264 P. 1035 | Kan. | 1928
The opinion of the court was delivered by
The defendant was convicted on two counts for the felonious theft of poultry. He appeals, contending that the evidence was insufficient to sustain the judgment, and that a verdict of not guilty should have been directed.
The prosecution was in four counts for the theft of poultry from four separate farms, that of Ramsey, Wheeler, Redman and Morris respectively. The jury acquitted the defendant on the counts for the thefts of the Ramsey and Morris chickens.
The evidence supporting the charge involved in the theft of the Wheeler poultry was to this effect:
Wheeler and wife resided on a farm a few miles south of Parsons. They owned a flock of seventy-three certified Buff Orpington chickens. About 1:30 o’clock p. m. on February 12, 1927, Wheeler and wife went to town, leaving no one at home and returning about 5 p. m. Two witnesses, Harry Hearson and his sister Velma Hear-son, who were walking on the public road that afternoon saw defendant at the Wheeler home between the house and the barn. His automobile, a Ford coupé, was standing in the driveway headed outward. The witness, Harry Hearson, knew defendant. The latter asked him, “Harry, who lives here?” Hearson answered, “Wheeler lives here.” Defendant then said, “I sure would like to
The evidence of defendant’s guilt on this count was sufficient to take the case to the jury under the system for bringing criminals to justice which prevails in this commonwealth. (State v. Lister, 121 Kan. 524, 247 Pac. 846; State v. Hards, 125 Kan. 364, 263 Pac. 1055.)
Touching the charge involved in the theft of the Redman poultry, the evidence tended to show that Redman lived on a farm three miles northwest of Oswego; that he had a large flock of chickens; that on August 20, 1927, he and his 'wife left their farm about 7:30 o’clock p. m. and went to Oswego and remained there until midnight. On their return, Redman lit a lantern and looked into his chicken house and found a number (about forty) of his chickens missing. He discovered some automobile tracks in his barnyard and covered them with boards. Later it was shown that the automobile tracks were made by Fisk tires, and that shortly before the theft defendant had purchased a new Star coupé with Fisk tires. The evening the chickens were stolen two neighbors heard the quiet hum of a new car going by, and one of them testified that it turned into Redman’s driveway, and shortly afterwards he heard chickens “squalling,” and that he walked to the north end of his porch and ascertained that the “squalling” of the chickens was at Redman’s. About two weeks after this theft, defendant and his father called at the Redman residence where a conversation was had as follows:
Defendant: “Mr. Redman, they have got a warrant for me up there.”
Redman: “Have they?”
Defendant: “They sure have.”
Redman: “Well."
Defendant: “Did you have some chickens stolen?”
Redman: “Yes. , . .”
Defendant: “If there is an old hen dies around here anywhere it is laid onto me. . . . They even laid the stealing of Rowe’s harness off on to me.”
*602 Redman: “I don’t know anything about that, but I can tell you about everybody I have talked to insinuates that way too.”
Defendant (addressing his father): “Let’s go.”
Defendant’s father then took up the conversation with Redman, (defendant being about six feet away): “There has been so much laid onto this boy, if I knew how much it was we might settle for these chickens. . . . If he is guilty I want him to go.”
An incident of some significance occurred while defendant and his father were at Redman’s. Defendant drove his car into the yard and backed it around in the same manner as the car used in carrying off the chickens had been backed two weeks before. Not only were the tread marks similar, but the tracks made in driving and backing were so much alike that an inference could be drawn that the driver and car in both instances were the same. The similarity of tire treads is judicially recognized as probative and helpful in identifying thieves. (State v. Frey, 111 Kan. 798, 208 Pac. 574.) The conversation of defendant with Redman, and defendant’s silence following the remarks of his father in his presence, were indicative of a consciousness of guilt. (State v. Cruse, 112 Kan. 486, 212 Pac. 81.) Altogether the evidence on this count, although not strong, made a prima facie case for the consideration of the jury. (State v. Stout, 114 Kan. 585, 220 Pac. 180; State v. Brizendine, 114 Kan. 699, 220 Pac. 174; State v. Kennedy, 124 Kan. 119, 257 Pac. 726; State v. Buseman, 124 Kan. 496, 260 Pac. 641.)
Considerable space is occupied in defendant’s brief inveighing against the discourtesy of the county attorney, who declined to permit defendant’s counsel, employed just before the trial, to read a transcript of the testimony taken at the preliminary examination. But the mere matter of civilities between counsel is not within the jurisdiction of courts to control. (State v. Laird, 79 Kan. 681, 100 Pac. 637.)
The record contains no error and the judgment is affirmed.