State v. Walker

Citations

• 65 Kan. 92
• 68 P. 1095
• 1902 Kan. LEXIS 19

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Practice, Supreme Covbis — Presumption in Absence of Evidence — Instruction Refused. When the record does not contain any of the evidence showing the applicability of an instruction asked, the refusal to give it cannot be reviewed in this court, except when it embodies a general proposition of law not dependent upon special states of fact but common to all cases of the kind, such, for instance, in criminal prosecutions, as the presumption of . defendant’s innocence, the burden of proof upon the state, etc.</p> <p>2. -Presumption when Instruction is Given. In the case of a record which does not contain the evidence, an instruction given, unlike one refused, which hypothesizes a certain state of facts, will be reviewed, because this court is bound to presume there was evidence tending to prove the facts upon which the instruction was conditioned.</p> <p>3. Larceny- — Possession and Custody Distinguished. One person may have the legal possession of goods of which another, act- ■ ing for him, may have the mere physical custody, and, in such case, the latter may be guilty of larceny from the former if he ' keep the goods against the possessor’s will with intent to convert them to his own use.</p> <p>4. -Facts Stated and Held to Constitute Larceny. A person handed another a piece of money to be changed into a different form, and, in its changed form, to be put by the latter in a letter and deposited in the post office, and the one to whom it was given took the money'and made the change and put it in the letter but did not make the deposit in the post-office, and, with intent to keep it himself, refused to return it to the giver. Everything to be done was to be done in the presence of the two together and under the direction of the giver of the money, and everything that was done or refused was done or refused in the presence of both of them. Held, that the one who refused to complete the direction given and refused to return the money,