State v. Towner
| Decision Date | 09 November 1968 |
| Docket Number | No. 44747,44747 |
| Citation | 446 P.2d 719,202 Kan. 25 |
| Parties | The STATE of Kansas, appellee, v. Vernon TOWNER, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. Value, rather than form, is the distinguishing characteristic of property subject to grand larceny. The offense of grand larceny under K.S.A. 21-533 is predicated solely on the value of the property stolen, regardless of its form.
2. Before the first provision of K.S.A. 21-534 prescribing a more severe penalty for the stealing of an automobile becomes applicable, it must be established that the automobile stolen was of a value of $50.00 or more.
3. In a criminal prosecution wherein appellant was convicted of burglary in the second degree and larceny in connection with the burglary (count one), and of grand larceny of an automobile (count two), the record is examined and for reasons appearing in the opinion, it is held: (1) The trial court did not err in denying appellant's request for a continuance; (2) the prosecution's closing argument to the jury did not prejudicially affect appellant's substantial rights; (3) the evidence was insufficient to convict appellant of the offense of grand larceny under count two of the information but was sufficient to convict him of the lesser included offense of petty larceny, and appellant is ordered resentenced for the latter offense.
Robert H. Waters, Kansas City, for appellant.
Robert L. Serra, Asst. County Atty., and Robert C. Londerholm, Atty. Gen., and Frank D. Menghini, County Atty., on the brief, for appellee.
HARMAN, Commissioner:
Appellant was convicted by a jury of the offenses of burglary in the second degree, larceny of a television set in connection with the burglary (count one), and of larceny of an automobile (count two). A previous felony conviction being shown he was sentenced on the burglary charge to a term of not less than ten nor more than twenty years, on the larceny in connection with the burglary to a term of not less than ten years, and on the larceny of the automobile to a term of not less than ten nor more than thirty years, all sentences to run concurrently. He has appealed.
Appellant was charged jointly in the commission of these offenses with one Gerald Lee, also Known as Gerald El; however, the two were tried separately. Lee's conviction was recently affirmed by this court (State v. Lee, 201 Kan. 177, 440 P.2d 562).
We consider first two specifications of error directed against appellant's conviction of all offenses. Appellant insists the trial court erred in denying his request for a continuance. The record reveals the following occurring on the first day of trial, March 22, 1966:
Appellant argues the appointment of his attorney was made by the district court only fifteen days prior to commencement of trial and this allowed insufficient time for trial preparation. Appellant fails to inform this court that more than two months prior to trial in district court the same attorney was appointed for him in magistrate court to represent him upon preliminary examination, which was held. It is abundantly clear appellant's attorney was appointed a sufficient length of time prior to trial. Significantly, the request for continuance was made by appellant personally rather than by his attorney. Despite ample opportunity, appellant presented nothing tangible to support his request. The granting of a continuance in a criminal case is largely within the discretion of the trial court and its ruling will not be disturbed unless it affirmatively appears that such discretion has been abused to the extent defendant's substantial rights have been prejudiced (State v. Dickson, 198 Kan. 219, 424 P.2d 274). No prejudice resulting from the ruling is shown, and the specification of error cannot be sustained.
Appellant asserts prejudicial error in the prosecution's closing argument to the jury. He says he is a Negro and therefore the statements made were inflammatory and designed to raise prejudice in the minds of the jurors regarding the alleged connection of certain racial groups to a high incidence of crime in the local community. The remarks complained of were:
No objection to the argument was made at the time it occurred or in the motion for new trial. We have examined the entire argument for the prosecution. It contains no mention or insinuation of race, either directly or indirectly, and we cannot read into it an appeal to racial prejudice. A high crime rate...
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State v. Smith
...lesser offense. State v. Moss, 221 Kan. 47, 557 P.2d 1292 (1976); State v. Smith, 215 Kan. 865, 528 P.2d 1195 (1974); State v. Towner, 202 Kan. 25, 446 P.2d 719 (1968). The conviction is reversed, the sentence is vacated, and the case is remanded with directions to enter a new judgment conv......
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State v. Jones
...car's engine, body, brakes, or tires. To support this argument, defendant asserts that a similar situation occurred in State v. Towner, 202 Kan. 25, 446 P.2d 719 (1968), which involved a conviction of felony larceny of an automobile. Defendant attacked his conviction because no evidence was......
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State v. Johnson
...were pictures reflecting the condition of the car, although none showed the damage to the taillight. Johnson cites State v. Towner, 202 Kan. 25, 446 P.2d 719 (1968), as a case in which this court found the evidence of value wanting. Towner was convicted of grand larceny of an automobile. At......
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State v. Brown, 46517
...had not depreciated 87% in value in forty-three days. We are inclined to agree. Defendant relies principally on the case of State v. Towner, 202 Kan. 25, 446 P.2d 719, which involved the theft of an eight-year-old automobile. The only evidence of value was the make, year and model of the au......