from the general verdict that the turn was seasonably made, and the evidence supports that conclusion.

Having considered the various objections to the proceedings, no error being found, the judgment is affirmed. All the Justices concurring.

(93 Kan. 589)

STATE v. RICE. (No. 19421.) (Supreme Court of Kansas. Dec. 12, 1914.)

(Syllabus by the Court.)

1. BURGLARY (§ 41*)-SUFFICIENCY OF EVIDENCE-UNEXPLAINED POSSESSION OF GOODS. Proof that a burglary was committed and that the stolen goods were shortly thereafter found in the possession of the accused, when

considered in connection with all the other facts and circumstances of the case, including his failure satisfactorily to explain such possession, will sustain a conviction of burglary.

[Ed. Note.-For other cases, see Burglary, Ceut. Dig. §§ 94-103, 109; Dec. Dig. § 41.*] 2. BURGLARY (§ 41*) - BURGLARY IN THE NIGHTTIME SUFFICIENCY OF EVIDENCE TIME OF OFFENSE.

The defendant was convicted of burglary in the nighttime, without evidence showing at what time the offense was committed. Burglary in the daytime being the lesser of the two offenses, the presumption in favor of the appellant is that it was committed in the daytime, and for this reason the judgment is reversed, and a new trial ordered.

[Ed. Note. For other cases, see Burglary, Cent. Dig. §§ 91-103, 109; Dec. Dig. § 41.*] Appeal from from District Court, Bourbon County.

Will Rice was convicted of burglary in the nighttime, and appeals. Reversed, and new trial ordered.

der a pillow. The officers testified that they started to the coal bank to arrest the appellant and met him coming toward town; that at first he said he did not have any revolver, but when they showed him the revolver in question he said, "IIow did you get into my house?" This was about all that was said at the time he was arrested.

The appellant, in his testimony, explained where he had been on Saturday, January 3d, and on the night of that day until about midnight, when he said that he came home and went to bed and did not get up next morning until about 9 o'clock; that he was told at the coal bank Monday that the officers were looking for him. In reference to the property he testified as follows:

"The revolver here in evidence with a black handle and white barrel is mine. It is a 32 caliber revolver. Last fall a white man came through town and I traded him an old set of harness for this revolver, and I have had it ever since. All this canned fruit here in evidence is also mine. My mother and Mrs. Coates put up some of it for me two years ago, and I put up the balance myself last year. I learned from my mother and Mrs. Coates how to put up fruit, and last fall I bought some peaches of Mrs. Kellar. I have not been in Mrs. Funkhouser's house for several months, and I never broke into her house on the 3d of January, or at any other time.'

[] The first contention is that the possession of recently stolen goods, without other criminating circumstances showing guilt, is insufficient, as a matter of law, to sustain a conviction of burglary. It is insisted that in the present case there are no criminating circumstances indicating guilt, and nothing in the evidence to connect appellant with the crime, save and except the tion, which the jury rejected, even if unpossession of the goods; that his explanasatisfactory, could not put him in a worse position than no explanation at all. The auPORTER, J. The appellant was charged thorities cited by the appellant hardly suswith the crime of burglary in the nighttime. tain his contention. In fact they are in The jury returned a verdict of guilty. The accord with the well-settled rule that the court overruled a motion for a new trial and possession by the accused of property rerendered judgment on the verdict. In his ap-cently stolen on the occasion of a burglary peal it is urged that the verdict is contrary

Chas. A. Blair, of Ft. Scott, for appellant. J. S. Dawson, Atty. Gen., and W. F. Jackson,

of Ft. Scott, for the State.

to the law and the evidence.

is sufficient to sustain a conviction of burglary where a satisfactory explanation is not given. Counsel quote from Underhill on Criminal Evidence, a part of which reads as follows:

session of stolen property creates no presump"The true rule doubtless is that the mere postion of law that the person in whose possession it was found committed the burglary in which they were taken. The possession is a circumthem. The corpus delicti of the burglary, that stance to go to the jury, and its weight is for is, the breaking in and entering, must be proved by independent evidence, and cannot be presumed from evidence of mere possession. If it appears that a burglary was in fact committed, the possession by the accused is a circumstance from which, in connection with all the evidence, the jury may presume as a matter of fact that he committed it." Page 653.

The state proved that some time between Tuesday or Wednesday and the following Sunday morning, some one broke open the kitchen door of a dwelling house belonging to Mrs. Funkhouser, in the city of Ft. Scott; that certain property belonging to her, consisting of a revolver and some canned fruit, was stolen and carried away. There was evidence showing that the missing property was found in the possession of the appellant. The officers made a search of his house on Monday, during his absence, and found some canned fruit covered with a blanket at the foot of a bed, and some more fruit was found covered up behind a trunk. A revolver, which Mrs. Funkhouser identified as belonging to her and as the one taken from her house, was found in appellant's bed un-968, page 969:

Also the following from the opinion in State v. Powell, 61 Kan. 81, page 86, 58 Pac.

"The possession of stolen goods taken on the occasion of a burglary is evidence tending to establish the guilt of the possessor, and may, when taken in connection with other criminating circumstances, raise a presumption of guilt sufficient to warrant a conviction, but the mere possession, without any other facts indicative of guilt, is not prima facie evidence that such person committed a burglary."

Other authorities cited by counsel go no further than to hold that whether or not the explanation is a reasonable one is a question for the jury to determine.

In State v. Powell, supra, an instruction was held bad which charged that the unexplained possession of property recently stolen is prima facie evidence of the burglary charged. It was said in the opinion:

"It has been frequently held in this state that such possession, unexplained, is prima facie evidence of larceny, but the instruction goes close to, if it does not pass over, the danger line when it throws the burden on the defendant of proving how he came into possession of the property. The burden of proof is upon the state, and does not shift or change to the defendant at any stage of the case. Many of the late authorities incline to treat such possession as a disputable, rather than a conclusive, presumption, holding that it should be received as tending to prove the guilt of the defendant, but that the force and effect of the evidence is for the determination of the jury, when considered in connection with all the other facts and circumstances of the case.' 61 Kan. page 84, 58 Pac. page 968.

In an elaborate note to the case of State of Iowa v. Brady, supra, reported in 12 L. R. A. (N. S.) 199, page 211, there will be found a full discussion of the question. The author of the note says:

burglary was committed, and that goods were "The weight of authority is that proof that a then and there stolen, and shortly thereafter found in the possession of the accused, will sustain a conviction."

It must be borne in mind that the question we have to determine is not the character of the presumption, nor its weight, nor, indeed, whether or not any presumption obtains, nor have we to determine the question whether or not the possession of recently stolen property taken at a burglary is prima facie evidence of the burglary. The precise question is, whether the recent possession of property stolen in a burglary, together with criminating circumstances, including the failure of the appellant to make a satisfactory explanation of his possession of the property, is sufficient to sustain a conviction. In our opinion the great weight of authority, as well as of sound reason, supports the rule that the possession by the accused of recently stolen property is sufficient to sustain a conviction of burglary where satisfactory explanation is not given. In addition to the cases cited see State of

The opinion refers to the case of State v. Conway, 56 Kan. 682, 44 Pac. 627, where it was held that the possession of property recently stolen may be received as tending to show the commission of a burglary, but it is not of itself sufficient to create a presump-son, 7 Wash. 239, 34 Pac. 932. tion of guilt.

Iowa v. Raphael, 123 Iowa, 452, 99 N. W. 151, 101 Am. St. Rep. 334; Perry v. State (Tex. Cr. App.) 78 S. W. 513; Willis v. State (Tex. Cr. App.) 55 S. W. 829; State v. Mun

In State v. Gillespie, 62 Kan. 469, page 474, 63 Pac. 742, page 744 (84 Am. St. Rep. 411), it was held that the trial court erred in rejecting evidence of the declarations of the person found in possession of the stolen goods as to how he came by them, notwithstanding they were self-serving in character. In the opinion it was said:

* *

"Nor do we think that, as matter of law, the mere possession of goods recently stolen on the occasion of a burglary may be sufficient, even in connection with other criminating circumstances, to raise a presumption of, guilt of the burglary. * It is the unexplained possession of recently stolen goods that tends to show guilt or raises a presumption of guilt of the lar ceny, and it is the unexplained possession of goods recently stolen on the occasion of a burglary that tends to show guilt or raises a presumption of guilt of the burglary."

In State of Iowa v. Brady, 121 Iowa, 561, page 567, 97 N. W. 62, page 64 (12 L. R. A. [N. S.] 199), the court said in the opinion:

"The law does not attach a 'presumption of guilt' to any given circumstance, nor does it require the accused to overcome the presumption thereby raised,' in order to be entitled to an acquittal."

In this connection see State v. White, 76 Kan. 654, 663, 92 Pac. 829, 14 L. R. A. (N. S.) 556, and State v. Jewell, 88 Kan. 130, 132, 127 Pac. 608. Among other cases to the same effect are Smith v. State, 58 Ind. 340; Ingalls v. State, 48 Wis. 647, 4 N. W. 785.

The appellant at first denied that he owned When he saw the offior had a revolver. cers in possession of the one in question he asked, "How did you get into my house?” The jury heard his explanation of how he obtained the revolver by purchase from some unknown person passing through the town, and the rule is well settled that the reasonableness of the explanation is a question for the jury. State v. Powell, 61 Kan. 81, 58 Pac. 968; State v. McKinney, 76 Kan. 419, 91 Pac. 1068. In Jordan v. State, 119 Ga. 443, 46 S. E. 679, the recent possession of goods stolen at the time of a burglary was held sufficient to sustain a conviction of that crime taken in connection with the fact of the failure of the accused to explain the possession of the goods, except the statement that they were given him by two boys whose names he did not state. Our conclusion is that the evidence in this sufficient to sustain the conviction of burglary.

[2] There is another important question in the case, and that is whether there was any evidence to sustain a conviction of burglary in the nighttime. Mrs. Funkhouser, who owned the dwelling house where the burglary was committed, testified that she was employed away from home; that when she was away she had a girl named Ethel Goins do her chores and look after her house; that

It follows that the judgment will be re-term of imprisonment provided by the statutes versed and a new trial ordered. All the Justices concurring.

"Sec. 6828. Two Offenses. Sec. 250. When The phrase "in addition to," as used in any person shall be convicted of two or more section 72 of the Crimes Act (Gen. St. 1909, § offenses before sentence shall have been pro2560) providing for punishment for larceny nounced upon him for either offense, the imcommitted in connection with burglary "in ad-prisonment to which he shall be sentenced updition to" the punishment for burglary, does on the second or other subsequent conviction not serve to amalgamate the two offenses into shall commence at the termination of the term a single term, nor does it relate to the begin- of imprisonment to which he shall be adjudged ning and ending of the terms of imprisonment. upon prior convictions." (Crim. Code, § 250.) *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

99

of a negotiable note bearing the purported inA petition in the usual form by the indorsee dorsement of the payee, "By J. D. M., Agt.," was answered by a verified denial that such note was sold and delivered by the payee company or any one for it with authority so to do. Held, that the burden of proof was upon the plaintiff to establish authority in the agent to make the indorsement.

[1] There is no single offense known to the 13. PRINCIPAL AND AGENT (§ 119*)-AUTHORlaw as burglary and larceny to which a penITY OF AGENT-BURDEN OF PROOF. alty of confinement for five years plus an additional five years may be affixed. State v. Mooney, 93 Kan. 353, 144 Pac. 228. Section 2560 is in the nature of a special larceny statute covering larceny committed in connection with burglary, and the statute itself distinguishes the crime of larceny committed under such circumstances from the crime of burglary committed at the same time by the use of the expression "both offenses." The result is the petitioner pleaded guilty to two separate and distinct crimes, burglary in the third degree and larceny of the character described. The penalty for the first is confinement for not more than five years; for the second, confinement for not exceeding five years additional.

[3] The word "additional" does not serve to amalgamate the two penalties into a single term of not exceeding ten years, nor does it relate to the beginning and ending of terms of imprisonment. It merely carries out the idea of additional punishment for the additional crime, and sentence should have been pronounced as if there had been separate convictions.

[2] While section 6828 refers to successive convictions, the opening words are general. They are: "When any person shall be convicted of two or more offenses before sentence shall have been pronounced upon him for either offense." Therefore the statute applies to simultaneous, as well as successive, convictions. The petitioner's term of imprisonment for larceny not having been stated in the sentence as commencing at the end of his term of imprisonment for burglary, the two terms ran concurrently. In re Weisman, 93 Kan. 161, 143 Pac. 487.

[Ed. Note.-For other cases, see Principal and Agent, Cent. Dig. §§ 391-401; Dec. Dig. § 119.*]

Appeal from District Court, Ellis County. Action by the First National Bank of Hays City against A. O. Robinson and another. From judgment for defendants, plaintiff appeals. Affirmed.

A. D. Gilkeson, of Hays, for appellant. E. A. Rea, of Hays, for appellees.

WEST, J. The plaintiff bank sued upon a promissory note executed by the defendants to the Mid-Continent Loan Company, December 2, 1911, for $250 payable 90 days after date with 6 per cent. interest, alleging that it purchased the note before maturity for value in the regular course of business, and that it was transferred by indorsement, "Mid-Continent Loan Company, by J. D. McInnes, Agt." The answer contained a general denial, and averred that the note was secured without consideration, and that the inducement for its execution was a false, fraudulent, and untrue statement of the loan company by its agent that it would make loans in Ellis county and pay the defendants commissions thereon, and that the company was to issue stock to the defendants for the amount of the note which was not done; that the defendants received no consideration; also, a denial that the note

The petitioner is discharged. All the Jus- was ever sold and delivered to the plaintiff tices concurring.

(93 Kan. 464)

FIRST NAT. BANK OF HAYS CITY v.
ROBINSON et al. (No. 19053.)
(Supreme Court of Kansas. Dec. 12, 1914.)

(Syllabus by the Court.)

1. EVIDENCE (§ 471*)-STATEMENT OF CONCLUSIONS-OWNERSHIP OF PROPERTY. ·

A party claiming title to a chose in action or other personal property which is the subject of litigation may properly be permitted to answer a question as to who is its owner, and if his adversary desires the constituent facts on which such claim of ownership is based he may elicit them on cross-examination.

[Ed. Note. For other cases, see Evidence, Cent. Dig. §§ 2149-2185; Dec. Dig. § 471.*] 2. EVIDENCE (8_471*) — ADMISSIBILITY-CON

CLUSIONS OF WITNESS.

The modern notion of the admissibility of evidence is that it is more important to get the truth than to quibble over impractical distinctions between facts and conclusions.

[Ed. Note.-For other cases, see Evidence, Cent. Dig. §§ 2149-2185; Dec. Dig. § 471.*]

by the loan company or any one for it with authority so to do. The answer was verified. The trial resulted in a judgment for the defendants, from which the plaintiff appeals.

Error is assigned upon the refusal of the court to permit the cashier of the bank to testify who was the owner of the note, and in refusing testimony offered by the president as to a conversation had with McInnes touching his authority as to when the note was purchased, also in admitting the testimony offered by the defense.

The jury were instructed that the burden was upon the plaintiff to show that it was the owner of the note for value before maturity; that it was duly indorsed to the plaintiff by the loan company or some one authorized thereby; and it is argued that, if the plaintiff established the fact that the note was purchased for value before maturity in due course, the question of indorsement is out of the case.

Complaint is also made of an instruction that, as the defendants had by verified an

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

swer denied that the plaintiff was the legal owner or holder of the note, it was necessary that plaintiff prove the indorsement of the original payee. It is suggested that a mere denial, without proof in support thereof, is insufficient to place this burden upon the plaintiff. The defendants have furnished no brief, and we are compelled to consider the case without the benefit of any suggestion from them.

[1, 2] The cashier was asked who was the holder of the note, and an objection on the ground that the question called for a conclusion of the witness was sustained. A similar ruling was made touching questions as to who was the owner and whether the note was a part of the assets of the plaintiff bank; but finally the latter question was permitted to be answered. The modern notion of the admissibility of evidence is that it is more important to get the truth than to quibble over impractical distinctions. While in a very strict sense it may be giving a conclusion for the owner to say that he is the owner of a chattel or chose in action, surely he ought to know, and if he is mistaken it may be shown on cross-examination. Almost any answer might, when dissected with the scalpel of precise mental philosophy, be deemed wholly or partly a conclusion. The first stock question usually is, "Where do you reside?" and the courts have not yet found that a reply giving the location indicates only the witness' conclusion as to his habitation, and yet no more perplexing question can arise than that of residence in some cases. In Simpson v. Smith & Barnes, 27 Kan. 565, the ownership of real and personal property was the main question, and a witness was permitted to testify that the plaintiffs were "the absolute owners." This was held error, but whether material error or not was left undecided. In Solomon

R. Co. v. Jones, 34 Kan. 443, 8 Pac. 730, a question was permitted to be asked as to whose employ the plaintiff was in at the time of the injury, and it was held that as the witness, in addition to the direct answer, narrated in detail all the facts and circum stances connected with his employment, the

the witness that she owned property in controversy was held not to be prejudicial error, as it was followed by examination and cross-examination giving in detail the circumstances of her purchase and manner of acquiring the property. The Supreme Court of Alabama has twice held that ownership of personal property is a fact to which a witness may testify and may on cross-examination be required to state facts on which the claim of ownership rests. Steiner Bros. & Co. v. Tranum, 98 Ala. 315, 13 South. 365; Hunnicutt v. Higginbotham, 138 Ala. 472, 35 South. 469, 100 Am. St. Rep. 45. The Supreme Court of Iowa holds that a statement by a witness that certain property in controversy belongs to him is not inadmissible as a conclusion, since the question calls for a fact as well as an opinion. Murphy v. Olberding, 107 Iowa, 547, 78 N. W. 205, and cases cited. In New York it has been repeatedly held that such a question is competent. In De Wolf v. Williams, 69 N. Y. 621, it was said that the title to property is ordinarily a simple fact of which witnesses having a requisite knowledge can testify to directly. This was followed in Pichler v. Reese, 171 N. Y. 577, 64 N. E. 441. Wharton, in his work on the Law of Evidence, says that ordinarily a witness cannot be asked as to a conclusion of law, and that sometimes this has been so far pressed as to involve the assumption that he cannot be asked as to conclusions of fact, but that "the error of this assumption will be seen when we remember that there are few statements of fact that are not conclusions of law." 1 Wharton, Law of Ev. § 507. In another section the author states that an inference necessarily involving certain facts may be stated without the facts; but, when the facts are not necessarily involved in the inference, then they must be stated. "In other words, when the opin

ion is a mere shorthand rendering of the facts, then the opinion can be given, subject it is based." Section 510. In volume 1 of to cross-examination as to the facts on which Greenleaf on Evidence (16th Ed.) § 441, the author of that work, after discussing the rule as to facts and conclusions, says:

tion of the rule come chiefly from a too illiberal "The absurdities which disfigure the applicainterpretation of the latter notion. * ** A more liberal tendency in this respect seems to be making its way in recent times; but the reports are overloaded with decisions of the sort that ought never to have been called for; and a prominent feature in the application of the rule is the petty and unprofitable quibbling to which it gives rise." Section 441b.

was not material, and that if the question had been merely preliminary it would not have been erroneous. In Hite v. Stimmell, 45 Kan. 469, 25 l'ac. 852, it was held incompetent for a witness to state that he thought the cattle in question belonged to another party; Simpson v. Smith Simpson v. Smith & Barnes being quoted from and followed. In Sparks v. Bank, 68 Kan. 148, 74 Pac. 619, Hite v. Stimmell and Solomon R. Co. v. Jones were followed. In State V. says: Rennaker, 75 Kan. 685, 90 Pac. 245, the ques-ing to usurp them-not attempting to decide the "The answer is simply that he is not attempttion whether an answer that the witness had issue and thus usurp their place, but merely to purchased intoxicating liquors from the give evidence, which they may or may not acdefendant amounted to a conclusion was left cept, as they please." Section 441b. undecided, and in McDonald v. Daniels, 76

In answer to the objection that the witness must not usurp the functions of the jury, he

The fact that the opinion is on the very