State v. Kearns

The opinion of the court was delivered by This a companion case to State v. Roberts, 210 Kan. 786, 504 P.2d 242). Although tried separately, the appellant John M. Kearns and his colleague John Doyle Roberts were each convicted of the same two counts of grand larceny, on substantially identical testimony. Each was represented by the same attorney, who made virtually the same contentions on behalf of each both at trial and in this court. In Roberts we reversed and remanded for a new trial because of the trial court's failure to instruct on petty larceny. The same result must be reached here. The evidence here is likewise susceptible to a reasonable inference that the two $27 drills forming the basis of count I were not stolen at one time or as a result of one continuing criminal impulse. The same may be said of the 76 record albums charged under count II. Since none of the items under either count had a sufficient value to make its theft alone grand larceny, an instruction on petty larceny was called for. For a discussion of the single larceny doctrine as applied to the facts in this case the reader is referred to State v. Roberts, supra.