State v. Smith

• Citation: 149 P.2d 600,158 Kan. 645
• Decision Date: 10 June 1944
• Docket Number: 36088.
• Parties: STATE v. SMITH.
• Court: United States State Supreme Court of Kansas

149 P.2d 600

158 Kan. 645

STATE v. SMITH.

No. 36088.

Supreme Court of Kansas

June 10, 1944

Syllabus by the Court.

In prosecution for receiving stolen automobile tires, whether tires were received in county where accused was arrested tried, and convicted, was for jury.

The weight of evidence and credibility of witnesses are for jury and verdict supported by substantial competent evidence will not be disturbed on appeal for insufficiency of the evidence.

In prosecution for receiving stolen property, testimony of police officer regarding statements made to him by accused regarding his possession of part of stolen property, which conversation occurred before accused had been charged when he was not in jail and had not been brought before the examining magistrate, was properly admitted where there was no claim that statements were not freely made or that any improper means were responsible for his making them.

1. In a prosecution for receiving stolen property, where evidence pertaining to the locus of the offense was conflicting, the record is examined and held there was substantial competent testimony on which the jury could properly conclude such property was received in the county wherein the defendant was charged, arrested, tried, and convicted.

2. It is the function of the jury, not that of the court of appellate review, to weigh the evidence and pass upon the credibility of witnesses, and, if there is substantial competent evidence to support it, a verdict will not be disturbed on the ground the evidence was insufficient to support it.

3. The rule, that voluntary statements of a defendant amounting to a confession or an admission against interest are admissible in evidence, is followed and approved.

Appeal from District Court, Neosho County; LeRoy Bradfield, Judge.

Holbert Smith was convicted of receiving stolen automobile tires of a value in excess of $20, and he appeals.

Thomas C. Forbes, of Eureka (T. R. Evans, of Chanute, on the brief) for appellant.

A. B Mitchell, Atty. Gen., and Wm. P. Timmerman, Asst. Atty. Gen. (Robert N. Allen, Co. Atty., of Chanute, on the brief), for appellee.

PARKER Justice.

The defendant was charged with the crime of receiving stolen personal property, namely, automobile tires, of a value in excess of $20. He was convicted of that offense and appeals.

The two questions presented for appellate review are whether the trial court (1) had jurisdiction to try the defendant for the crime charged in Neosho county, or (2) erred in admitting the evidence of a police officer who testified relative to certain statements made by the defendant to him regarding his possession of a part of the stolen property.

Preliminary to consideration of the issues, it will be helpful to relate the incidents leading up to the transaction which resulted in the arrest of the defendant.

On the evening of the 31st day of July, 1943, one Albert Washington, a colored boy, about 18 years of age, purloined 12 automobile tires of the actual value of between $18 and $20 each from a garage in the city of Iola. He then loaded his loot in a borrowed automobile and proceeded to the city of Chanute where he sold two tires to an unknown individual. Shortly after midnight he picked up another colored boy, about his age, an acquaintance named Allen, and the two of them went to the home of the defendant. Washington, who seemed to be unacquainted with the defendant, remained in the car in front of the house while Allen went in to talk to him. The witnesses were not in accord on the subject but it appears that after Allen had induced the father of the defendant to arouse him from sleep the latter got out of bed and went out to the car where a conversation took place between him and Washington regarding the sale and disposal of the 10 tires. At any rate, thereafter, Washington and Allen left the defendant's home and proceeded to a point west of the Chanute airport, the exact location of which will be more fully described presently. They stopped at this point and after waiting a few minutes the defendant drove up behind them. The tires were then transferred to defendant's automobile. Shortly thereafter, Washington and the defendant, in the latter's car, proceeded to a farm house which is conceded to have been located in Wilson county where 7 of the tires were disposed of for the sum of $62. After the sale the two then drove back to the Smith home where the 3 remaining tires were left in the defendant's possession and later found by the officers of Neosho county.

The defendant was arrested on August 1, 1943, and lodged in the Chanute city jail, where he was held for 2 or 3 days and then removed to the county jail at Erie. No complaint was filed againt him until August 4, 1943, when he was charged with the crime of receiving stolen property.

Now that the facts leading up to the arrest of defendant, and about which there is no serious controversy, have been established, we direct our attention to controverted evidence, material to disposition of the issues here involved.

At the trial Washington, who had been convicted and sentenced for the part he had played in the tire transaction and was then serving his sentence in the Kansas State Industrial Reformatory at Hutchinson, was called as a witness. He was the only witness for the state on the question of locus of the offense and testified the transfer of the tires from his automobile to the one driven by the defendant took place one and one-half blocks west of the stretch of the blacktop highway beginning at the northwest corner of the Chanute airport. It was admitted by counsel for defendant in open court that this point would be within the limits of Neosho county. On this specific question the defense produced 2 witnesses, Allen and the defendant himself, each of whom stated the transfer took place further west on the highway out of Chanute and at a point which would have been located in Wilson county. In addition, in an attempt to weaken the testimony given by Washington, who prior to his conviction and sentence to the Reformatory had testified at defendant's preliminary examination, the defendant produced a transcript of the evidence given by this witness on that occasion which contained a statement that the transfer of tires was not made in Neosho county. However, so far as this statement is concerned, it should be stated that Washington, who was interrogated regarding it on cross-examination denied any recollection of having given any such answer.

Notwithstanding the sharp conflict in the evidence with respect to the place of the transfer and delivery of the tires, and the apparent discrepancy in the testimony of Washington at the preliminary and at the trial on that question, the jury when the case was submitted to it for determination found the defendant guilty of receiving stolen tires in Neosho county.

Appellant points out the conflict in the evidence heretofore referred to, and, while frankly recognizing the doctrine that questions of fact, supported by competent evidence, will not be disturbed on appellate review when they have been passed upon by a jury, contends that under the circumstances of this case the rule should not be applied. He insists the trial court committed error in refusing to sustain his motion for a directed verdict of not guilty based on the ground that the state had failed to prove or produce evidence establishing venue in Neosho county. The proposition advanced by appellant is interesting even though it cannot be upheld. There was definite, specific and competent testimony on the part of the witness Washington as to where the transfer of the tires was made and the jury as the trier of the facts had a right to accept his statement as true notwithstanding it was refuted by the testimony of other witnesses.

This court has long been committed to the rule it is the function of the jury, not that of the court of appellate review, to weigh the evidence, or pass upon the credibility of witnesses and that where there is any substantial competent evidence to support it, a verdict will not be disturbed on the ground of insufficiency of the evidence. State v. Morrison, 115 Kan. 200, 222 P. 87; State v. Wood, 145 Kan 730, 67 P.2d 544; State v. Edwards, 151 Kan. 365, 99 P.2d 836; State v. Klein, 154 Kan. 165, 117 P.2d 575; State v. Thomas, 155 Kan. 374, 125 P.2d 375; and State v. Dodd, 156 Kan. 52, 131 P.2d 725. Measured by the rule just announced it must be conceded, in fact it...