119 Kan. 743 | Kan. | 1925
The opinion of the court was delivered by
L. E. Thompson and C. Thompson, brothers, were jointly charged in an information with the larceny of a Chevrolet touring car, the property of William Whitty, at Holton, Kan., on April 12, 1924. Upon a separate trial of L. E. Thompson he was found guilty and was sentenced. He has appealed and complains of instructions of the court, which will be hereafter specifically noted.
It was the theory of the state that the two Thompsons as early as March, 1924, had planned to steal a Chevrolet touring car and drive it to Oregon. The evidence tending to support that theory is in substance as follows: Sometime in March, 1924, the defendant, L. E. Thompson, in the presence of his brother, C. Thompson, at
“You are instructed that under the law of Kansas, anyone who aids, abets or assists another, or others, in the commission of any crime, either by conspiring or confederating together, counseling and advising in the commission of such crime and the preparation thereof, is equally guilty with the one actually committing the crime, and you are therefore instructed in this case, that should you find that the defendant conspired and confederated with Champ Thompson, or any other person, for the commission of the crime alleged in the information, an'd that he did in any way aid, assist or abet in its commission by counsel or otherwise knowingly, then he is guilty as though he had himself, without assistance, committed the crime.
“If you find from the evidence, as hereinbefore instructed, that the defendant Leonard Thompson aided, abetted or assisted in the larceny of the automobile in question, if any larceny was in fact committed, and the same was taken from Jackson county, Kansas, you should find the defendant guilty, though you further find that the defendant was not at the time in Jackson county, Kansas.
“The defendant claims as • a defense, among other things, what is commonly known as an alibi; that is, that at the time of the commission of the alleged offense he was at another place and not personally present so he could have committed the crime charged against him. In a criminal action where the defense of an alibi is set up it does'not devolve upon the defendant to prove that defense by a preponderance of the evidence or beyond a reasonable doubt. Where it is claimed that the accused was personally present at the commission of the alleged crime and such personal presence is necessary to a conviction, then you must be satisfied, beyond a reasonable doubt, of the personal presence of the defendant; and if, from all the evidence, you have a reasonable doubt as to whether Champ Thompson was personally present*746 at the time of the commission, of the alleged offense, then you should acquit the defendant.”
Appellant’s specific objection is directed at the last part of instruction No. 13, which reads:
“And if, from all the evidence, you have a reasonable doubt as to whether Champ Thompson was personally present at the time of the commission of the alleged offense, then you should acquit the defendant.”
Appellant contends that since he, L. E. Thompson, was on trial at that time, it was highly improper for the court to tell the jury that his guilt or innocence depended on the question whether or not C. Thompson was personally present at the time of the commission of the offense. In view of the theory of the prosecution, the evidence of the case, and other instructions given, this phrase objected to was really beneficial to the defendant then on trial. It required the jury positively to find, not only the conspiracy of the two Thompsons to steal the car, and the larceny, but also to find that C. Thompson was personally present at the time of the commission of the offense. It is hardly open to the interpretation given to it by appellant that they must find the defendant guilty if they find that C. Thompson was present. If the two persons charged' had conspired or agreed between themselves to-steal a Chevrolet touring car to drive through to Oregon, and if in pursuance of that agreement one of them, the defendant here, made the application for a license at a time when neither of them had such a car, and one of them, C. Thompson, actually stole it and took it to the other, who had its appearance changed by putting on bumpers, spare tire, motor meter, and the license tag of another state, and one or the other of whom had the numbers on it changed so as to correspond with the application made by L. E. Thompson for the license from the secretary of state, it was not at all essential in establishing the guilt of L. E. Thompson to show that he was personally present, but since the evidence of the state disclosed only two persons to be in this conspiracy, it was essential that they show that C. Thompson was present, and there was no error in the court so instructing the jury.
The trial court gave an instruction that “it is not necessary for the prosecution to prove the exact time alleged in the information, but it must prove that the alleged crime was committed within the county of Jackson and state of Kansas, and within two years prior to the institution of the prosecution, which was on August 6, 1924.”
The judgment of the court below is affirmed.