grand larceny, an instruction on petty larceny should be given.

6. The theft of property of one person at one place, and afterward the theft of property of another person at another place, and so on, constitutes as many crimes as there are several and distinct thefts, and the prosecution for one theft does not place the accused in jeopardy for the other thefts.

John C. Humpage, of Humpage & Stewart, Topeka, argued the cause and was on the brief for appellant.

John Mike Elwell, County Atty., argued the cause, and Vern Miller, Atty. Gen., was with him on the brief for appellee.

OWSLEY, Justice.

This is an appeal from a conviction on two counts of grand larceny (K.S.A. 21- 533). Defendant was committed to the Kansas State Penitentiary for confinement according to law. He was released on bond pending an appeal to this court.

On November 6, 1969, the defendant and John M. Kearns were stopped by Officer Miguel B. Garcia in Lawrence, Kansas. The automobile in which they were riding fit the description of an automobile being sought in connection with a theft of shoes from the Lawrence Pay-Less Shoe Store. Kearns was driving and the officer asked him for his driver's license which he was unable to produce. The officer then advised Kearns he was going to issue a ticket for driving without a license. During this exchange, and while standing outside the automobile, Officer Garcia observed some shoes and drills in cardboard boxes in the back seat of Kearns' car, and some records in the front seat. All this time the defendant was seated in the front seat of the Kearns automobile.

A clerk from the shoe store identified both the defendant and Kearns as being the same persons who had taken the shoes. Officer Garcia then placed both the defendant and Kearns under arrest for the theft of the shoes. At the sence of the arrest, Officer Lemon observed two drills in the back seat and a stack of records on the front seat of the automobile. After Officer Lemon received express permission from Kearns to drive the automobile to the station, the defendant and Kearns were removed to the Lawrence police station by Officer Garcia. Officer Lemon then took custody of the car and the merchandise within it and, pursuant to Kearns' permission, he drove the automobile to the police station. When Officer Lemon arrived at the station about ten or fifteen minujtes after leaving the scene of the arrest he removed the merchandise from the automobile.

Subsequently, it was determined that the two drills were missing from the Coast -to-Coast Store in Lawrence, and that the records (83) were from the Kroger Family Center in Lawrence. The defendant and Kearns were charged in two counts with the theft of the drills and the records by complaint on November 7, 1969, and were arrested on the same day.

The defendant was charged with petty larceny in connection with the theft of the shoes and he entered a plea of guilty on December 23, 1969, in the municipal court.

The defendant filed several pretrial motions including a motion to suppress, motion to discharge, motion to dismiss and abate, and a motion for specific findings of fact and conclusions of law, all of which were overruled. All of the motions were renewed just before trial and again overruled.

At the trial all of the above facts concerning the defendant's arrest and the seizure of evidence were developed by testimony. Other evidence at the trial revealed that the 83 records, state's Exhibit No. 3, were definitely from the Kroger Family Center, based upon the indentification of tags on each individual record which are unique to that store. The value of the records was set tetween $160.00 and $200.00, and although the identifying witness, Larry Leffingwell, manager of the Kroger Family Center, could not determine whether specific records were missing, to his knowledge 83 records were not sold on November 6, 1969, and he believed the records were stolen. Leffingwell indicated an individual purchasing 83 reocrds would be given a receipt and such a receipt would be lengthy. State's Exhibit No. 3 was received into evidence over the defendant's objection.

The trial also revealed that the two drills found in the car in which the defendant was a passenger, state's Exhibits No. 1 and No. 2, were definitely from the Coast-to-Coast Store and that they were missing on November 6, 1969. Robert Zimmerman, owner and manager of the Coast-to-Coast Store identified the drills, and the witness also indentified Kearns as being the person he saw on November 6, 1969, in the front of his store where the drills were kept. The value of the drills was placed at $27.00 each. The state's Exhibits No. 1 and No. 2 were received into evidence over the defendant's objection.

The state rested and the defendant moved for a judgment of acquittal. The defendant renewed his motion for acquittal after presenting two defense witnesses. Both motions were overruled. All of the points raised by the defendant were renewed in his motion for a new trial.

The defendant first argues that the court erred in overruling defendant's pretrial motion to suppress evidence seized without the benefit of a search warrant, from the automobile in which defendant was a passenger. The defendant cites such cases as Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889; Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed. 2d 419, reh. den. 400 U.S. 856, 91 S.Ct. 23, 27 L.Ed.2d 94; Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed. 2d 564, reh. den. 404 U.S. 874, 92 S.Ct. 26, 30 L.Ed.2d 120; Jones v. United States, 357 U.S. 493, 78 S.Ct. 1253, 2 L.Ed.2d 1514; Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782; Harris v. United States, 331 U.S. 145, 67 S.Ct. 1098, 91 L. Ed. 1399, reh. den. 331 U.S. 867, 67 S.Ct. 1527, 91 L.Ed. 1871; Abel v. United States, 362 U.S. 217, 80 S.Ct. 683, 4 L.Ed.2d 668, reh. den. 362 U.S. 984, 80 S.Ct. 1056, 4 L. Ed.2d 1019.

Defendant argues that from these decisions the search and seizure in this case was invalidated because the officers had no probable cause to believe the property was contraband, the seizure of the property was not incident to a lawful arrest, the seizure of the property was in no way connected with the arrest which was made, and there were no exigencies in connection with the incident which supported a warrantless search and seizure. Despite defendant's able presentation of this point, we are controlled by State v. Edwards, 197 Kan. 146, 415 P.3d 231. The factual situation in the instant case is similar to Edwards, where we said:

'The car which was the object of the search and which yielded the purloined property was McGuire's, not the defendant's. It was neither owned by Edwards nor was it in his possession or under his control. Edwards did not claim any interest in the car or in the property taken therefrom. Consequently, he may not be heard to protest the search.' (P. 147, 415 P.2d p. 232.)

See, State v. Summer, 210 Kan. 802, 504 P. 2d 239, this day decided.

We should point out that the defendant was a passenger in a car driven by the owner. He claimed no ownership or interest in the automobile and likewise claimed no ownership or interest in the property found in the automobile. We can draw no distinctions between the facts in Edwards and the facts in this case. The trial court did not err in failing to suppress this evidence.

Defendant complains of the use of the so-called 'implied admissions' theory to establish corpus delicti in this case. This is anothere name for the theory, long followed in Kansas, that unexplained possession of recently stolen property provides the basis for an inference that the possessor is also the thief. The 'unexplained possession' rule or 'doctrine of...