State v. Taylor

• Decision Date: 14 July 1973
• Docket Number: No. 46971,46971
• Citation: 212 Kan. 780,512 P.2d 449
• Parties: STATE of Kansas, Appellee, v. Charles TAYLOR, Appellant.
• Court: Kansas Supreme Court

Page 449

512 P.2d 449

212 Kan. 780

STATE of Kansas, Appellee, v. Charles TAYLOR, Appellant.

No. 46971.

Supreme Court of Kansas.

July 14, 1973.

Syllabus by the Court

1. A verdict can be properly interpreted by reference to the information, to the court's instructions and to the record; surplusage may be disregarded when the jury's verdict is otherwise responsive to the charge.

2. Error cannot be predicated on the refusal to give certain instructions if those given cover and include the substance of those which are refused.

3. A juror may not impeach his verdict on a ground inhering in the verdict itself; he may not divulge what considerations influenced him in arriving at his verdict or the reasoning on which he based his decision. (Following State v. Blocker, 211 Kan. 185, Syl. 11, 505 P.2d 1099.)

4. The mere fact that a juror who joins in a verdict later professes to believe the defendant innocent is no basis for ordering a mistrial.

5. Unless a defendant's substantial rights are prejudiced as a direct result of an unlawful arrest, his arrest will not deprive a court of jurisdiction or vitiate a subsequent conviction.

6. In a case involving circumstantial evidence, it is the duty of this court on appeal to determine whether there is a basis in the evidence for a reasonable inference of guilt.

7. On appeal from a conviction of a tenant or lodger for theft or embezzlement of a television set from a motel room under K.S.A. 21-548 (now repealed) the record is examined and it is held there is a basis in the evidence for a reasonable inference of guilt and no prejudicial error is found.

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

Max M. Hinkle, County Atty., argued the cause, and Vern Miller, Atty. Gen., was with him on the brief for appellee.

FROMME, Justice:

This is a direct appeal by Charles Taylor from a jury conviction of grand larceny by embezzlement in violation of K.S.A. 21-548 and from a sentence under K.S.A. 21-534(3) to the custody of the Kansas State Director of Penal Institutions for an indeterminate term of imprisonment not to exceed five years.

The case arose from the disappearance of a color television set and two towels from the White House Inn in Abilene in October, 1969. The evidence adduced at trial was sketchy and circumstantial. The state presented only two witnesses, Robert Schenk, the owner and manager of the motel, and JoAnne Johnson, a girl friend of appellant. The state's evidence was that appellant registered at the motel around 2:00 p. m. on Sunday, October 12, 1969, and was given room number 37. Appellant stated he planned to stay two or three days. Owner Schenk believed appellant was alone. Appellant used a false name, gave a false address in Rhode Island, claimed a fictitious employer and listed an out-of-state car license plate. Owner Schenk became aware of the subterfuge when he discovered a Riley County license plate and a Fort Riley registration sticker on the vehicle appellant was driving. Schenk could see Room 37 from the motel office. He observed appellant enter and leave the room several times during the afternoon and during one of these absences, Schenk entered Room 37 and noticed that the television set had been moved from its normal position onto a luggage rack. Around 9:00 p. m., Schenk again checked the room and saw the television back in its proper position. Schenk went home for the evening around 11:30 p. m. When he returned the next morning at 9:30 a. m., he checked Room 37 and found the television set and towels missing. The covers of the bed had not been pulled down. Appellant had not checked out of the motel. The vehicle driven by appellant was owned by JoAnne Johnson who lived in Ogden. She had loaned the vehicle to appellant on October 12, for the stated purpose of permitting him to go to Topeka to see his attorney. Appellant called Ms. Johnson between 9:00 p. m. and 10:00 p. m., and Ms. Johnson told him to return the car the following morning. Appellant picked Ms. Johnson up around 7:00 a. m. on Monday morning and drove her to Manhattan for a dental appointment and then on to her place of employment. Appellant kept the car all day Monday, picked Mr. Johnson up after work and returned with her to Ogden. There, they were met by police and consented to a search of the car which disclosed nothing. Neither the television set nor the towels were ever found.

Appellant testified that he had gone to the motel with a girl named Kathy whom he had met that Sunday morning while 'bar- hopping' through Junction City, where he lived. Appellant stated that he fell asleep in the motel room in Abilene around 5:00 p. m. and awoke around 8:30 p. m. to find that Kathy had gone. He stated he did not have the room key when he left and drove back to Junction City. He stopped to see a friend, Gary Price, who accompanied him to a restaurant where appellant called Ms. Johnson. Around 10:15 p. m. Price drove the car to Taylor's residence, locked the car and gave appellant the keys. Price testified to corroborate appellant's chronicle of activities between 9:00 p. m. and 10:15 p. m.

Appellant was charged with and convicted of violating K.S.A. 21-548, which prior to its repeal July 1, 1970, defined an offense as follows:

'If any tenant or lodger shall take away, with intent to embezzle, steal or purloin, any bedding, furniture, goods, or chattels or fixture, which by contract was let to him to be used by him in or with any house, apartment, room or lodging, whether the contract for letting shall have been made by such person or by any person on his behalf, he shall be adjudged guilty of larceny, and punished in the same manner prescribed by law for stealing property of the value of the articles so stolen, purloined or embezzled.' (Emphasis added.)

Appellant's statement of sixteen points on appeal has been consolidated into five separate arguments in his brief. We will address ourselves to these five points.

Appellant first claims the trial court lacked jurisdiction to accept the jury verdict because the jury found appellant guilty of an offense with which he was not charged. A conviction upon a charge not made in the information is a clear denial of due process. (State v. Minor, 197 Kan. 296, 146 P.2d 724.)

The jury in its verdict found appellant 'guilty of grand larceny as charged in the information.' The information charged in the statutory language of K.S.A. 21-548 that appellant did 'unlawfully, feloniously and willfully, take away, with intent to embezzle and steal, one television set and two hand towels . . .' The trial court in its instruction No. 3 informed the jury, without objection, that appellant was 'charged with the crime of grand larceny by embezzlement' and listed the necessary elements of the offense.

Appellant points out that this court has recognized the offenses of larceny and embezzlement are distinct crimes with different elements. (See State v. James, 157 Kan. 703, 143 P.2d 642 and State v. Piper, 206 Kan. 190, 477 P.2d 940.) He then argues that K.S.A. 21-548 is an embezzlement statute and that the jury verdict finding appellant guilty of larceny was not responsive to the charge. In State v. Piper, supra, the court held that K.S.A. 21-547 defining embezzlement by a bailee should be considered an embezzlement rather than larceny statute despite the fact that 21-547 contained the same language as does 21-548 that 'he shall upon conviction be adjudged guilty of larceny.' The felonious intent required by 21-547 is an 'intent to embezzle or convert to his own use' whereas 21-548 requires an 'intent to embezzle, steal or purloin.' Because 21-548 specifically refers to an intent to steal it might be distinguished from 21-547 and denominated a larceny statute. Such fine distinctions aside, appellant's argument overlooks the fact that regardless of whether K.S.A. 21-548 be generically described as an embezzlement statute or a larceny statute, the jury acted precisely as the statute commands. Having found the statutory elements of the crime were proven, the jury adjudged appellant guilty of larceny as directed in K.S.A. 21-548.

Further, the jury found appellant 'guilty of grand larceny as charged in the information.' The information contained only one count. This court has said that a verdict may be upheld when it simply states the defendant is found guilty as charged in the information, any surplus verbiage may be disregarded. In State v. Whiting, 173 Kan. 711, 252 P.2d 884, the defendant argued that the verdict was not responsive to the offense charged. This court rejected the argument as follows:

'The verdict found the defendant guilty of lewd conduct, 'all in the manner and form charged in the first count of the complaint.' The words of the charge were that 'defendant was . . . guilty of lascivious behavior.' The point made by defendant is that the statute says 'lewdness or lascivious behavior' while the verdict said 'lewd conduct.' He argues therefore that the verdict did not convict him of the offense charged. The verdict did find him guilty as charged in the first count. The difference between 'lascivious behavior' and 'lewd conduct' is too fine a distinction. At any rate, there was only one offense charged on this phase of the case. Actually the words 'lewd conduct' in the verdict were surplusage. The verdict would have been good if it had simply found the defendant guilty as charged in the first count of the complaint.' (p. 715, 252 P.2d p. 887.)

Similarly, in In re Lester, 128 Kan. 784, 280 P. 758, the petitioner contended the verdict of the jury was void because it found him guilty of an offense different from that with which he was charged. The court held:

'Where the information charges the defendant with having purchased and received stolen property knowing the same to have been stolen, and contains no reference to the property having been stolen in the nighttime, and the verdict of the jury finds ...