State v. Wilkins

Decision Date15 June 1974
Docket NumberNo. 47344,47344
PartiesSTATE of Kansas, Appellee, v. Frank WILKINS, Appellant.
CourtKansas Supreme Court

Syllabus by the Court

1. Possession by an accused of property recently stolen in a burglary is sufficient to sustain a conviction of burglary and theft where satisfactory explanation for such possession is not given.

2. This state's policy interest in protecting the confidentiality of a juvenile offender's record as expressed in K.S.A. 38-801 et seq., must yield to the right of effective cross-examination to test the credibility of a witness by reason of Section 10, Bill of Rights, Constitution of the State of Kansas and the Sixth Amendment to the Constitution of the United States.

3. In summing up a case before a jury, counsel may not introduce or comment on facts outside the evidence, but reasonable inferences may be drawn from the evidence and considerable latitude is allowed in the discussion of it in which he may use illustrations and appeal to the jury with all the power and persuasiveness which his learning, skill and experience enable him to use. (Following State v. Potts, 205 Kan. 47, 468 P.2d 78.)

4. The probative values of direct and circumstantial evidence are intrinsically similar and there is no logically sound reason for drawing a distinction as to the weight to be assigned to each.

5. A proper instruction on 'reasonable doubt' as applied to all kinds of evidence gives the jury an appropriate standard upon which to make a determination of guilt or innocence; to instruct further on the probative force of circumstantial evidence is to invite the confusion of semantics; disapproving statements to the contrary found in State v. Skinner, 210 Kan. 354, 362, 503 P.2d 168, State v. Hale, 207 Kan. 446, 450, 485 P.2d 1338, and in any other decision of this court contra to our holding in the instant case.

6. An instruction on circumstantial evidence, which cautions the jury that a defendant should not be found guilty unless the facts and circumstances proved exclude every reasonable theory of innocence or states that the jury cannot convict the defendant on circumstantial evidence unless the circumstances exclude every reasonable hypothesis of his innocence, is unnecessary when a proper instruction on 'reasonable doubt' is given; overruling State v. White, 211 Kan. 862, 508 P.2d 842, and all other decisions in which this court has required a special instruction on circumstantial evidence.

Bryson E. Mills, Wichita, argued the cause and was on the brief for the appellant.

Clifford L. Bertholf, Asst. Dist. Atty., argued the cause, and Vern Miller, Atty. Gen., Keith Sanborn, Dist. Atty., and George Savin, Asst. Dist. Atty., were with him on the brief for the appellee.

FROMME, Justice:

Frank Wilkins was found guilty by a jury of burglary (K.S.A.1972 Supp. 21-3715) and theft (K.S.A.1972 Supp. 21-3701(a)) and he was committed to the custody of the Director of State Penal Institutions. On appeal he raises four points including the insufficiency of the evidence.

The state's evidence was indirect or circumstantial and defendant's guilt was largely based on possession and use of a stolen shotgun within three hours after the shotgun had been stolen. The testimony of the witnesses fairly established the following facts. The owner of the shotgun, Frederick Ungerer, worked at the GEM store in Wichita. On November 22, 1972, the Winchester 1200 shotgun was hanging on a rack in the cab of the owner's pickup truck which he had driven to work. The pickup was locked and parked in a parking lot near the store. The owner testified the pickup truck was entered by breaking a vent window. He saw the gun at 2:00 p. m. on that day. At 3:45 p. m. he discovered the broken vent window. The gun had been removed from the truck. He had no knowledge of who took the gun.

The GEM store was located on the outskirts of Wichita. A large open field separated the parking lot from railroad tracks. A building was located near the railroad tracks, which was referred to during the trial as the 'Metal Fab' building. At 4:49 p. m. a patrolman of the Wichita police department, while on routine patrol, observed the defendant and two others in the field near the railroad tracks. The defendant was seen shooting the gun. When the three individuals saw the patrolman they ran along the railroad tracks to a rock pile. The patrolman called to the three men. One of the men disappeared over the railroad tracks. The other two started walking back toward the police car. The patrolman placed the defendant under arrest for discharging a firearm in the city and questioned the two men about the firearm. After some urging the defendant showed the officer where the gun had been hidden. The officer recovered the gun and ran a check on it. He learned that the gun had been recently reported stolen. On further questioning defendant advised the officer the gun had been found by his brother in an area near the Metal Fab building. It had recently rained and the area near the building was muddy. A search of that area disclosed no human tracks to support the defendant's story. At the trial the defendant disputed some of this testimony. He denied that he was shooting the gun when the officer discovered him in the field. The other two individuals with him were his brothers and defendant testified it was his younger brother who found the gun and had possession of it.

On appellate review the question is not whether the evidence establishes guilt beyond a reasonable doubt but whether the evidence was sufficient to form the basis for a reasonable inference of guilt when viewed in a light most favorable to the state. (State v. Platz, 214 Kan. 74, Syl. 1, 519 P.2d 1097; State v. Austin, 209 Kan. 4, Syl. 2, 495 P.2d 960.) The patrol officer testified defendant had possession of the stolen gun when the three were first discovered in the open field. The credibility of the witnesses must be left to the jury. Possession by an accused of property recently stolen in a burglary is sufficient to sustain a conviction of burglary and theft where satisfactory explanation for such possession is not given. (State v. Hardyway, 205 Kan. 55, Syl. 1, 468 P.2d 116; State v. Oswald, 197 Kan. 251, 255, 417 P.2d 261.) The evidence on review in the present case is sufficient to sustain the conviction.

Appellant contends that the trial court committed reversible error in refusing to issue a protective order against the use of a juvenile record of a proposed defense witness, Kenneth Wilkins. Kenneth was a younger brother who was with defendant when defendant was accosted in the field. Kenneth has a juvenile record involving two instances of burglary and theft. The record does not indicate whether Kenneth had been certified to the district court and tried on these charged. We assume not. So the question presented is whether the right to confront and cross-examine witnesses under Section 10, Bill of Rights, Constitution of the State of Kansas and the Sixth Amendment to the Constitution of the United States takes precedence over the statutory provisions against disclosure of juvenile records in the juvenile court. (K.S.A. 38-801 et seq.)

At the outset it should be noted the question raised concerns a witness, not the accused. Our statutes which apply to evidence sought to be introduced to impair the credibility of an accused are more restrictive than those which apply to witnesses generally. See K.S.A. 60-421 and 60-455.

K.S.A. 38-801 in pertinent part provides:

'. . . In no case shall any order, judgment or decree of the juvenile court, in any proceedings under the provisions of this act, be deemed or held to import a criminal act on the part of any child; but all proceedings, orders, judgments and decrees shall be deemed to have been taken and done in the exercise of the parental power of the state. . . .'

Juvenile records and files are subject to confidentiality and are to be protected and controlled by the courts of this state as provided in K.S.A. 38-815. However, this court has permitted the state on cross-examination to go into a defendant's prior juvenile history when the subject is first opened up on direct examination (State v. Ralls, 213 Kan. 249, 255, 215 P.2d 1205) and when the juvenile files are first introduced by defendant (State v. Fahy, 201 Kan. 366, 370, 440 P.2d 566). Appellant cites no authority to support his position urging exclusion of this type of impeachment evidence except for the provisions of our juvenile code.

It should be noted that a rule of exclusion of such evidence would be a double-edged sword. If adopted, a rule of exclusion would have to be operable both when a witness with a juvenile record is called to testify on behalf of the state and when such a witness is called by an accused. In the present case the defendant did not want the credibility of his witness impeached but in the next case if such a witness testifies against a defendant the right of that defendant to test the credibility and truthfulness of the witness by cross-examination might well appear indispensable to a fair trial.

In State v. Hooks, 202 Kan. 68, 446 P.2d 770, it is said:

'The Sixth Amendment to the Constitution of the United States provides that 'In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.' In Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923, the Supreme Court held this right is a fundamental right and is made obligatory on the states by the Fourteenth Amendment.

'Similarly, § 10 of the Bill of Rights of the Kansas Constitution secures to the accused in all criminal prosecutions the right 'to meet the witness face to face.' This provision was dealt with by this court in the early case of State v. Tomblin, 57 Kan. 841, 48 Pac. 144. . . .' (p. 70, 446 P.2d p. 772.)

We are of the opinion that this state's policy interest in protecting the...

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