State v. Singleton, 46822

• Decision Date: 09 December 1972
• Docket Number: No. 46822,46822
• Citation: 504 P.2d 224,210 Kan. 815
• Parties: STATE of Kansas, Appellee, v. Jefferson SINGLETON, Appellant.
• Court: Kansas Supreme Court

Page 224

504 P.2d 224

210 Kan. 815

STATE of Kansas, Appellee, v. Jefferson SINGLETON, Appellant.

No. 46822.

Supreme Court of Kansas.

Dec. 9, 1972.

Syllabus by the Court

1. Where the facts of an aggravated robbery have been otherwise placed in evidence the giving of an instruction on the inference to be drawn from the defendant's unexplained possession of recently stolen property taken in such robbery is not erroneous.

2. In an appeal from a conviction and sentence for aggravated robbery (K.S.A.1971 Supp. 21-3427) the record is examined and it is held, (1) there was substantial relevant evidence in the record to support the conviction, (2) the giving of an instruction on the unexplained possession of recently stolen property was not prejudicial error and (3) the conviction and sentence is affirmed.

John E. Pyles, Wichita, argued the cause and was on the brief for appellant.

Edward J. Hund, Jr., Deputy County Atty., argued the cause, and Vern Miller, Atty. Gen. and Keith Sanborn, County Atty., were with him on the brief for appellee.

FROMME, Justice.

Jefferson Singleton appeals from a conviction and sentence for aggravated robbery as defined in K.S.A.1971 Supp. 21-3427. He was convicted by a jury and sentenced by the court to imprisonment for not less than 25 years nor more than life. The sentence was imposed after proof of prior felonies.

On appeal appellant questions the general sufficiency of the evidence to support a conviction and attacks the giving of an instruction on the unexplained possession of recently stolen property.

A recitation of the facts established in the evidence is necessary. Steen's IGA Foodstore in Wichita was robbed by three black male individuals at 2:15 a. m. on January 20, 1971. A store clerk testified that appellant was one of the three robbers. One of the robbers stuck a gun in the clerk's back and demanded the money in the cash register. The clerk complied and turned over seventy dollars in currency. The men left the store and the clerk activated a burglary alarm which immediately alerted the police. A policeman, while en route to the store in answer to the alarm, intercepted a large black car which ran a stop sign and passed in front of him at a high rate of speed six blocks from the scene of the robbery. The car was driven by the appellant. During the high speed chase which followed an object was thrown from appellant's vehicle at a point where a pistol was later found. During the chase several patrol cars began converging on the general area and a police helicopter was called in with a spotlight to follow the chase and to illuminate the area. Appellant finally stopped his vehicle. He and one other individual left the vehicle and fled on foot. Some of the officers who had arrived on the scene followed the fleeing individuals while other officers arrested a man and a woman in the getaway car. The woman was identified as having entered the store to purchase cigarettes shortly before the robbery occurred.

The appellant and the other individual who fled on foot were apprehended. When caught the appellant threw his hands upward releasing currency which scattered on the ground. The currency was retrieved. It was in small bills totaling seventy dollars, the exact amount taken in the robbery.

It is difficult to determine the precise nature of appellant's complaint on the sufficiency of the evidence. The error claimed is-'Erroneous eyewitness testimony causing a wrongful conviction.'

Appellant was permitted to conduct lengthy cross-examinations of the witnesses which examinations should have indicated to the jury any flaws in their testimony. The testimony of eyewitnesses, who have had a reasonable opportunity to discern the facts of a crime and to learn the identity of the person committing the crime, is clearly relevant testimony. The weight to be given such testimony and the credibility to be accorded eyewitnesses rest within the province of the jury and not the trial or appellate courts. A verdict supported by substantial relevant evidence will not be disturbed by this court on the grounds of insufficiency of the evidence. (State v. Townsend, 201 Kan. 122, 439 P.2d 70; State v. Wade, 203 Kan. 811, 457 P.2d 158.)

The final point of error raised by the appellant relates to the following instruction given to the jury:

'The unexplained possession of recently stolen property, when taken in connection with other criminating circumstances, may raise a presumption sufficient to warrant conviction of robbery. But the mere possession of recently stolen property, without any other facts indicative of guilt, is not prima facie evidence that the possessor is guilty of robbery.

'However, such possession, to warrant a conviction by reason thereof, must have been so soon after the time of the commission of the robbery as to render it morally certain that such possession could not have changed hands since the commission of such robbery.

'The question of whether the defendant has possession of recently stolen property, and whether the property was stolen by the defendant are also questions for the Jury to determine from all the evidence admitted in the trial.'

Although a good argument may be made under the facts of this case that this instruction on the unexplained possession of recently stolen property was not helpful to the jury and should not have been given, the real question is whether such an instruction when given constitutes prejudicial error. The property stolen was established to be seventy dollars in currency or bills. The accused was intercepted in flight six blocks from the scene of the robbery. After a high speed chase the accused was apprehended and at the time of...