State v. Shanahan

• Decision Date: 07 July 1923
• Docket Number: 24,879
• Citation: 114 Kan. 212,217 P. 309
• Parties: THE STATE OF KANSAS, Appellee, v. TOM P. SHANAHAN, Appellant
• Court: Kansas Supreme Court

217 P. 309

114 Kan. 212

THE STATE OF KANSAS, Appellee, v. TOM P. SHANAHAN, Appellant

No. 24,879

Supreme Court of Kansas

July 7, 1923

Decided July, 1923.

Appeal from Marion district court; CASSIUS M. CLARK, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. LARCENY--Automobile--Witness--Cross-examination on Collateral Issues. Where a party takes the stand as a witness his adversary has the right, on cross-examination, for the purpose of affecting his credibility, to inquire touching his past life and conduct, the limits of such inquiry being ordinarily within the discretion of the trial court.

2. SAME--Cross-examination of Witness Proper. The record examined and held that there was no undue latitude allowed the county attorney or abuse of discretion by the court in the cross-examination of the defendant.

3. SAME--Evidence Sufficient to Sustain Conviction. The evidence tending to establish the guilt of a defendant charged with the theft of an automobile examined and held sufficient to sustain a verdict of conviction.

4. SAME--Instructions. The instructions examined and found to have fairly presented all the material questions to the jury.

J. W Ward, and L. R. Fulton, both of Wichita, for the appellant.

C. B. Griffith, attorney-general, John F. Rhoades, assistant attorney-general, and Braden C. Johnston, county attorney, for the appellee.

OPINION

HOPKINS, J.:

The defendant appeals from a conviction of grand larceny of a Ford automobile, stolen from the streets of Florence, in Marion county, on the evening of January 11, 1923. Six days after the theft, defendant was arrested in Wichita, Kan., in possession of the car. At that time the motor number of 6,663,263 had been filed from its block and the number 6,841,547 had been stenciled in its place; a green sun visor had been placed on the car; the regular steering wheel had been removed, and a special steering wheel installed in its place; also, a meter had been placed on the car. There was evidence that the defendant had purchased, at Okarche, Okla., on January 3, 1923, a Ford coupe of the same model as the stolen car. The motor number of defendant's Oklahoma car was 6,841,547. Neither at the time of the defendant's arrest, nor afterwards, did he offer any explanation of his possession of the stolen car, except to say that he had used the Oklahoma car two or three times while in Wichita; that he knew nothing of any change of numbers or of equipment, and that he supposed it was his own car.

1. Complaint is made of misconduct of the county attorney in asking prejudicial questions of the defendant on cross-examination. It is well settled that when a party takes the stand as a witness his adversary has a right, on cross-examination, for the purpose of affecting his credibility, to inquire touching his past life and conduct, the limits of such inquiry being ordinarily within the discretion of the trial court. (The State v. Abbott, 65 Kan. 139, 69 P. 160; The State v. Pugh, 75 Kan. 792, 90 P. 242; Ramsey v. Partridge, 86 Kan. 398, 121 P. 343; Cockrill v. Railway Co., 90 Kan. 650, 136 P. 322; The State v. Moberly, 90 Kan. 837, 136 P. 324; The State v. Killion, 95 Kan. 371, 148 P. 643; Zinn v. Updegraff, 113 Kan. 25, 213 P. 816; The State v. Smith, ante, p. 186.)

In The State v. Abbott, supra, it was said:

"There is no better method of sifting the conscience and testing the veracity and credibility of a witness than by cross-examination, and there is abundant authority holding that for the purpose of impairing the credibility of the witness he may be cross-examined as to specific acts tending to discredit him, although such acts are irrelevant and collateral to the main issue." (p. 141.)

We have examined the record and are unable to say that there was any undue latitude allowed the county attorney or any abuse of discretion by the court. Many of the questions asked on cross-examination, to which objection is now made, were not objected to on the trial of the case. They were perhaps not regarded with so much seriousness by the defendant at that time. The defendant is precluded from objecting to the testimony for the first time in this court. (Hill v. Railroad Co., 113 Kan. 489, 215 P. 310, and cases cited.)

2. The defendant contends that the verdict was against the law and the evidence. He argues, that the automobile was taken from Florence, on the evening of January 11, and found in his possession six days later at Wichita--a distance of about sixty miles. He says practically the only testimony connecting him with the offense was the possession of the car six days after it was stolen; that there was no attempt to show that he had been in Marion county, on the date in question, nor that he had been absent from his home at the time of the larceny.

In the case of The State v. Bell, 109 Kan. 767, 201 P. 1110, it was said:

"It is argued that there is no evidence that Bell stole the car or that he was aware of its theft for some days after it was stolen. Bell's guilt was proved in the common and usual way that the guilt of most thieves is established--by showing the fact of the theft of the car and showing it to have been in his possession shortly after it was stolen, with no satisfactory explanation of such possession forthcoming from Bell consistent with innocence on his part.

. . . When the state has established a complete prima facie case against him, the defendant is under the necessity of combating that prima facie case or of incurring the risk of conviction. He can take his choice. If this be properly characterized as a shifting of the burden of proof, it arises from the stern necessities of defendant's predicament and not because of any arbitrary rule of law imposed on him. In The State v. Cassady, 12 Kan. 550, it was said: 'The possession of stolen property, recently after it was stolen, is prima facie evidence of guilt, and throws upon the possessor the burden of explaining such possession, and if unexplained may be sufficient of itself to warrant a conviction.' (Syl. P 5; see, also, The State v. McKinney, 76 Kan. 419, 91 P. 1068; The State v. White, 76 Kan. 654, 664, 92 P. 829; The State v. Jewell, 88 Kan. 130, 127 P. 608; The State v. Rice, 93 Kan. 589, 144 P. 1016; 4 Wigmore on Evidence, §§ 2485-2513.)" (p. 769, 771.)

There was no witness who saw the defendant in Marion on the day of the...