State v. Smith

• Decision Date: 10 December 1977
• Docket Number: No. 48641,48641
• Citation: 573 P.2d 985,223 Kan. 192
• Parties: STATE of Kansas, Appellee, v. William F. SMITH, Appellant.
• Court: Kansas Supreme Court

Page 985

573 P.2d 985

223 Kan. 192

STATE of Kansas, Appellee, v.William F. SMITH, Appellant.

No. 48641.

Supreme Court of Kansas.

Dec. 10, 1977.

Syllabus by the Court

1.A statutory presumption that proof of one fact shall constitute prima facie evidence of another is rebuttable and governs only the burden of going forward with the evidence, not the ultimate burden of proof.Likewise, the use of a presumption to establish prima facie evidence does not destroy a defendant's presumption of innocence, nor does it invade the province of the jury as fact finders.

2.A statutory presumption will be upheld as constitutional if, in accordance with the experience of mankind, there is a natural and rational evidentiary relation between the fact proved and the one presumed; if the defendant has more convenient access to the evidence relating to the fact to be presumed; and if, by requiring defendant to go forward with evidence to rebut the presumption, he is not thereby being subjected to unfairness or hardship.(Following State v. Haremza, 213 Kan. 201, Syl. 3, 515 P.2d 1217.)

3. K.S.A. 21-3702(2), which provides that failure to return property within seven days after receiving a registered letter giving notice that said property has not been returned within ten days of the time required by the lease or rental agreement shall be prima facie evidence of an intent to permanently deprive the owner of the possession, use or benefit of said property, creates a constitutionally permissible statutory presumption.

4. K.S.A. 21-3702(1), which provides that use of a false name, address or place of employment in order to obtain control over property shall be prima facie evidence of an intent to permanently deprive the owner of the possession, use or benefit of said property, creates a constitutionally permissible statutory presumption.

Joseph D. Johnson, Asst. Public Defender of Topeka, argued the cause and was on the brief for appellant.

Donald P. Morrison, Asst. Dist. Atty., argued the cause, and Curt T. Schneider, Atty. Gen. and Gene M. Olander, Dist. Atty., were with him on the brief for appellee.

OWSLEY, Justice:

Defendant appeals from a jury conviction for theft (K.S.A. 21-3701).

The state's evidence revealed that defendant went to Noller Leasing Company in Topeka on September 17, 1975, and told the manager that he needed to rent a car because his car had been totaled out in an accident.Defendant told her the car would be paid for by his insurance company and gave her an address and place of employment, facts later shown to be false.The rental was arranged for one day, but was subsequently extended to September 25.Defendant failed to return the car and on October 10 the rental manager sent defendant a registered letter stating the car would be reported stolen if not returned within seven days.On November 6, defendant called Noller and advised the manager the car was parked in the Country Club Plaza area of Kansas City, Missouri.The car had been driven more than 4,000 miles at the time it was recovered.

Defendant's only complaint on appeal is in regard to the trial court's instruction to the jury on intent to deprive.The instruction, based on K.S.A. 21-3702, stated:

"Prima facie evidence of intent to permanently deprive owner or lessor of possession, use or benefit of property.(1) In any prosecution under this article, the following shall be prima facie evidence of intent to permanently deprive the owner or lessor of property of the possession, use or benefit thereof:

"(a) The giving of a false identification or fictitious name, address or place of employment at the time of obtaining control over the property; or

"(b) The failure of a person who leases or rents personal property to return the same within ten (10) days after the date set forth in the lease or rental agreement for the return of said property, if notice is given to the person renting or leasing said property to return said property within seven (7) days after receipt of said notice, in which case the subsequent return of said property within the seven-day period shall exempt such transaction from consideration as a prima facie evidence as provided in this section.

"(2) The word 'notice' as used herein shall be construed to mean notice in writing and such notice in writing will be presumed to have been given two (2) days following deposit of said notice as registered or certified matter in the United States mail, addressed to such person who has leased or rented said personal property as it appears in the information supplied by him or her at the time of such leasing or renting, or his or her last known address."

Defendant argues the instruction creates an impermissible presumption which denies the jury the right to determine intent and shifts the burden of proof upon defendant.A statutory presumption that proof of one fact shall constitute prima facie evidence of another is rebuttable and governs only the burden of going forward with the evidence, not the ultimate burden of proof.Likewise, the use of a presumption to establish prima facie evidence does not destroy a defendant's presumption of innocence.(State v. Powell, 220 Kan. 168, 551 P.2d 902.)In order to clarify these rules an instruction should be given on the meaning of "prima facie" as the trial court did in the instant case.

The rule governing the constitutionality of statutory presumptions was set forth in State v. Haremza, 213 Kan. 201, 515 P.2d 1217, where this court stated:

"The general rule universally applied throughout the United States is that a statutory presumption will be upheld as constitutional if, in accordance with the experience of mankind, there is a natural and rational evidentiary relation between the fact proved and the one presumed; if the defendant has more convenient access to evidence relating to the fact to be presumed; and if, by requiring defendant to go forward with evidence to rebut the presumption, he is not thereby being subjected to unfairness or hardship.(Torcia, Wharton's Criminal Evidence, 13th Ed., Vol. 1, § 94.)This court recognized and followed the rule in State v. Nossaman, 107 Kan. 715, 193 P. 347, where the following language is used in the opinion:

" '. . . It is competent for the legislature to make proof of one fact prima facie evidence of another fact essential to the guilt of the accused, where the fact presumed has a fair relation to or some natural connection with the fact to be proven.(State v. Sheppard, 64 Kan. 451, 67 P. 870;12 C.J. 1205.)The term prima facie evidence carries the inference that such evidence may be rebutted and overcome, and notwithstanding the rule, an accused has the opportunity to submit his evidence and make a full defense.The verdict must rest upon all the evidence which must establish his guilt beyond a reasonable doubt . . . .'(p. 721, 193 P. 347.)

"Comprehensive annotations on this subject may be found in 162 A.L.R. 495, 13 L.Ed.2d 1138, and in 23 L.Ed.2d 812.Numerous examples of statutory presumptions applicable in criminal cases which have been sustained as constitutional are set forth in Torcia, Wharton's Criminal Evidence, 13th Ed., Vol. 1, § 94, pp. 156 through 159.The rule has been applied by the United States Supreme Court in many cases among which are: Turner v. United States, 396 U.S. 398, 90 S.Ct. 642, 24 L.Ed.2d 610;Leary v. United States, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57;United States v. Romano, 382 U.S. 136, 86 S.Ct. 279, 15 L.Ed.2d 210;United States v. Gainey, 380 U.S. 63, 85 S.Ct. 754, 13 L.Ed.2d 658;andBarnes v. United States, 412 U.S. 837, 93 S.Ct. 2357, 37 L.Ed.2d 380."(p. 204, 515 P.2d p. 1221.)

Haremza involved an attack on the presumption of intent to defraud the recipient of a worthless check when it was established (1) that the defendant made or drew a check, (2) that payment for such check was refused by the bank because of insufficient funds, and (3) that the defendant failed to pay the amount due on the check with seven days after a registered letter informed defendant the check had not been paid by the bank.The seven-day notice provision (K.S.A. 21-3707(2)) was held to be constitutional.

Defendant argues Haremza is clearly distinguishable from this case.He claims 21-3702 unconstitutionally invades the...