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The opinion of the court was delivered by
Harvey, C. J.:
In each of these cases the plaintiff sought to recover benefits alleged to be due him on a health and accident insurance policy issued by defendant. They differ only as to the period of time for which recovery was sought. In case No. 38,365 plaintiff sought to recover benefits for the period from July 8, 1940, to June 22, 1946. The case was here before on a demurrer to the petition (166 Kan. 525, 203 P. 2d 196; 168 Kan. 10, 210 P. 2d 232), where the court affirmed the order of the trial court overruling defendant’s demurrer to the petition. In case No. 38,366 plaintiff seeks to recover benefits under the same policy involved in the prior suit for the period from June 22, 1946, to January 8, 1950. In the trial court all facts were stipulated which would entitle plaintiff to recover in each case if the contract of insurance provided for payments for the period for which recovery is sought. The trial was by the court, a jury trial having been waived. The court found for plaintiff in each case and rendered judgment accordingly. They were tried at the same time, but were not consolidated, and separate abstracts have been filed in this court. The cases were consolidated for hearing in this court and counsel for each party have filed but one brief covering both cases. Defendant, as appellant here, presents two questions for our determination:
“1. As to both appeals, whether G. S. 1935, Section 40-1109 (a) (6) and (i) as construed by this court in the opinions reported at 166 Kans. 525 and 168 Kans. 10 violates the Constitution of the United States by depriving defendant of property without due process of law and impairing the obligation of contracts.
“2. As to appeal No. 38366, whether the decisions reported at 166 Kans. 525 and 168 Kans. 10 are erroneous and ought to be overruled.”
As to the first question presented, the trial court found that it was without merit, and also found that the question was not timely raised, particularly with reference to the first case. With respect to that the record discloses that the first case (our present No. 38,365) was filed in the district court on June 24, 1946; that defendant first filed a motion to make the petition definite and certain by attaching thereto a copy of the policy of insurance, and an amended petition was filed in which that was done. Defendant demurred to the amended petition upon the ground that it did not state facts sufficient to constitute a cause of action. This demurrer was con sidered by the trial court and overruled, and defendant appealed to this court. An opinion of this court affirming the judgment of the trial court was filed on March 5, 1949, and reported in 166 Kan. 525, 203 P. 2d 196. The appellant filed a motion for rehearing, which was granted and the case set for our July, 1949 session. The case was rearguéd by counsel, who filed additional briefs, and a brief on appellant’s behalf was filed amici curiae. The court reexamined the questions originally argued and those argued on rehearing, and in an opinion handed down on October 9, 1949, adhered to its former opinion (168 Kan. 10, 210 P. 2d 232). No further motion for rehearing was filed by the appellant and our mandate went down on October 31, 1949. At no time or place in the consideration of that case did the defendant ever contend or suggest that the statute [G. S. 1935, 40-1109 (a) (6) and (i)] violated the federal constitution, nor did it contend that our opinion filed on March 5, 1949, either alone or in connection with the statute, violated the federal constitution.
The invalidity of the statute could have been raised by the demurrer filed (see cases cited in the annotation 71 A. L. R. 1194) and perhaps the wording of the demurrer was broad enough to raise the question but it was not contended either in the trial court or in this court that the demurrer should be sustained upon that ground.
If counsel for defendant considered the statute constitutional, if standing alone, but that it had been rendered unconstitutional by our decisions handed down on March 5, 1949, that question was not raised by the motion for rehearing; neither was it suggested in the briefs or arguments upon the rehearing, and of course was not raised by a motion for rehearing after our decision handed down on October 9,1949, for appellant filed no such motion for rehearing. No effort was made to take the case to the Supreme Court of the United States by appeal or by certiorari.
In this situation the authorities appear to support appellee’s contention that appellant waived the constitutional question now presented. In 16 C. J. S. 225 the rule is thus stated:
“While in considering a question affecting the constitutionality of an act it is the court’s duty to exercise some discretion in determining the time when it shall be presented, it is the general rule, subject apparently to some qualifications, that such question must be raised at the earliest opportunity consistent with good pleading and orderly procedure, or it will be considered as waived, and even ignorance of pertinent facts is not an excuse for failure to assert con stitutional rights at the proper time. Accordingly, a constitutional objection not raised by the pleadings ordinarily may not be raised later at trial. . . . In some jurisdictions, the constitutionality of a particular statute upon which a pleading is based may be raised by general demurrer thereto.”
Citing, among other cases, Railroad Co. v. Abilene, 78 Kan. 820, 98 Pac. 224, where it was held:
“The unconstitutionality of a statute or of proceedings under a statute need not be pleaded with any greater definiteness or certainty than other issues, . . .”
And on page 823 it was said: “A general demurrer will raise the question.” The point being, however, the question must be raised; it cannot be simply ignored.
A similar statement of the rule is found in 12 C. J. 785 and 11 Am. Jur. 772. Each of these general authorities cites a number of federal and state decisions. And in Yakus v. United States, 321 U. S. 414, 64 S. Ct. 660, 88 Law Ed. 834, the court had occasions to say (page 444):
"No procedural principle is more familiar to this Court than that a constitutional right may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it.” (Citing authorities.)
In this case we feel compelled to hold that appellant, by not raising the federal constitutional question in this case until after our decisions in 166 Kan. 525 and 168 Kan. 10 waived the right to present them. Further, we are convinced that if appellant thought our decisions above mentioned violated its rights under the federal constitution appellant should have taken steps by appeal or certiorari to have our decisions reviewed by the Supreme Court of the United States; and, not doing so, it is not in a position now to contend that the order violated the federal consitution.
More than that, we find no constitutional infirmity in the statute, as we think the following cases disclose:
Thorne v. Aetna Life Ins. Co. (1923), 155 Minn. 271, 275-277, 193 N. W. 463.
Williams v. Travelers Ins. Co. (1913), 168 Wis. 456, 462, 169 N. W. 609, 611, 959.
Tracey v. Insurance Company (1920), 119 Me. 131, 139, 140, 109 A. 490.
Van Dusen v. Business Men's Association (1927), 237 Mich. 294, 297, 211 N. W. 991.
Counsel for appellant in their brief talk about “the law of the case” and in effect concede that our decisions in 166 Kan. 525 and 168 Kan. 10 are the law of the case in the present appeal No. 38,365, but contend it is not the law of the case in No. 38,366. Whether our decisions are spoken of as “the law of the case,” or as res judicata, or if given their real name, the final decision of this court, unappealed from, construing the insurance policy in question as interpreted by. our statute, is not very material. Certainly the trial court and the parties to the action were bound by our decisions in the further trial of the case now numbered 38,365, and since the same policy of insurance and the same statute were involved in the case No. 38,366, and the same parties were litigants, our decisions are applicable to the later case.
In the City of Council Grove v. Kansas Electric Power Co., 137 Kan. 109, 19 Pac. 460, at page 113, the court quoted with approval from C. K. and W. Rld. Co. v. Comm’rs of Anderson Co., 47 Kan. 766, 29 Pac. 96, the following, which we deem applicable:
“When a matter is once adjudicated, it is conclusively determined between the same parties and their privies as to all matters which were or might have been litigated; and this determination is binding, as an estoppel, in all other actions, whether commenced before or after the action in which the adjudication was made.”
The second point presented by appellant for our determination applies only to case No. 38,366 and is whether the decisions reported in 166 Kan. 525 and 168 Kan. 10 are erroneous and ought to be overruled. Counsel for appellant in their brief ask us to reexamine those decisions and overrule them. We have re-examined them and find no reason to overrule them. We also re-examined the questions in the recent case of See v. United Ins. Co., 171 Kan. 146, 230 P. 2d 1008.
The result is that the judgment of the trial court should be affirmed in each of the cases. It is so ordered. | [
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The opinion of the court was delivered by
Burch, J.:
The question in this case involves the right to impeaeh, by way of defense, for defects in the proceedings upon which it is based, a tax deed, valid on its face, when used as the foundation for an action of ejectment brought by the tax-title holder more than seven years after the recording of the deed, the land having remained vacant and unoccupied until within two years of the commencement of suit.
Burnett claims title to outdot 12-J-, city of Caldwell, under a tax deed for that tract, together with out-lots 14 and 15 in the same city, issued and recorded January 20, 1879. Stump claims title from the original patentee. The lot remained vacant and unoccupied until August, 1901, when Stump took possession of it, which possession he ‘has ever since continued to hold. In November, 1901, Burnett brought this action in ejectment. The defendant made no claim for affirmative relief. Upon a final trial before the court the plaintiff introduced the tax deed, proved the chain of his title under it, proved the facts relating to the possession of the lot, the payment of taxes thereon, and rested. The tax deed is valid on its face, but the proceedings upon which it is based are defective in that the out-lots described are not contiguous tracts of land. Each one is separated from the other by a street, each one was owned' by a separate individual when taxed, and each one was separately taxed and separately sold, but the deed recites a gross sale for a gross sum. The defendant proved his chain of title and offered to prove the imperfections in the tax proceedings, which were admitted to exist, but upon objection was not permitted to do so, and judgment went against him. If he should have been allowed to do this the judgment must be reversed.
Section 141 of the tax law (Gen. Stat. 1901, § 7680) reads as follows:
“Any suit or proceeding against the tax purchaser, his heirs or assigns, for the recovery of land sold for taxes, or to defeat or avoid a sale or conveyance of lands for taxes, except in cases where the taxes have been paid or the land redeemed as provided by law, shall be commenced within five years from the time of recording the tax deed, and not thereafter.”
It is perfectly plain that this is an action to procure something which the plaintiff has never enjoyed. He never had actual possession of the land. He might have taken such possession but he neglected to do so. True, the tax deed, good on its face, cast upon its holder constructive possession, but constructive possession exists only in legal contemplation, and falls far short of the immediate occupation in fact which actual possession requires. The plaintiff therefore seeks to enlarge the scope of his actual proprietorship •and to add to the sum of enjoyment hitherto furnished by his tax deed the new, distinct increment of actual possession. To do this he commenced an action; he •assailed the party in possession ; he became plaintiff, not defendant; proceedings were instituted by him, not against him. The statute quoted says nothing whatever about a suit brought by a tax purchaser to recover from others land sold for taxes. It relates solely to the commencement of an action of a different kind. Therefore, it has no application to the facts of this controversy.
In Walker v. Boh, 32 Kan. 354, 4 Pac. 272, a tax-title holder brought an action to quiet his title. The defendant offered to show defects in the tax proceedings sufficient to avoid the deed, but was met by the same objection the plaintiff interposes in this action, viz., that the statute of limitations quoted had made the tax deed invulnerable. The court said :
“Now it may be that this limitation has so run in favor of the plaintiff’s tax deed that no person can maintain an action against him for the recovery of the land, or to defeat or avoid his tax deed. But this is not such an action. This is not an action, against the plaintiff, but it is an action brought by himself and in his own favor ; nor is it an action brought to recover the land or to defeat or avoid the tax deed, but it is an action simply to quiet title, upon the assumption that the tax deed is valid, and virtually to bolster up and sustain the tax deed, and the defendant is simply defendant, and is not asking for any affirmative relief. Now it does not seem that this limitation reaches any such case as this.. The statute seems to be enacted to prevent persons from instituting proceedings to defeat or avoid tax deeds after the five years have elapsed, but it does not seem to be enacted for the purpose of preventing persons from defending their rights when attacked. After the five-years limitation has run, the holder of the tax deed may unquestionably retain all that he is in the possession of under his tax deed, but he must not commence an action to obtain something more without being prepared to meet any defense which the defendant may set up. It is possible, and even probable, however, under this statute, that the defendant in the present case can never maintain any action or set up any claim for affirmative relief that would in its effects defeat or avoid the plaintiff’s tax deed ; but the statute does not seem to go to tin* extent of saying- that a party claiming an interest in real estate shall not defend himself and his title when attacked, as in the present case. We would think that he may defend, so far as his defense is a pure defense, but he cannot set up or institute anything in his answer or elsewhere for the purpose of obtaining any affirmative relief. If the tax deed would be void except for this statute of limitations, he may say to the tax-deed holder : ‘You may retain all that you have obtained the possession of under your tax deed, but you cannot by an action take anything more from me under it.’ In fact, each party may retain just what he has the possession of, but neither party can maintain an action to obtain anything more, except, perhaps, in some cases the plaintiff may be entitled to all the taxes paid by him and by those under whom he claims.”
It is true that case was an action to quiet title, but the statute in question is as foreign to an action for possession brought by the tax-deed holder as it is to a suit to quiet title brought by the same party. The entire argument of the opinion, is as pertinent to an action for possession as to an action to quiet title, and no difference in principle is observable between a tax-deed holder’s seeking to advance his position and augment his dominion by a suit to quiet title, and his striving to do the same thing by an action of ejectment.
The case of Coale v. Campbell, 58 Kan. 480, 49 Pac. 604, was one of ejectment brought by a tax-deed holder. The claim of the plaintiff, as stated by the court in the opinion, was as follows :
‘‘On the part of Campbell, it is contended that the tax deed, being valid in form and duly recorded, carried the constructive possession of the land to the grantee; that, as it remained unchallenged for more than five years, any action attacking its validity became barred ; and that, after the expiration of the pe riod of limitation, the title of Douglas under the tax deed became a perfect, absolute title, not subject to attack.”
This contention is identical with that of the plaintiff in the present suit. The court in that case disposed of it as follows :
“In this case, the holder of the tax title is not merely defending an. action brought to recover possession of the land from him or to declare his deed invalid, but is seeking to recover land in the possession of another.”
And referring to Walker v. Boh, supra, the court further said:
“The decision is rested on the ground that the holder of the tax deed may invoke section 141 for purposes of defense, but not of attack. In this case, Campbell, as plaintiff, invoked this section for the purpose of building a title and aiding him in recovering possession of the land.”
The precise question involved, therefore, appears to have been but recently determined.
In Harris v. Curran, 32 Kan. 580, 4 Pac. 1044, the principle announced in Walker v. Boh was recognized and approved. Some confusion, however, has been occasioned by certain statements in the opinion in Harris v. Curran, relating to the perfection of title enjoyed by the tax-deed holder after the expiration of the five-year period of limitation. Upon that subject the correct doctrine, as applied to this case, is that a tax deed of vacant land, good upon its face, and duly recorded, invests the tax-title holder with constructive possession of the land; and such constructive possession, when uninterrupted by the actual possession of the adverse claimant, perfects the tax deed at the expiration of the statutory period, as against affirmative assaults upon it for defects in the proceedings upon which it is based.
If the defendant in this action had sought to avail himself of the defects- in the proceedings upon which plaintiff’s tax deed was based for the purpose of obtaining affirmative relief, and not as a mere matter of defense, the ruling of the trial court would have been justified. Such, however, not being the case, the judgment is reversed and the cause remanded for a new trial.
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The opinion of the court was delivered by
Burch, J. :
A judgment was rendered against plaintiff in error for damages on account of the breach of an oral contract of marriage alleged to have been made in June, 1901. On the trial the jury returned special findings of fact, among which are the following :
,“Q,. 13. Did defendant in February, 1901, make a contract with the plaintiff to marry her? A. Yes.”
“Q,. 15. If you answer question No. 13 in the affirmative, state when the marriage was to take place. A. In March, 1902.”
“Q. 18. Did plaintiff and defendant have a conversation. in June, 1901, in regard to getting married near the German M. E. church? A. Yes.
“Q,. 19. If you answer question No. 18 in the affirmative, did that conversation refer to a previous contract of marriage ? A. Yes.
“Q,. 20. If you answer question No. 19 that the conversation and statements referred to were in regard to a previous marriage contract, state whether the previous contract was in June, 1899, or in February, 1901. A. February, 1901.”
“Q,. 36. Did defendant agree to marry plaintiff in March, 1902 ? A. Yes.
“Q. 37. If you answer the last question in the affirmative, state when such agreement was made. A. In February,-1901, and again in June, 1901.”
The principal item of direct evidence relating to the June contract was given by the plaintiff’s daughter, and is as follows :
“Q. Pías your uncle been around’ your mother’s house? A. Quite a great deal.
‘‘Q. Was he there in the year 1901? A. In February.
“Q. Was he there at any time in February and in June at your house? A. Yes, sir.
“Q,. Did you see him in June, 1901? A. Yes, sir.
“Q. Did you see him and your mother in June. A. Yes, sir.
“Q,. What day in June? A. Flag day, June 14. .
“Q,. Where were they then, Katie? A. Down by the German church, all in a buggy.
“Q,. Who all was in the buggy? A. Uncle Neut, mamma, and myself.
“Q,. Did you hear any talk between Uncle Neut and your mother about a marriage? A. Yes, sir.
“ Q,. Tell the jury just what was said by Mr. Parrish and your mother? A. Mamma says : ‘Do you intend to marry me as you promised, or are you making a fool of me?’ He says : ‘I intend to marry you as I promised. In March we will go on the farm and live right. I will either buy or build.’”
The fact that such a conversation was had was corroborated by the evidence of plaintiff, and by numerous circumstances tending to render it probable.
It is argued that the contract of February, 1901, which was not.to be performed until March, 1902, was unenforceable under the statute of frauds, and that the conversation in June, 1901, amounted to nothing more than a statement of purpose to abide by the contract previously made. It is true that a mere rehearsal of the terms of a previous contract will not constitute a new promise, and a conversation which does nothing more than go over the substance of a previous understanding for the purpose of seeing if it is still satisfactory will not create a new engagement. (Odell v. Webendorfer, 50 Hun, App. Div. 579, 64 N. Y. Supp. 451.) But in view of the situation of the parties and all the circumstances surrounding them, as disclosed by the evidence, including the attitude of the defend ant toward another woman whom he married in September, 1901, the jury -were warranted in finding that the statement of the defendant, “In March we will go on the farm and live right,” constituted a distinct, express, independent and present promise, without relation to any previous contract. Piad the defendant rested upon the position, “Iintend to marry you as I promised,” the contention of his counsel would be of much force. That might well be a mere declaration of a continuing obligation previously incurred. But he appears to have deemed it necessary, in order to allay the plaintiff’s fears of his fidelity, to make the further statement quoted, which, under all the facts, the jury had the right to say was a new promise. The evidence shows that the plaintiff accepted, and thereafter relied on, that promise, and the defendant must, therefore, be bound by it. The case of MacElree v. Wolfersberger, 59 Kan. 105, 52 Pac. 69, is not in point, for the reason that the jury in that case found against the making of a second contract.
Because the contract of marriage made in February, 1901, could not have been made the basis of an action, it is asserted that the court erred in admitting evidence of it. In Johnson v. Leggett, 28 Kan. 590, it was held not to be error to admit, in corroboration of direct and positive evidence of an express contract between the parties, the whole of their intercourse. If such intercourse should include a previous engagement to marry, evidence of that fact would not be rendered incompetent merely because of some legal impediment to the enforcement of the promise if it were made the basis of an action. The rule referred to, however, only goes to the extent of allowing the trial court a wide latitude in arriving at the facts, and does not forbid it from excluding testimony only remotely af fecting the latest relations of the parties, although involved in their past intercourse with each other. The trial court is not compelled to permit a complete rehabilitation of all the minute details of a long-past association which could be of no material aid in elucidating the issues on trial. Hence, in the present case, it was not error, as claimed, for the court to refuse to admit evidence of what the plaintiff said at the time concerning a rumor of her engagement to be married to the defendant, which was rife in 1899. For the same reason evidence of conversations in which plaintiff suggested the marriage of the defendant to other persons than herself, had long prior to the existence of the relations which it was claimed finally tended toward matrimony, was properly excluded.
Other assignments of error in the admission and rejection of testimony have been examined, and are found to be unsubstantial and to furnish no cause for the reversal of the judgment rendered.
Since, in the view of the case set forth above, there was sufficient evidence of a valid contract of marriage, the demurrer to the evidence and the motion for judgment on account of an insufficient proof of that fact were properly overruled.
The instructions given to the jury presented with perspicacity all the issues to be tried and the law applicable to them, and are not subject to the animadversions of counsel upon them. The instructions refused, so far as they were proper, were substantially embodied in those given. The matter of preponderance of evidence was fully covered by instruction No. 10 as given, as was the matter of prejudice and sympathy by instruction No. 11.
The court cannot be required to instruct the jury in advance upon the province of counsel in the argu ment of the case. Misconduct cannot be anticipated on the part of counsel who know their duties, and the jury are instructed only upon matters within the scope of their own duties.
It is strenuously insisted that the closing argument of G. P. Cline, Esq., for the plaintiff was of such nature as to be greatly prejudicial to the defendant’s rights, and that the court, upon the application of the defendant, failed to afford him adequate protection against it. On the other hand, it is contended that the portions of the speech objected to constituted a legitimate discussion of piquant facts, brought out largely by defendant himself. Whatever the character and effect of this speech may have been, this court can express no opinion upon it because it was not properly presented to the district court upon the motion, for a new trial. It was necessary that this be done by affidavit, which course defendant failed to pursue. (Civil Code, §§306, 309; Gen. Stat. 1901, §§4754, 4757 ; A. T. & S. F. Rld. Co. v. Rowan, 55 Kan. 270, 39 Pac. 1010; Branner v. Nichols, 61 id. 356, 59 Pac. 633).
It is urged, finally, that certain of the special findings were conflicting, which is true. But such findings were upon immaterial and trivial matters, and the general verdict will not be overturned on account of them.
The judgment of the district court is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Burch, J.:
Appellant was convicted of selling intoxicating liquors contrary to law. On the trial witnesses for the state testified that they had purchased from the appellant beer, which they drank. After the direct examination of one of these witnesses had closed, appellant’s attorneys requested him to drink from a bottle then proffered him and to say if the liquid it contained was of the same kind as that the appellant had sold him. The purpose of the proceeding was stated by appellant’s attorney, as follows:
“What we want to do is to find out from this witness precisely what drink it was that he got and drank upon these occasions that he was at Snyder’s. Then, we are in a position to determine what it was in fact he drank. I will state to the court that the line of our defense will be that this man is selling what is known as an imitation or substitute for beer ; a drink that is made in simulation of beer ; that it is made of precisely the same ingredients as beer, except that the per cent, of alcohol is less, being so low that it is not an intoxicating drink, being expressly manufactured for Kansas and other prohibitory states. That is the purpose of the testimony.”
Substantially the same question and offer were repeated upon the examination of another witness, but seasonable objections were promptly sustained. Upon appeal from a judgment of conviction these rulings are assigned as error.
The question at issue was the intoxicating quality of the liquor the witnesses had purchased. Upon this subject the witnesses had expressed opinions to the effect that it was beer. The basis of these opinions, of course, lay in the qualifications of the witnesses to identify beer. The questions asked called for nothing more than opinions as to whether or not the strange liquor was also beer. If it were the same as that which the witnesses had drunk before, it would in their opinion be beer ; otherwise not. Therefore, the course of the examination tended to shift the inquiry so as to present the new problem of what the fresh bottle contained.
This matter was utterly extrinsic, and therefore rightfully excluded. If a defendant were possessed of a variety of simulatory brews the issues might be multiplied accordingly, and the court be overwhelmed with a flood of collateral issues. Although the state must come prepared to prove the facts alleged in the information, it cannot be put to the sudden hazard of stemming such a possible tide. If the witnesses for the state had been asked upon direct examination if a signature were genuine, instead of having been asked if a beverage were beer, they could not have been cross-examined upon other unproved and unadmitted writings. (Gaunt v. Harkness, 53 Kan. 405, 36 Pac. 739, 42 Am. St. Rep. 297, and cases cited in the opinion.) For the same reasons they could not be cross-examined upon dubious drinks. If the witnesses had said the liquor which appellant assumed they would sample was the same they had been getting, and was, therefore, beer, it was his avowed purpose to impeach them upon that purely collateral matter. The evidence was, thereforerightly excluded.as irrelevant and immaterial.
The judgment of the district court is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Smith, J. :
This was a suit brought in the district court by Mary B. McAdow and others, heirs at law of Elizabeth Boten, deceased, to set aside an order of the probate court of Atchison county, allowing a demand against the estate in favor of Adna Boten in the sum of $662, and to vacate and annul a subsequent order directing a sale of real estate to satisfy the same, and an order approving the sale and directing a deed to be made to said Adna Boten, the purchaser.
The petition alleged that there was a conspiracy between the administrator and Adna Boten for the purpose of fraudulently imposing upon the probate court, and inducing it to allow his claim against the estate, in pursuance of which one Minstrall was appointed administrator, and he consented to the allowance of the demand; that the whole of the amount allowed was fraudulent and unjust; that the decedent during her lifetime was not indebted to Adna Boten in any sum whatever, all of which the administrator well knew ; that the conspiracy involved the fraudulent obtaining of title to a tract of land owned by the decedent ; that the same was sold on the petition of the claimant, bought in by Adna Boten, and a deed executed to him by the order of the probate court at the instance of the administrator ; and thereafter the estate was wound up and the administrator discharged. The' claim was allowed February 6, 1900, the land sold February 10 following, and plaintiffs below first had knowledge of the proceedings in April, 1900.
This action was commenced April 8, 1901. The petition prayed that the allowance of the claim in the probate court be set aside and vacated, that the deed made by the administrator be annulled, and that the real estate be decreed the joint property of the heirs of Elizabeth Boten, deceased, in the proportion that they inherited the same, and that the property be partitioned among the parties. A general demurrer was sustained to this petition on the ground that it did not state facts sufficient to constitute a cause of action.
We think the court below erred in sustaining the-demurrer. It is unnecessary to look beyond the decisions of this court for authority to uphold the equitable power of the district court in cases like the-present. In Shoemaker v. Brown, 10 Kan. 383, comment was made on the full chancery powers conferred on the district courts by what is now section 1923 of' the General Statutes of 1901. It was there held that while the finding of the probate court was a judicial determination of matters coming within its jurisdiction, its judgments could be impeached for fraud in obtaining the same. Later, in the case of Gafford, Guardian, v. Dickinson, Adm’r, 37 Kan. 287, 291, 15 Pac. 175, 177, it was decided that while the estate is in process of settlement in the probate court, the district court will not assert its equitable jurisdiction, for the reason that the parties have a plain and adequate remedy in the probate court. It was there said :
“In this case, however, the settlement of the estate is no longer pending in the probate court. According to the records of the probate court, the estate was finally settled about a year before this action was commenced; and therefore, unless the plaintiff now has a remedy in the district court, she has no remedy.
The same principle was reiterated in Ladd v. Nystol, 63 Kan. 23, 64 Pac. 985. In that case, however, the plaintiff failed because the allegations of fraud were not specific, nor were circumstances alleged with sufficient particularity to afford relief. In the case at bar the conspiracy between the administrator and the claimant in the probate court is definitely stated, it being alleged that the deceased whose estate was sought to be administered owed nothing to the claim ant in her lifetime, and that the resort to administration was a scheme and device of Adna Boten and the administrator to obtain the land in fraud of the heirs.
Complete relief can be afforded to the parties by a suit in equity. In Klemp v. Winter, 23 Kan. 699, a doubt is expressed whether adequate relief in a case much like the present one could be given in the probate court.
The allegations of the petition are amply sufficient to sustain a decree vacating the orders of the probate court and restoring the real estate to the heirs. The absence of the administrator as a party defendant in the suit we do not regard as important.
The judgment of the court below will be reversed, with directions to overrule the demurrer to the petition. ^
All the Justices concurring. | [
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The opinion of the court was delivered by
Smith, J.:
This was an action for specific performance of written contracts, or in the event specific performance could not be had, the recovery of money. Judgment was for the plaintiff decreeing specific performance. The defendant has appealed.
The petition was in what the plaintiff denominated three counts.
In count 1 the petition alleged that on the 20th day of February, 1945, plaintiff and defendant, husband and wife, entered into a written contract whereby the defendant agreed to pay plaintiff $100 a month on the 5th day of each month as long as she should remain unmarried; that if she should remarry the payments would be suspended and that if that marriage should terminate by death, separation or divorce the payments should be resumed subject to a reduction should the defendant’s salary be reduced; that on March 3, 1945, plaintiff and defendant were divorced and on May 3, 1945, they were remarried; that on September 21, 1946, they were again divorced; that notwithstanding the terms of the contract of February 20, 1945, the defendant had failed to pay plaintiff the moneys due her since the second divorce, in accordance with its terms. The prayer was that defendant be ordered to comply with the terms of the contract and pay the plaintiff all the moneys due thereunder.
The second count set out that contemporaneously with the execution of the above agreement the parties agreed that defendant should keep in force certain insurance policies on his life and that he had failed to do so. The prayer of this count was for judgment requiring defendant to maintain the contracts of insurance referred to or in the alternative that he should be compelled to procure on his life contracts of a similar type and in an amount equal to those mentioned.
The third count referred to the allegations of the first two counts and prayed that if the court could not compel specific performance plaintiff have damages in the amount of $20,000 for the breach of the contract referred to in count 1 and $10,000 for the breach of that referred to in count II.
Both of the contracts to which reference was made in the petition were attached as exhibits.
The contract referred to in Count I was as follows:
“This Agreement made and entered into on this 20th day of February, 1945, by and between Sylvia J. Mitchell, Party of the First Part, hereinafter referred to as ‘wife,’ and Jefferson W. Mitchell, Party of the Second Part, hereinafter referred to as liusband.’
“Whereas, Jefferson W. Mitchell and Sylvia J.’ Mitchell are lawful husband and wife and are not in an actual state of separation and desire to enter into a property agreement for the settlement of their property rights and for her maintenance and support, both temporary and permanent.
“Now Therefore,
“In Consideration of the mutual covenants and agreements herein contained, it is hereby agreed:
“1. That said husband, Jefferson W. Mitchell, does hereby agree to pay to his said wife, Sylvia J. Mitchell, by way of division and settlement of property rights, maintenance and support the sum of One Hundred Dollars ($100.00) per month, payable on or before the 5th day of each and every month thereafter, beginning March 5, 1945, and consecutive monthly thereafter; such payments to continue during her lifetime and so long as said wife shall remain unmarried, it being agreed however, that in the event said wife should hereafter remarry that said monthly payments shall be suspended during such period of her remarriage but should such remarriage hereafter terminate by reason of either the death, separation or divorce of such subsequent husband that said wife might marry, that such monthly payments shall be resumed and, automatically, without further notice become due and payable in the same amounts monthly consecutively. It is the intention of the parties hereto, however, that in the event of said wife’s remarriage and the subsequent resumption of the monthly payments hereunder as above stated, that should said wife then and thereafter remarry a second time, that such remarriage shall work a termination of this contract and no payments shall be made thereafter to such wife.
“2. It Is Further Agreed by and between, the parties hereto that the amount of said monthly payments due hereunder of $100.00 per month is based and predicated upon the present monthly salary which said husband is now receiving from the Phillips Petroleum Company, his present employer, and that should said husband’s present monthly salary be reduced, that said $100.00 monthly payments due to said wife hereunder shall likewise be reduced each month proportionately in the same ratio or proportion that the reduced earnings bear to the present monthly earnings of the husband. (By way of illustration, should said husband earn only 75% of his present monthly earnings per month, then during such monthly periods the wife shall receive hereunder only $75.00 per month instead of $100.00 per month.)
“3. In consideration of the above, the husband does' hereby release said wife from any and all right of property division, maintenance and support that he may have against her, and said wife does hereby likewise mutually release said husband for any and all rights of property division, maintenance and support that she may have against said husband except insofar as the same concerns a contract of this date entered into between the same parties hereto, pertaining to life insurance policies, whereby the husband agrees to continue in full force and effect certain life insurance policies described therein, to pay the premiums thereon as’ provided in such contract, and waives his right of changing the beneficiary now therein named."
The contract referred to in Count II covered several insurance policies on defendant’s life. It is not necessary to set them out here. It contained the following provision:
“Now Therefore, the parties in consideration of the settlement of their affairs and as a part thereof, have agreed; That said Jefferson W. Mitchell will continue to pay the necessary premiums to keep said policies alive, in full force and effect as is contemplated upon the issuance of said policies; and agrees that the same shall be maintained for the protection and benefit of his said wife, Sylvia J. Mitchell, Said Jeffferson W. Mitchell does hereby waive and surrender his right to change beneficiaries on said policies from and after this date insofar as' said Sylvia J. Mitchell is a beneficiary in said policies, it being the intention of the parties hereto that the rights of Sylvia J. Mitchell as beneficiary under said policies shall be vested in her without any right, power or discretion in said Jefferson W. Mitchell hereafter to change the beneficiary or beneficiaries of said policies insofar as she, Sylvia J. Mitchell, is concerned.”
The defendant answered admitting the marriages and divorces alleged but denying every other allegation. The answer then alleged that on May 3, 1945, defendant was the owner of property having a value of $11,000 and arranged to borrow $19,500; that with these funds and $1,000 borrowed by plaintiff, plaintiff and defendant purchased a resort property; that about June 28, 1946, plaintiff and defendant orally agreed to separate and divide their property, share and share alike; that they sold their equity in the resort property for $27,000 and the proceeds thereof were divided equally between them in full settlement of their respective claims against one another; that one-half the cash received was paid to plaintiff and she received a half interest in a $20,000 note representing the balance.
The reply of plaintiff to defendant’s answer admitted buying the resort property and that the parties sold their equity in it and she received one-half the cash and one-half interest in the $20,000 note. The reply further stated that plaintiff at no time agreed to accept one-half of the proceeds of the equity in the resort property as a full settlement of her property rights, but alleged that any oral agreement made by plaintiff and defendant to divide their property, share and share alike, would be unenforceable under the statutes of Missouri and Oklahoma.
The trial court found that all of the allegations in the plaintiff’s petition and amended petition and reply were true; that the contracts referred to in the petition should be specifically enforced; that judgment should be rendered in favor of plaintiff against the defendant and that there was then due from defendant to the plaintiff $4,093.44. Judgment was further entered that defendant secure and maintain on his life insurance equal to the face value of the policies specified in the agreement. Judgment was entered accordingly.
Defendant filed a motion for a new trial on account of abuse of discretion by the court; misconduct of the prevailing party; defendant was not afforded a reasonable opportunity to be heard on the merits of the case; erroneous rulings of the court; the decision was given under the influence of passion and prejudice; and the decision was in whole or in part contrary to the evidence. This motion was overruled — hence this appeal.
The specifications of error are that the court erred in admitting the testimony of the attorney who drew the contracts as to their meaning; in refusing to find that the parties prior to their remarriage agreed to cancellation of the separation agreements executed at the time of their first divorce; in refusing to find that the conduct of the parties before and after their second marriage established their agreement to cancel the separation agreement; in refusing to rule as a matter of law that the remarriage of the parties nullified the separation agreement; in refusing to find that the parties by oral agreement revoked the insurance agreement; in sub stituting a new insurance agreement for that executed by the parties; in using the equity power of the court to order defendant to make future payments of money not yet due; in refusing to find that the agreement to make payments after a prospective separation was void as against public policy; that the judgment was not supported by evidence; and in refusing to enter judgment for defendant.
Various grounds are urged here why the judgment should be reversed. We find it unnecessary to consider all of them, however. There actually is not much dispute about the facts. Plaintiff and defendant were husband and wife and being about to separate entered into the contracts, the subject matter of this action. Subsequently they were divorced and defendant began to comply with the terms of the contracts. After just a few months separation they were again married. And under strict terms of the contract he ceased to comply with it. After a few months they were again divorced. Plaintiff herself testified, the decree in the second divorce did not contain any provision for a property settlement and she had no agreement with defendant concerning a property settlement at that time. This latter statement was not exactly correct since she had just testified that during the second marriage they had pooled their joint resources in a joint venture, sold out at a profit and divided the proceeds of the sale evenly. At any rate, it is conceded the second action was for a divorce decree and nothing more, no adjudication or consideration of property rights whatever. We dealt with an analogous situation in Calkins v. Calkins, 155 Kan. 43, 122 P. 2d 750. There the defendant husband at the time the divorce decree was entered was in arrears in his payments to his wife pursuant to the judgment in a separate maintenance action. This was not mentioned or considered in the divorce action. When the divorced wife attempted to garnishee her former husband’s salary to collect the back payments on the action in separate maintenance, we held:
“In an action for divorce, matters of alimony, division of property and all obligations arising out of or connected with the marital relation may be presented and adjusted. If not then presented the judgment is as full and complete a bar to a subsequent assertion of such rights between the husband and wife as if they had been fully tried and determined in the divorce action.”
Not much more need be said. The authorities are fully discussed in that opinion. All matters of property settlement between the plaintiff and defendant could have been adjudicated in the second divorce action. Since they could have been adjudicated there and were not, they cannot be the subject of subsequent litigation.
The judgment of the trial court is reversed. | [
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The opinion of the court was delivered by
Cunningham, J.:
The appellant was convicted of a misdemeanor. Judgment was entered against him on December 15, 1902, at which time, upon his ap plication, he was granted “sixty days from date, in which to make and prepare a bill of exceptions.” The bill of exceptions was made, and it was served on the county attorney on the 17th day of January, 1903. It was not, however, allowed and signed by the district judge until the 6th day of March, 1903, more than sixty days from the entry of judgment. The state now moves to dismiss the appeal because the bill of exceptions was not made in time. Prior to the enactment of section 4753 of the General Statutes of 1901 (Laws 1901, ch. 275, § 1) a bill of exceptions must have been settled and signed within the' term at which the judgmept was rendered. By that act judges were given authority to extend the time “beyond the term, in the same manner as is provided by law for extending the time for settling a case-made.” This purports only to give authority to extend the time “in the same manner,” etc. It does not provide that the bill of exceptions shall be served on the opposite party. Evidently in this case the attorneys preparing the bill of exceptions read this act as though it provided that all of the procedure in the matter of preparing a bill of exceptions, service of the same on the opposite party, etc., should be such as is provided for making a case-made. This, however, is not so. The only effect which this act had was to enable the trial judge to extend the time for the settling and signing of a bill of exceptions beyond the term.
Inasmuch as in this case the bill of exceptions was not signed within sixty days, which was the time given, the judge lost jurisdiction to settle and sign it at the time he attempted to do so; hence it is no bill of exceptions, and there is nothing before the court.
The appeal must be dismissed.
All the Justices concurring. | [
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The opinion of the' court was delivered by
Johnston, O. J.:
This was an action by R. Slater to recover from the city of Fort Scott the sum of $1850, alleged to be due to him as salary during his incumbency of the office of police judge. He was the police judge, and had been receiving $50 per month as salary until the passage of the act creating a city court in Fort Scott. (Laws 1899, ch. 127.) This act conferred on the new city court jurisdiction to hear and determine all offenses against the ordinances of the city, and it is claimed by the city that it operated to abolish the office of police judge, and hence the mayor and council refused to appropriate any salary for him. Slater, assuming to be the police judge of the city, held possession of the books and papers belonging to the office, and also held himself in readiness to perform the duties of the place for a number of months, when he accepted other employment which caused him to be absent from the city the greater part of the time. In March, 1901, the legislature repealed the act creating the city court and Slater resumed the performance of the duties of police judge, and was so recognized by the city until his successor was regularly chosen. The trial court held that the office was not abolished by tíie act creating the city court and gave judgment against the city for the amount of the salary up to the time that Slater accepted other employment, viz., $316.
The first question is, Did chapter 127 of the Laws of 1899 abolish the office of police judge? No reference whatever is made in the act to that officer, nor to the acts defining his power and duties. A police judge is an officer of a city of the first class whose powers and duties are provided by a general statute applicable alike to all cities of that class. We cannot assume it to have been the intention of the legislature to discontinue an office so established, nor to deprive an officer of his functions, unless there is a clear provision of statute indicating such intent. The greater part of the jurisdiction formerly exercised by the police judge of Fort Scott was conferred upon another tribunal, but the legislature did not deprive or undertake to deprive him of all the powers vested in him. While it took from him the jurisdiction to hear and determine offenses against the ordinances of the city, he still had power as police judge to perform the marriage ceremony, to administer oaths, to require laws for the preservation of the public peace to be kept, and to that end to require persons to give security to keep the peace within the limits of the city, to issue warrants for the arrest of persons charged with the commission of criminal offenses, and to hold preliminary examinations. Since these' and possibly other powers remained with him, it can hardly be said that the legislature contemplated the discontinuance of an office of which no mention was made in the act.
It was specifically held in In re Hagan, 65 Kan. 857, 68 Pac. 1104, that the act creating the city court of Fort Scott did not repeal the general law providing for a police judge in cities of the first class, nor abolish that office; that during the existence of the act creating the city court the general statute was operative in. the city of Fort Scott, except as to the jurisdiction which had been taken from the police judge and conferred on the city court, and that when that act was repealed full jurisdiction was restored to the police judge the same as it existed in other cities.
The right to the emoluments of an office is an incident, and follows the title to the office ; and as Slater was the police judge he had a right to the prescribed salary, regardless of the extent of his services. The city council could not withhold the whole or any part of his compensation because he had not performed the duties and services required of him when he was first chosen, nor because such services were performed by another. It is clear that he was entitled at least to the amount awarded by the trial court, and therefore its judgment will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Smith, J. :
It is the contention of counsel for plaintiffs in error that the final process issued by the clerk to the sheriff, commanding him to appraise and sell the mortgaged real estate decreed by the court to be sold, should have been executed within sixty days from its date, and that a sale after the return-day was void and conveyed no title to the purchaser. This is followed by the argument that a void sale could not be given effect or validity by an order of confirmation.
The nature of the suit in which the decree was entered leads to an inquiry whether section 4915, General Statutes of 1901, providing that the sheriff t0‘ whom any writ of execution is directed shall return such writ within sixty days from its date, has application to sales under a decree of foreclosure. A careful examination of the different statutory provisions relating to executions and execution sales is necessary to arrive at a correct solution of the question. Section 4848, General Statutes of 1901, provides that, in actions to enforce a mortgage or other lien, judgments shall be rendered for the amount due “and for the sale of the property charged and the application of the proceeds.” The several sections of the statute referring to executions, necessary to be considered, read :
“ § 4891. Executions shall be deemed process of the court, and shall be issued by the clerk and directed to the sheriff of the county. They may be directed to different counties at the same time.
“§4892. Executions are of four kinds: First, against the property of the judgment debtor ; second, against? his person ; third, for the delivery of the possession of real or personal property, with damages for withholding the same, and costs; foibrth, executions in special cases.”
” § 4896. The writ of execution against the property of the judgment debtor, issuing from any court of record in this state, shall command the officer to whom it is directed that of the goods and chattels of the debtor he cause to be made the money specified in the writ; and for want of goods and chattels, he cause the same to be made of the lands and tenements of the debtor ; and the amount of the debt, damages and costs for. which-judgment is entered shall be indorsed on the execution.”
”§4898. The officer to whom a writ of execution is delivered shall ■ proceed immediately to levy the same upon the goods and chattels of the debtor; but if no goods and chattels can be found, the officer shall indorse on the writ of execution, ‘No goods,’ and forthwith levy the writ of execution upon the lands and tenements of the debtor which may be liable to satisfy the judgment; and if any of the lands and tenements of the debtor which may be liable shall be encumbered by mortgage or any other lien or liens, such lands and tenements may be levied upon and appraised and sold subject to such lien or liens, which shall be stated in the appraisement.”
”§4905. Lands and tenements taken on execution shall not be sold until the officer causes public notice of the time and place of sale to be given for at least thirty days before the day of sale, by advertisement in some newspaper regularly printed and. published and having a general circulation in the county, to be' designated by the party ordering the sale, or in case no newspaper be printed in the county, in some newspaper in general circulation therein, and by putting up an advertisement on the court-house door and in five other public places in the county, two of which shall be in the to\Vnship where such lands and tenements lie. All sales made without such advertisement- ■ shall be set aside, on motion, by the. court to which • the execution is returnable. And no greater sum shall be taxed as costs for advertising in any case than the amount received or to be received by the publisher, printer or editor of the paper doing the printing, and which shall not exceed the amount prescribed by the law for such publication.”
It will be noted that in the first two of the three sections set out above the process is designated as a ‘ ‘ writ of execution5 ’ and in section 4905 at least thirty days’ notice of sale is required to be given by the officer in cases where land is “taken on execution.” Section 4915, General Statutes of 1901, provides :
“The sheriff or other officer to whom any writ of execution shall be directed shall return such writ to the court to which the same is returnable, within sixty days from the date thereof.’-’
Does this have reference to executions in special cases authorized in section 4892, supra? The nature of a special execution is stated in section 4994, General Statutes of 1901, as follows :
“In special cases not hereinbefore provided for, the execution shall conform to the judgment or order of the court. When a judgment for any specified amount, and also for the sale of specific real or personal property, shall have been rendered, and an amount sufficient to satisfy the amount of the debt or damages and costs be not made from the sale of property specified, an execution may'issue for the balance, as in other cases.”
Special executions are agáin mentioned in sections 4927, 4928, 4947, and 4949, General Statutes of 1901, relating to the redemption of real estate. In the sections cited “orders of sale” are also referred to.
Those sections of the statute which provide for a levy of an execution on real estate of the judgment debtor before its sale by the officer can have no appli cation to judicial sales ordered by the court, like that •in the present case, where the property on which a lien was fixed was designated in the decree, and ordered sold to satisfy the amount of the charge against it. In Smith v. Burnes, 8 Kan. 197, 202, it was said :
“There was no formal levy of the order of sale on said lot. This we think was not necessary. The court had complete jurisdiction of the property without any formal levy. The court ordered that it be sold ; and the sheriff had no power to seize or sell any more or any less than the specific lot which he was ordered to sell. Wheatly v. Tutt, 4 Kan. 195. The order of sale was not a general execution which the sheriff could levy on any property.”
For the reasons stated, the language of section 4909, General Statutes of 1901, providing that if lands or tenements levied on are not sold on one execution an alias may be issued to sell the property, is to be restricted to those executions where a levy is necessary.
A sale by a sheriff under a general execution which he has levied on real or personal property is not a judicial sale, strictly speaking. Such a sale is a ministerial act, and, at common law, if the officer conformed to the established regulations, the sale was final and valid as soon as made. Confirmation was required only in chancery sales. (Rorer, Jud. Sales, 2d ed., § 9, and note 4, p. 6 ; also § 16.) In Freeman on Yoid Judicial Sales, section 1, the distinction between judicial and execution sales is pointed out. It is said :
“Execution sales are not judicial. They must, it is true, be supported by a judgment, decree, or order. Rut the judgment is not for the sale of any specific property. It is only for the recovery of a designated sum of money. The court gives no directions, and can give none, concerning what property shall be levied upon. It usually has no control over the sale beyond setting it aside for non-compliance with the directions of the statutes of the state. The chief differences between execution and judicial sales are these: the former are based on a general judgment for so much money, the latter on an order to sell specific property ; the former are conducted by an officer of the law in pursuance of the directions of a statute, the latter are made by the agent of a court in pursuance of the directions of the court; in the former the sheriff is the vendor, in the latter, the court; in the former the sale is usually complete when the property is struck off to the highest bidder, in the latter it must be reported to and approved by the court.”
By our statute certain restrictions have been imposed on chancery sales unknown to strict equity procedure. All executions, whether general or special, must be issued by the clerk and directed to the sheriff. (Gen. Stat. 1901, §4891.) Sales thereunder must also be held at the court-house in the county where the lands are situated. (Gen. Stat. 190T, §4908.) Sheriff sales made under execution or order of sale must be confirmed by the court. (Gen. Stat. 1901, § 4952.)
■Section 4994, General Statutes of 1901, set out above, directs that, ‘ ‘ in special cases not hereinbefore provided for, the execution shall conform to the judgment or order of the court.” Looking back to the preceding sections, we find that the only one which prescribes a public notice of the time and place of sale has relation to the sale of lands and tenements “taken on execution,” referring obviously to ageneral execution where there had been a seizure or levy. The requirement of section 4915, that the writ shall be returned by the officer within sixty days from its date, does not impose a limitation on the power of the court in cases like the present, where the interests of all parties to the suit might demand that an enlargement of the time for a return be ordered. In other words, a special case arises in a foreclosure suit, which is in the nature of a proceeding in rem, where the decree of the court operates directly on the mortgaged property, and where no levy or seizure is necessary.
Our position on the question involved is fortified by a reference to the statute directing the manner of making sales, in attachment cases. It is provided that after judgment the attached property “shall be sold by order of the court under the same restrictions and regulations as if the same had been levied on by execution.” (Gen. Stat. 1901, § 4669.) There is no such provision in respect to the sale of property to satisfy a mortgage lien.
Where large tracts of land or other valuable property are involved, not likely to find a purchaser at an adequate price if sold under short notice, three or six months’ advertisement might be advisable and necessary, and we think that under section 4994 of the statute it would be within the power of the court ordering the sale to fix the duration of the notice, and give such publicity to it as the necessities of the case might require, and to that end postpone the return-day of the special execution to a time beyond sixty days from the date of its issue. We do not think, however, that in any case the notice should be shortened by the court to less than thirty days before the day of sale,' in view of the legislative policy to provide for thirty days’ notice in ordinary execution sales.
The conclusion we have reached is supported by the case of Southern Cal. L. Co. v. Hotel Co., 94 Cal. 217, 29 Pac. 237, 28 Am. St. Rep. 115. The statutory requirements there passed on were substantially like ours. The trial court set aside a decretal sale for the reason that the property was advertised and sold after the return-day of the writ. This ruling was held to be erroneous. It was decided that the time within which an order of sale based on a decree foreclosing a mechanic’s lien should be executed was directory merely. See Amoskeag Savings Bank v. Robbins, 53 Neb. 776, 74 N. W. 261; Jarrett v. Hoover, 54 id. 65, 74 N. W. 429.
Holding this view of the law, a confirmation of the sheriff’s sale in the present case was an approval of that which as to the time of performance the court had power to order in the first instance, and the case comes within the rule stated in the second paragraph of the syllabus in Thompson v. Burge, 60 Kan. 549, 57 Pac. 110, 72 Am. St. Rep. 369. In the case of Shultz v. Smith, 17 Kan. 306, the court did not distinguish between ordinary execution sales and those specially ordered by the court.
The ruling, of the court below will be affirmed.
All the Justices concurring.
Cunningham, J., not sitting, having been of counsel. | [
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The opinion of the court was delivered by
Burch, J.:
On the afternoon of April 18, 1901, a team of horses drawing a farm wagon and galloping along a country road in Cowley county, a short distance west of Winfield, without a driver, was stopped, and the wagon was found to contain the dead body of C. L. Wiltberger, a resident of Winfield, the owner of the team and wagon and the owner of a farm in the immediate vicinity. He was lying face upward in the bottom of the wagon-box, near its front end, with a bullet-hole through his head. The character of the wound disclosed that he had been shot from behind with a weapon of large caliber, and that death must have followed instantly. His pocketbook, his money, consisting of a few silver and nickel coins, and his keys were gone from his pockets. He had been marketing wheat from his farm to Winfield and had left that city less than an hour before in possession of some checks he had received for his produce, which were also missing. The scene of the tragedy was located at a secluded spot in the bottom of a ravine, between the place where the team was stopped and Winfield, by drops of blood and large pools of blood on the ground. The position of these marks indicated that the team had been stopped twice, at places a short distance apart, at the time of the homicide.
On the evening of the day preceding this, shocking catastrophe, two boys, Charles Betts, aged thirteen and still wearing knee trousers, and Clyde Moore, who was not yet seventeen years old, left their homes in Arkansas City for Winfield. By pawning a bicycle they had obtained some money which, when divided, amounted to about $2.15 for each one, and Charles Betts took with him a large 44-caliber Colt’s revolver belonging to his father. Being unable to conceal so formidable a weapon upon his childish person, it was given to Clyde. They arrived at Winfield at night. The next morning they left the lodging-house where they had slept and during the forenoon strolled about the city, loitered along the tracks and upon the grounds of various railroads entering it, conversed with a tramp and with, another individual they met, and finally, near a railroad junction on the outskirts of town, shot at a mark with the revolver. In the course of their perambulations they twice crossed Ninth avenue, a street in Winfield, which Mr. Wiltberger that day traveled twice in each direction before his death, and from which extended .the country road upon which he was killed.
Late in the afternoon Clyde climbed into a box car of a ’Frisco railroad-train at Winfield, and went home. Near five o’clock in the evening Charles appeared at the station of Hackney, on the Santa Fe railroad, between Arkansas City and Winfield, and tried to purchase a ticket to St. Joseph, Mo. Later he took a train at Hackney for Arkansas City, arriving there after night, when, without going home, he went to Clyde’s house and inquired for him. When seen at Hackney and on the train his shoes and clothing were muddy, as they were when he finally reached his home. Once home, a state of nervous excitement relaxed in an uncontrollable precipitation of tears.
In the immediate vicinity of the scene of the murder two lines of footprints of different size were discovered. They led away from the fateful place in different directions and portions of their courses appeared to have been made by running feet. These telltale tracks were traced through many meanderings. Sometimes after wide detours the two trails seemed constrained toward each other, as if the fleeing persons, who made them had expected to meet; and in one instance one line of tracks led an apparently anxious search far down one side of the Walnut river, and 'then returned, while the other lay unresponsive across the stream. Finally, the larger tracks passed into Ninth avenue near the place where the deceased man was last seen alive, while the smaller ones entered Riverside road, a thoroughfare leading into the city much further south. Along the course of the larger tracks the pocketbook was found. Along the course of the smaller tracks the keys were found. At one point in the course of the smaller tracks, whoever made them had fallen down and floundered somewhat in the mud at a little stream he crossed, and there two of the grain checks were found. Near this place a hurrying boy in knee trousers, wet and'muddy to the waist, was seen. The various tracks were measured repeatedly and they corresponded in size precisely with the shoes worn by the two boys. At several points along the two lines of tracks boys were seen at an incriminating time of day, whom witnesses described and identified as Charles Betts and Clyde Moore, and when the latter was arrested, some days later, the coat which he had worn at Winfield on April 18 was found to be stained with blood which experts pronounced to be human blood.
Clyde Moore was charged with the crime, tried upon an information for murder in the first degree, convicted of murder in the second degree, and sentenced to confinement at hard labor in the penitentiary for twenty years.
In this appeal he claims the trial court committed grievous error in admitting over his objection evidence relating to the tracks made, course pursued, conduct exhibited, and appearance presented by Charles Betts subsequently to the commission of the ■crime. At the scene of the murder human footprints were as relevant as pools of blood, and it was as proper to show the size, direction and characteristics of those which were found, and all the facts and incidents attending them, as it would have been to de lineate the conduct of the fleeing individuals who made them, had they been seen to leave the wagon containing the bleeding corpse. And when one set of the tracks-originating at the fatal place were traced practically without discontinuance or disconnection until they became identified with a certain fleeing boy, his demeanor and his immediate movements, made under the apparent stimulus of the crime, continued a part of the res gestse, and could properly be shown. The course of the tracks made by Charles Betts, his accident at the creek and consequent befoulment, the finding along his trail of the articles rifled from the dead man’s pockets, his haste, anxiety, and emotion, together with other evidence offered in the case, tended to characterize .the homicide as felonious, to supply a motive, and to show that Charles Betts was one of the guilty parties. But they did not show Clyde Moore’s connection with the crime. For this the state relied upon his presence at Winfield, his identification with one set of tracks leading from the scene of the murder, the finding of the pocketbook along the course of those tracks, the blood upon his coat, probably received in adjusting the body so that it could be searched, inconsistent accounts of his conduct, and other facts and circumstances disclosed by the record. Therefore, within the limits to which it was confined, the testimony offered was properly admitted.
Counsel for appellant refers to the familiar law limiting evidence of what is said and'done by one conspirator, offered upon the trial of another, to acts and declarations made and done while the conspiracy was pending and-in furtherance of the common design. But Moore was not prosecuted' upon the theory that a conspiracy made him liable for the acts and declara tions of Betts, but was prosecuted upon the theory that he himself assisted in the perpetration of the crime and was guilty because of his own acts as principal. The legal question presented is similar in all essential aspects to that in the case of The State v. Peterson, 38 Kan. 204, 16 Pac. 263, and the doctrine there announced is precisely applicable and fully controlling.
Since the evidence complained of was properly admitted, the criticism of counsel for appellant upon an instruction to the jury concerning it is not well founded and does not require extended discussion.
The appellant further feels aggrieved that the trial court refused to permit a question asked a witness by his counsel to be answered. At a preliminary examination held to investigate if probable cause existed to hold Charles Betts for the crime, Clyde Moore was a witness. In his testimony at that hearing Clyde Moore gave a detailed statement as to where he and Charles went and what they did while together, and as to where he went and what he did after they separated. Upon Clyde Moore’s trial, a witness who had heard this statement was produced and asked to repeat Clyde’s story up to the point where he had stated he and Charles had separated. Upon cross-examination, the witness was asked to proceed with the narrative, which he did to the fullest extent the examining „ counsel required. After having apparently exhausted the witness as to everything Clyde had said he had done, counsel propounded this question: “You remember also that he testified that he had nothing, and knew nothing, about the killing of your father, do you not?” The court refused to permit the question to be answered. Clearly the ruling was not prejudicial. The facts narrated made it impossible for Clyde to have been connected with the killing in any way. Whatever of exculpation there was for him lay in the circumstances he had narrated. His answer to the question could not be explanatory or elucidative of anything he or Charles had done, and could not in any way fortify his position. He w,as exonerated, if at all, by the facts, and not by his own self-serving declaration of their force and effect. While the question was perhaps technically proper as cross-examination, it could not prejudice appellant’s cause that he was precluded from saying he had asserted his innocence o'n the occasion of Charles Betts’s preliminary examination.
“ On an appeal, the court must give judgment without regard to technical errors or defects, or to exceptions which do not affect the substantial rights of the parties.” (Gen. Stat. 1901, §5731.)
At the trial the district court instructed the jury upon the law of murder in the second degree. The appellant now claims that the facts and circumstances disclosed by the evidence irresistibly compel the conclusion that the crime was murder in the first degree as charged in the information ; that the verdict shows the jury to have been unwilling to convict of murder in the first degree ; and hence that appellant was entitled to an acquittal, which was prevented by the unwarranted instruction. The evidence in the case was wholly circumstantial. No one saw the deed who could be used as a witness by the state, and in finding a verdict the jury were confined to an interpretation of the dumb memorials outraged natui'e herself preserved. This court is not prepared to say that a state of facts could not exist under the evidence involving purpose and malice but excluding deliberation and premeditation. There may have been a quarrel and the larceny may have been an afterthought; and to support murder in the first degree it is necessary to attribute to the defendant an almost inconceivable depravity of mind. Therefore, it was proper that the court should instruct the jury with reference to the less heinous degree.
Appellant finally claims that during the progress of his trial certain sensational newspaper articles concerning matters supposed to affect the case were circulated in the county, producing much public excitement, and he claims that something of this agitated state of feeling was communicated to the jury, to his prejudice. The record, however, is barren of any proof of any such influence upon the minds of the jurors. The affidavit used upon the hearing of the motion for a new trial does nothing more than state a belief that the public passion found its way into the jury-box. The verdict cannot be overturned upon anything so lacking the equality *of fact.
The appellant appears to have had a fair trial, and the judgment of the district court is affirmed.
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The opinion of the court was delivered by
Price, J.:
The appeal in each of these consolidated cases is from an order striking the second amended petition. The issues and question involved are identical and they will be treated as one case.
Plaintiff is a wholesale jewelry distributor and brought this action for the recovery of money. The petition alleged that the defendants, Worcester and Washburn, operated a jewelry store in Hill City, as partners, under the name of “Washburn Jewelry”; that they had purchased merchandise from plaintiff in the total sum of $732.06, upon which $459 had been paid, leaving a balance due in the sum of $273.06.
In the alternative, it was then alleged that if Worcester was not a partner in the ownership and operation of the store then he was a guarantor of bills incurred in its opération by Washburn, and that plaintiff had extended credit to Washburn upon representations made by Worcester that he would guarantee all indebtedness so incurred.
By way of further alternative, the petition alleged a sale of the store by Washburn to Worcester; that the latter paid nothing to Washburn for the stock of merchandise or fixtures, and that Worcester failed to comply with the provisions of the Bulk Sales Act (G. S. 1949, 58-101 and 102).
The defendant, Farmers and Merchants Bank of Hill City, was alleged to be the holder of two chattel mortgages executed by Washburn, the exact nature of which being unknown to plaintiff; and the prayer was for a money judgment against defendants Wash-bum and Worcester, and for a judgment against the bank barring any claim it might have against the stock of merchandise by virtue of its chattel mortgage.
Service of summons was never obtained upon defendant Wash-burn, and defendant bank filed its disclaimer, which was allowed.
Defendant Worcester filed a motion to require plaintiff to make its petition more definite and certain by stating its capacity to sue. By agreement of the parties this motion was sustained and plaintiff filed its amended petition in compliance with the court’s order.
Defendant Worcester then filed a motion to make the amended petition more definite and certain by stating the exact nature of the interest, if any, Worcester owned in the store when it was allegedly operated by him and defendant Washburn; by setting out an itemized statement of the merchandise allegedly purchased, together with the dates and amounts of such purchases; to require plaintiff to separately state and number its purported causes of action, and to require plaintiff to state the specific inducements and representations allegedly made by Worcester to plaintiff, together with the times, dates and places thereof.
This motion was sustained in its entirety.
Thereafter plaintiff filed a second amended petition in which recovery was sought solely upon the basis of a violation of the Bulk Sales Act by Worcester when he purchased and took possession of the store from Washburn. Allegations with respect to this theory of liability in the second amended petition were substantially iden tical to the allegations with respect to the same theory contained in the petition and amended petition.
Defendant Worcester then filed a motion to strike the second amended petition on the grounds that it was inconsistent with and constituted a departure from the original petition and amended petition and changed plaintiff’s claim or cause of action.
This motion was sustained and that is the order from which this appeal was taken.
In support of the lower court’s ruling defendant calls our attention to Schoeppel v. Pfannensteil, 122 Kan. 630, 253 Pac. 567, 51 A. L. R. 398, holding that a sale of an undivided half interest in a partnership stock of merchandise of one partner to his fellow partner is not governed by the Bulk Sales Act, and to decisions having to do with election of remedies, departure, and the limitations on the power of the court to permit amendment of pleadings under G. S. 1949, 60-759.
On the other hand, plaintiff, while conceding the correctness of the rules urged by defendant as applied to the facts and circumstances of those cases out of which they arose, contends that under the facts here present all we have is merely an abandonment of the first two theories of recovery alleged in the petition and amended petition, and that its second amended petition merely adopts the third theory contained in the first two petitions — therefore it cannot be said there is such inconsistency, departure or change of its claim so as to justify the court in striking the second amended petition.
In our opinion the lower court erroneously struck the second amended petition. The matter narrows down to this: In its first two petitions plaintiff sought to recover on three different theories (1) a partnership between Worcester and Washburn, (2) inducements and representations on the part of Worcester as a guarantor, and (3) liability of Worcester based on his alleged violation of the Btilk Sales Act. No motion to elect was ever filed. No answer has been filed. No question concerning any statute of limitation is involved. Plaintiff, when called upon by motion to separately state and number its causes of action, apparently realized it would sooner or later be called upon to elect, and so it filed the second amended petition seeking to recover solely on one of the theories contained in the first two petitions. The remaining two theories contained in those first pleadings were simply abandoned. We know of no valid reason, under the facts here disclosed, why plain tiff should not he permitted to do so. The theory of recovery of the second amended petition is not only consistent with one of the theories contained in the first two petitions, but it is identical. It is true there has been a “departure” from the other two theories contained in the first two petitions, but not from the third theory. We are unable to see how defendant Worcester has been in any way misled or prejudiced. From the second amended petition it is clear that he is being sued for the balance of an account for merchandise allegedly sold by plaintiff to the jewelry store because of his failure to comply with the provisions of the Bulk Sales Act.
We have examined all authorities cited by defendant but find it unnecessary to discuss them for the reason that the factual situations upon which they were based are readily distinguishable from the case before us. Here it may not be said the allegations of the second amended petition are inconsistent with or constitute a departure from one of the theories of recovery contained in the first two petitions. Plaintiff’s claim is not only unchanged but is identical to that theory. The other two theories were merely abandoned.
It therefore follows that the order of the court in each case, striking the second amended petition, is reversed.
Parker, J., not participating. | [
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The opinion o£ the court was delivered by
Johnston, C. J.:
Arthur C. Powers became a member of the Fraternal Aid Association on October 29, 1895, and died on March 10, 1900.. His membership was in the local council at Garden City and the beneficiary designated was his wife, Edith E. Powers. In the certificate it was stipulated that in case of his death she should be entitled to a benefit not exceeding $2000. Among the prescribed conditions, Powers was required to pay all assessments and dues and to conform to certain other requirements expressed in the certificate of membership and in the by-laws of the association. After the death of Powers payment of the benefit was resisted on the ground that the required payments had not been made by Powers in his lifetime ; and further, that proofs of death had not been made, in compliance with the terms of the contract of insurance. The jury specially found that all dues had been paid, and that he had paid more than he was required to pay.
It is contended that there was no testimony to support the finding of payment, and that the court erred in refusing peremptorily to instruct'the jury to find for the defendant. The record is scarcely in a condition to warrant an examination as to payments, as it shows upon its’face that all of the testimony introduced, and which was before the jury for its consideration, is not included in it. We hg,ve looked at the testimony preserved, however, and are of the opinion that it is at least sufficient to uphold the findings and verdict. The payments of the member were made to the local secretary, and this appears to be in accord with the general plan of the association. It is contended that a payment to the local secretary was not binding upon the general council unless the moneys so paid were forwarded to the general council. The by-laws of the association authorize the local secretary to collect the fees and assessments, and also make the general council liable for benefits on payment to the local secretary. The third condition in the certificate of membership plainly recognizes the local secretary as the agent of the association to receive payments from members ; and, besides, there is a provision in it that the failure to make payments to him avoids the certificate. There is no provision that the failure or neglect of the member to see that the money reaches the general council shall operate as a forfeiture of membership or of rights under the contract. Under the holding in Pyramids v. Drake, 66 Kan. 538, 72 Pac. 239, the plan of the association as indicated by the provisions mentioned makes the local secretary the agent of the association and not of the members.
In establishing the payments, testimony was offered to show that at different times excess payments were made to, and received by, the local secretary for dues and assessments. The'contention is that these payments should not be credited, because they were paid in before assessments had been made or dues had accrued. A member cannot be regarded to be in default who has paid in money to be applied on dues and assessments, and which was received and held by the proper officer for that purpose. It would be a strange rule that would declamé a forfeiture of contract rights for non-payment of dues and assessments where the money was received and held by the agent of the association for the very purpose of liquidating such obligations and preserving the contract rights of the parties. The prepayment of money to the proper officer to meet accruing claims for dues and assessments is a reasonable and- convenient method which is probably frequently employed. Under the testimony, the moneys paid in were in excess of that required, and hence some of the questions discussed are immaterial.
The matter of proof of loss is not a very important one in this case. In the first place, the beneficiary certificate does not prescribe a time within which proofs of death shall be made, but simply states that payment shall be made “within ninety days after satisfactory proof of his death.” -,Again, the by-laws provide that upon the death of a member the local president, local secretary and local examiner shall constitute a committee to inquire into the facts regarding the death and to make report to the officers of the general council. No specific provision is found requiring the beneficiary to furnish proofs of death within a specified period, or providing for forfeiture in the event of a failure to make it within a limited time. Aside from these considerations there were actual knowledge of the death and an extended examination by the officers of the association. The officers of that organization were not in a position to insist upon a forfeiture if the contract of insurance made the failure to provide proofs within a fixed time a ground of forfeiture.
These considerations cover the points properly raised by plaintiff in error, and from an examination of the record we are clearly of opinion that no prejudicial error was committed.
The judgment is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Cunningham, J.:
There are two questions raised by the plaintiff in error. The first is on the facts, it being claimed that the report of the re'feree and judgment of the district court are not binding upon this court; that, as all of the evidence introduced before the referee is in the record here, we may look into it as though we were trying the case de novo, and that upon doing so we will come to a conclusion different from that of the referee and trial court. Granting that the findings of the referee and their approval by the district court are not binding here, we have looked into the evidence enough to enable us to conclude that the findings are fully warranted thereby, and are such as meet with our approval.
The main contention in the case is that there was an accord upon, and a satisfaction of, the demands arising between the parties in this case; that inasmuch as the account submitted on the 10th day of March, 1898, struck what was denominated therein as a “balance,” and as the indorsement upon the draft indicated that it was for such “balance,” and as the letter accompanying the same contained the suggestion that a “balance” was therein remitted, as a matter of law Henderson could not accept such draft under these circumstances and afterward claim a further payment. An accord is an agreement, an adjustment, a settlement of former difficulties, and presupposes a difference, a disagreement, as to what is right. A satisfaction, in its legal significance in this connection, is a performance of the terms of the accord; if such terms require a payment of a sum of money, then that such payment has been made.
In this case there is no evidence of any disagreement between the parties prior to the sending of the account and remittance accompanying it. Plaintiff in error contends, however, that because such remittance was denominated a “balance” its acceptance constituted an accord and satisfaction, and cites a number of authorities where courts have held that a remittance made as a “balance” and the acceptance of the same amounted to an accord and satisfaction. These cases have all been carefully examined and in every one there appears to have been a prior disagreement, a contention as to what amount was due, so that a remittance, being dominated a “balance,” carried with it to the creditor, as a fair conclusion, that it was intended by the debtor to be in full of all demands. Without the requirement being made by the debtor that if the creditor accepts and retains the proffered amount he must do so in full satisfaction of his demand, or without accompanying and surrounding circumstances fairly indicating that such was the purpose and object of the debtor in making the remittance, a creditor cannot be said so to have accepted a payment. To constitute an accord and satisfaction in law, dependent upon the offer of the payment of money, it is necessary that the money be offered in full satisfaction of the demand or claim of the creditor, and be accompanied by such acts or declarations as amount to a condition that if the money be accepted it is to be in full satisfaction, and be of such character that the creditor is bound so to understand such offer. In Kingsville Preserving Co. v. Frank, 87 Ill. App. 586, it ;was held :
“To constitute an accord and satisfaction of a claim unliquidated and in dispute, it is necessary that the money should be offered in satisfaction of the claim, and the offer accompanied with such acts and declarations as amount to a condition that if the money is accepted it is to be in satisfaction, and such that the party to whom it is offered is bound to; understand therefrom that if he takes it he takes it subject to such condition.”
In Pottlitzer et al. v. Wesson et al., 8 Ind. App. 472, 35 N. E. 1030, a debtor sent his check in payment of an account. It was held that this-did not necessarily imply that if the creditor accepted the check he must have understood that his accepting it was in full of his claim ; hence there was no accord and satisfaction thereby shown. In Perkins v. Headley, 49 Mo. App. 556, it was held :
“Where a controversy as to the amount of the indebtedness exists between a creditor and his debtor, and the debtor tenders to the creditor the amount which he claims is due on condition that the acceptance of it should discharge the entire demand, the acceptance will constitute an accord and satisfaction as a matter of law, since one who accepts a conditional tender assents to the condition.”
But it was held in .this case :
“The mere fact that the plaintiff received from defendants less than the amount of his claim in silence, and with knowledge that defendants claimed to be indebted to him only to the extent of the payment made, did not conclusively and as matter of law establish an accord and satisfaction.”
In Beckman v. Birchard, 48 Neb. 805, 67 N. W. 784, where a payment of money was made as a balance due and the claim made that this was an accord and satisfaction, it was held: “A creditor who accepts money tendered by the debtor unconditionally does not by that act estop himself from maintaining an action to recover any further sum that may be due.” In Kruger v. Greer, 56 N. Y. Supp. 1015, an attoi’ney wrote to his client: “Enclosed you will find a statement of account, my receipted bill for profes sional services since our last settlement, and a check for $166.86, being the balance due you.” No other indication being found that this was intended as full settlement, the'court held": “The fact that plaintiff retained the check and the receipted statement, where the check contained no condition that it should be received in full payment, is insufficient to show an accord and satisfaction.” It was ruled in Brigham v. Dana, 29 Vt. 1:
“A sum of money paid and received will not operate as a full settlement although the payer so intended it, and would not have paid it if he had not understood that such would be its effect, but in reference to . which he made no such express condition, if the payee did not so understand it, and would not have received it upon such an understanding.” (See, also, 1 Cyc. 332.)
An accord and satisfaction is the result of an agreement between the parties, and, like all other agreements, must be consummated by a meeting of the minds of the parties, accompanied by a sufficient consideration. If the creditor is to be held to abate his claim against the debtor, it must be shown that he understood that he was doing so when he received the claimed consideration therefor. A simple tender of a “balance” as shown by an account tendered by the debtor does not carry with it an implication or conclusion that by such tender the debtor paid, or that the creditor agreed to receive, the same in full of the amount due, where there has been no prior disagreement or discussion as to what was actually due. Surely it cannot be claimed that such was the condition in the case at bar. It was shown in the evidence that the administrator had no knowledge of fees properly chargeable by attorneys in this state for services rendered, or that he even knew of the character and extent of the services which had been rendered. The sender of the check did not require its acceptance in full of all demands upon him as a condition precedent to- its acceptance. . The circumstances better warrant the conclusion that the sender was saying : ■“In my judgment these fees charged áre correct, and a proper remuneration for the services which I have rendered, and, in accordance with this view, the amount ■sent you is the balance that is due. If, however, after you have investigated you do not so conclude, we will hereafter have an adjustment of any difference that may then arise”; rather than: “I will give you no opportunity whatever to inquire as to the correctness of the charges I have made, and if you accept the draft it must foreclose all question.” The former view is most just to the-plaintiff in error, and it is the position that an honorable and fair-minded attorney would take. Under our statute he at best was only entitled to a lien upon the moneys which had come into his hands by virtue of his employment, to secure his properly charged fees. It was his duty to remit at once all such moneys less only such properly charged fees, if, indeed, we may make' this concession. He could not be permitted to charge extortionate fees, remit the “balance” as per his conclusion, and estop his client thereby.
We are fully persuaded that in this case there was no accord and satisfaction, and that the defendant in error is entitled to recover the amount found due by the referee. The judgment of the district court will be affirmed.
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The opinion of the court was delivered by
Harvey, C. J.:
This was an administrator’s action for the alleged wrongful death of Allen Risoni, sixteen years of age. The defendants were Clayton D. Carlson and his father, A. J. Carlson. Defendants joined in a demurrer to plaintiff’s amended petition upon the ground that it does not state facts sufficient to constitute a cause of action in favor of plaintiff and against defendants, and for the reason that it affirmatively shows on its face that plaintiff is barred from recovery. This demurrer was presented to and considered by the court and was sustained. Plaintiff has appealed.
In addition to other matters pertinent to such an action it was alleged that about 12:30 p. m. November 24, 1948, the decedent Bisoni and several other boys were invited by the defendant, Clayton D. Carlson, a minor under the age of sixteen years, to take a ride in a 1933 Ford coach owned by the defendant, A. J. Carlson, the automobile having defective steering apparatus and defective brakes; that Bisoni rode with Clayton D. Carlson south of Council Grove on state highway K 13, the highway being of gravel construction, with great amounts of loose gravel thereon and a gravel windrow several inches high on the west side thereof; that at a point about one mile south of Council Grove on the highway the defendant, Clayton D. Carlson, drove the car at a high, dangerous and excessive rate of speed in excess of fifty miles per hour; that Bisoni and other passengers of the car repeatedly asked Clayton D. Carlson to slow down and drive carefully, and Bisoni told the driver to stop so that he could get out of the car or he would jump out; that Clayton D. Carlson ignored the remonstrances and requests and failed to slow down and reduce his speed or to stop the car, and refused to allow Bisoni to get out of the car; that while traveling at the dangerous and excessive rate of speed Clayton D. Carlson caused the car to swerve from side to side on the graveled highway with reckless disregard to consequences, thereby losing control of the automobile and causing it to turn over, whereby Bisoni suffered a fractured skull, and as a direct result of the injuries so received died on the same day; that the death of Bisoni was directly caused by the gross and wanton negligence and careless act of the defendant, Clayton D. Carlson, previously alleged, and also by the gross and wanton negligence and careless acts of the defendant, Clayton D. Carlson, which were enumerated in separate paragraphs, substantially repeating what was previously alleged; that the Ford car in which Bisoni was riding and which was being driven by Clayton D. Carlson was the property of and belonged to the defendant, A. J. Carlson; that at the time Bisoni received the injuries which caused his death, and for a long time prior thereto, the exact time being unknown to plaintiff, Clayton D. Carlson was an incompetent, careless, reckless automobile driver; and that he habitually drove an automobile at a high, dangerous and excesive rate of speed upon the highways of Kansas without regard to the safety of other users of the highway and the condition of the road traveled, and with utter disregard of the rights of other persons; that at the time Bisoni received his injuries which resulted in his death, and for a long time prior thereto, which length of time plaintiff was unable to state, Clayton D. Carlson had the general reputation in the community of his residence as being an incompetent, careless, reckless automobile driver, all of which the defendant, A. J. Carlson, knew or had reasonable cause to know, and the defendant, A. J. Carlson, negligently allowed and permitted Clayton D. Carlson to use, drive and operate the car on the highways of the state at the time of the injuries and death of Bisoni, and at that time Clayton D. Carlson was driving the automobile with the permission of the defendant, A. J. Carlson.
With respect to the liability of A. J. Carlson, counsel for appellant argue that the allegations of the petition are ample, if established, to hold him liable either under the rules of the common law, as announced in Priestly v. Skourup, 142 Kan. 127, 45 P. 2d 852, and also under our statute (G. S. 1949, 8-222). Counsel for appellees readily admit that were it not for our “guest” statute (G. S. 1949, 8-122b) the petition states a cause of action against A. J. Carlson, but contend that unless plaintiff, under the allegations of the petition, is entitled to recover against the defendant, Clayton D. Carlson, under the guest statute, that he is not entitled to recover from either of the defendants. In support of that argument counsel for the appellees cite a number of authorities, most of them being cases from jurisdictions other than our own. We have read all these authorities and many more and find that none of them is directly in point. Many of them involve some question of agency between the owner and the operator of the car, or turn upon the doctrine of respondeat superior, neither of which is applicable here; others turn upon common law liability of the owner, or upon statutes unlike ours. We think we must decide the case upon our own statutes.
The sections of our statute in question were enacted at the same session of our legislature. G. S. 1949, 8-122b is section 1 of chapter 81, Laws of 1931, and became effective May 28, 1931. G. S. 1949, 8-222 is section 22 of chapter 80, Laws of 1931, and became effective on June 30, 1931. Neither makes any specific reference to the other. The statute relied upon by appellant reads:
“Every owner of a motor vehicle causing or knowingly permitting a minor under the age of sixteen years to drive such vehicle upon a highway, and any person who gives or furnishes' a motor vehicle to such minor, shall be jointly and severally liable with such minor for any damages caused by the negligence of such minor in driving such vehicle.” (G. S. 1949, 8-222).
Statutes of this kind extend the common law rule of liability of the owner. They have been sustained as a valid exercise of the police power and have been applied in harmony with their terms to the facts alleged or established. (See 5 Am. Jur. 732 to 738.) Our statute was upheld and applied in Shrout v. Rinker, 148 Kan. 820, 84 P. 2d 974. The negligence of A. J. Carlson occurred when he permitted his son Clayton to use the car on the highways, although the amount of his liability would be measured by the extent of the damages resulting from the negligence of Clayton in driving the car. The statute as applied here makes A. J. Carlson and Clayton “jointly and severally liable” for such damages. In Dickson v. Yates, 194 Iowa 910, 917, 188 N. W. 948, it was held:
“The joint liability of wrongdoers in tort is a joint and several liability, but exists only where the wrong itself is joint.”
In 62 C. J. 1130 begins a discussion of joint and several liability. Beginning at page 1132 it is said:
“Torts which are several, separate, and independent acts when committed do not become joint by the subsequent union or intermingling of their consequences where no concert of tortious action or consequence is intended by the parties or implied by law. . . .” (Citing many cases.)
See, also, 52 Am. Jur., Torts, § 112. Even there it is treated under general rules of law; here we have a statute fixing a severable liability. We think the word “severally” in the statute cannot be ignored.
Here the tort was not jointly committed. A. J. Carlson committed his wrong when he consented to Clayton D. Carlson driving the car, and Clayton D. Carlson having committed his wrong later when he was driving it. A. J. Carlson had previously made himself liable for any damages caused by Clayton’s negligence.
G. S. 1949, 8-122b, relied upon by appellees, reads:
“That no person who is transported by the owner or operator of a motor vehicle, as his guest, without payment for such transportation, shall have a cause of action for damages against such owner or operator for injury, death or damage, unless such injury, death or damage shall have resulted from the gross and wanton negligence of the operator of such motor vehicle.” (Our italics.)
Counsel for the appellant confend that the only “owner” men tioned in this statute is the one who is transporting a person who claims damages. That conclusion seems to be justified by the language of the statute, as seems clear by omitting the words we have italicised, “or operator,” in the two places where they occur. In this interpretation the statutes are not conflicting. We think the result is that A. J. Carlson is liable under G. S. 1949, 8-222, and that G. S. 1949, 8-122b, does not limit that liability.
The next question to be considered is whether Clayton D. Carlson can be held liable in damages under the allegations of the petition. These must be compared with our statute above quoted (G. S. 1949, 8-122b). Since Allen Bisoni was being transported in a motor vehicle by Clayton D. Carlson as his guest, Clayton is liable only if the death of Bisoni resulted from the gross and wanton negligence of Clayton. How to compare the alleged acts of Clayton with the statute is well stated in Bailey v. Resner 168 Kan. 439, 214 P. 2d 323, where the pertinent syllabus reads:
“To state a cause of action under G. S. 1935 (1949), 8-122b, the petition must allege facts tending to show that the host’s conscious conduct indicated a reckless disregard and complete indifference and unconcern for the probable consequences of his wrongful act, . . .”
And in the opinion (pp. 441,442) it was said:
“By many previous decisions of this court the phrase ‘gross and wanton negligence’ has been held to mean ‘wantonness’ (citations). What is wantonness and how should it be defined? This court has defined it in nearly a score of cases since the enactment of the guest statute in 1931 (citations), and it may be said that the sum total of these definitions expounded in the past amounts to this — a wanton act is something more than ordinary negligence, and yet it is something less than willful injury; to constitute wantonness, the act must indicate a realization of the imminence of danger and a reckless disregard and complete indifference and unconcern for the probable consequences of the wrongful act. It might be said to include a willful, purposeful, intentional act, but not necesarily so; it is sufficient if it indicates a reckless disregard for the rights of others with a total indifference to the consequences, although a catastrophe might be the natural result.”
And, quoting from Frazier v. Cities Service Oil Co., 159 Kan. 655, 157 P. 2d 822, at page 666, it was said:
“. . . to constitute wantonness the acts complained of must show not simply lack of due care, but that the actor must be deemed to have realized the imminence of injury to others from his acts and to have refrained from taking steps to prevent the injury because indifferent to whether it occurred or not. Stated in another way, if the actor has reason to believe his act may injure an-. other, and does it being indifferent to whether or not it injures, he is guilty of wanton conduct.”
This was quoted and followed in In re Estate of Wright, 170 Kan. 600-607, 228 P. 2d 911, as an appropriate test of what constitutes wantonness. (See, also, Fyne v. Emmett, 171 Kan. 383, 388, 233 P. 2d 496.)
Examining the petition in the light of the authorities just cited it is noted that in the petition it is alleged that the car was a 1933 Ford coach (fifteen years old at the time of the tragedy here involved), with defective steering apparatus and defective brakes; that the highway was of gravel construction with great amounts of loose gravel thereon; that Clayton D. Carlson drove the car at a high, dangerous and excessive rate of speed, in excess of fifty miles per hour; that Bisoni and other passengers in the car asked the driver to slow down and to drive carefully, and Bisoni told the driver to slow down so he could get out of the car ór he would jump out; that Clayton D. Carlson ignored these requests and failed and refused to reduce the speed of the car and refused to allow Bisoni to get out of the car, and while traveling at the speed named Clayton D. Carlson caused the car to swerve from side to side of the highway, thereby losing control of the car and causing it to turn over, with the result that Bisoni was thrown from the car and killed. We are told the petition was not motioned, hence it must be construed favorably for the pleader, and for the purpose of the demurrer all of these allegations are admitted. We are unable to say as a matter of law that these allegations here admitted, if established by proof, would be insufficient to sustain a verdict for plaintiff against Clayton D. Carlson under our guest statute. It is well settled by. the authorities that where a driver ignores appropriate and repeated admonitions to use care, the fact he does not do so may be considered in determining the state of mind of the driver in concluding whether his conduct was reckless. (See, Titus v. Lonergan, 322 Mich. 112, 33 N. W. 2d 685, where many cases are cited on this point.)
Finally, counsel for appellees argue that plaintiff cannot recover because of the contributory negligence of Bisoni. This point lacks substantial merit. At best it is a question for the jury.
For the reasons above stated it necessarily follows that the trial court erred in sustaining defendants’ joint demurrer to plaintiff’s amended petition. The judgment of the trial court is reversed with directions to overrule the demurrer.
Thiele, J., dissents from paragraph 2 of the syllabus. | [
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Per Curiam:
This action was brought on an account for services and expenses in feeding, handling and otherwise caring for cattle belonging to the El Capitan Land and Cattle Company by J. A. Hookett, and also for commissions for selling cattle for said company. Hookett assigned his claim to plaintiff, E. H. Lees. The defendant below-offered no evidence. Judgment was for plaintiff, to reverse-which the plaintiff in error prosecutes this proceeding.
The principal contention of plaintiff in error is that the-verdict was not sustained by sufficient evidence. The account was itemized, and Hookett, one of the witnesses: for plaintiff, testified to the correctness of each item, and he was not disputed or contradicted. This, we think, is-sufficient to uphold the verdict.
Complaint is made of one of the instructions of the-court and of the refusal of the court to permit defendant to show, by a cross-examination of one of the plaintiff’s witnesses, that a certain transaction to which the witness-had testified at a former trial was brought out on his cross-examination. There is nothing substantial in either of these contentions.
The judgment of the court below is affirmed.
Mason, J., not sitting. | [
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The opinion of the court was delivered by
Cunningham, J.:
The defendant in error brought an action in the district court of Osage county against the plaintiffs in error to recover damages on account of personal injuries. The plaintiffs in error, who as receivers were operating the Atchison, Topeka & Santa Fe railroad, found it necessary to dig a trench on the south side of the track, between it and the Marais des Cygnes river, about a mile east of Quenemo, for the purpose of riprapping the bank in order to prevent the river from washing away the road-bed and track. The work had progressed some three or four days be fore the defendant in error entered into the employment of the plaintiffs in error to dig in such trench, but the trench had been excavated only to a depth of two or three feet at that time. He commenced work on the 21st day of September, 1895, and continued at such work until the 9th day of October, when he was injured. At that time the trench was from nine to twelve or thirteen feet deep. The tools with which he worked were the ordinary pick and shovel. The soil through which the trench was dug was a sandy loam of a dark gray color. Defendant in error was about thirty-five years old, in good health, of ordinary intelligence, and possessed the ordinary faculties of sight and observation. Prior to entering the employment of the receivers he had worked some at quarrying stone, mining coal, and digging wells, and possessed information which would ordinarily be secured by one under those conditions. He was given no particular instructions as to what to do, when he hired to the receivers, except that he was wanted to dig in the trench with the other men. There were some nine or ten other men employed on this work. The work was in charge of a foreman named Bell for a few days, when another man, who was supposed to know more about the work in hand, was sent to take charge. No effort was made at any time by shoring or otherwise to prevent the caving in of the trench. No demand was made by the plaintiff at any time that any precautions be taken to that end or promises made by any one that such precautions would be taken.
For several days before Scott was injured he expressed his fears that a cave-in would occur, and it seems that the matter was talked over considerably by him with the other laborers and with the boss. He expressed himself on several occasions as being fearful that such an accident would occur. In this he was joined by some of his fellows, while others thought that he was wrong, and that everything was safe'. The boss assured the plaintiff that there was no danger.
On the evening of the 8th of October Scott expressed in very decided terms his belief that a cave-in would occur before morning, and in a jocular way made a bet with the boss that one would occur during the night. The boss,however, still asserted that it would not. In the morning attention was called to the fact that no cave-in had occurred, but Scott still expressed his opinion that it was not safe to work in the trench , and that somebody would be hurt, and he pointed out two or three places where he thought likely a cave-in would occur. On the morning of the 9th of October he, with some fellow laborers, was employed for a short time on the surface of the ground, but was finally directed by the. boss to “get ready for the mud,” which direction was understood to mean to put on their rubber boots and go into the trench. This they did. They had scarcely arrived at the place where they were to work when a cave-in did occur and Scott was injured. The trench was about nine feet deep at that place.
While the jury found in one of their special findings that he was injured at one of the places which he had previously pointed out as dangerous, the plaintiff’s evidence seems to be that it was at another place. It is probable, however, that the injury occurred practically at one of the points which he had indicated. There was nothing in the evidence to show that the boss went into the trench to inspect the conditions, there. It was shown that the proper and safe method of digging the trench would have been to slope the' sides, or else to prop or shore the banks. Plaintiff had noticed and called attention to the fact that water was seeping in from the river, that the ground trembled when the cars were passing along the track, and that there were cracks in the side of the trench, all of which indicated that a cave-in was imminent.
These are the facts substantially as they appeared from the testimony introduced by the plaintiff.
Defendants below demurred to the same, and the demurrer was overruled. The defendants introduced no evidence, but stood upon their demurrer. The jury rendered a verdict for the plaintiff, on which judgment was entered, and the case was taken to the court of appeals, where it was affirmed, and is now before this court upon certification.
The plaintiffs in error contend that this is a case in which the defendant in error assumed the risks of his employment which were apparent. On the other hand, defendant in error contends that he had aright to rely upon the superior judgment and knowledge of the boss in charge. While we think that the doctrine of assumed risks is in some respects a harsh one, and its application should not be enlarged, at the same time we are unable to distinguish this from many cases already decided by this court and courts of last resort in other states applying that doctrine.
It does not appear that the boss had any superior knowledge or opportunities of knowledge to those possessed by the defendant in error. It does not appear that he went into the trench to make any inspection. It does not appear that he claimed to have any superior knowledge. It does appear that the defendant in error had as great opportúnity to know all the conditions as did the boss, if not greater. He was fully alive to all the dangers of his employment and knew the conditions as completely as any one could. It was his judgment and belief that a cave-in would occur. It was the judgment and belief of some of his fellows, as well as the boss, that it would not occur. For some reason or other — because he wished the wages which his labor would bring, or because he finally concluded to rely on the judgment of others — he concluded to continue in the employment. In doing so he took upon himself all the risks attendant thereon, and having been injured is without remedy. The injury occurred by the operation of natural laws, the force and effect of which the defendant in error was as capable to determine as any one. He may not, having taken the risks which were apparent, which he knew aud realized, shift the results when injury has occurred.
See S. K. Rly. Co. v. Drake, 53 Kan. 1, 35 Pac. 825 ; A. T. & S. F. Rld. Co. v. Schroeder, 47 id. 315, 27 Pac. 965; Rush, Adm’x, v. Mo. Pac. Rly. Co., 36 id. 129, 133, 12 Pac. 582; S. K. Rly. Co. v. Moore, 49 id. 616, 31 Pac. 138; Clark v. Mo. Pac. Rly. Co., 48 id. 654, 24 Pac. 1138; Walsh v. St. Paul & Duluth R. Co., 27 Minn. 367, 8 N. W. 145 ; Pederson v. City of Rushford, 41 id. 289, 42 N. W. 1063; Swanson v. Great Northern Ry. Co., 68 id. 184, 70 N. W. 978; Reiter v. Winona & St. P. R. Co., 72 id. 225, 75 N. W. 219 ; District of Columbia v. McElligott, 117 U. S. 621, 6 Sup. Ct. 884, 29 L. Ed. 946 ; Watson v. The Kansas & Texas Coal Co., 52 Mo. App. 366; Brown v. Electric Railway Co., 101 Tenn. 252, 47 S. W. 415; Louisville & Nashville Railroad Company v. Stutts, 105 Ala. 368, 17 South. 29 ; Borden v. Daisy Roller Mill Co., 98 Wis. 407, 74 N. W. 91.
The defendant in error cites three cases which he seems to think require us to overrule the doctrine of the cases which we have cited. The first is Shortel v. The City of St. Joseph, 104 Mo. 114, 16 S. W. 397, 24 Am. St. Rep. 317. This was a case in which the plaintiff, who was a day laborer not skilled in the work which he was told to do, and not aware of the dangers thereof, was directed by a skilled engineer to go under an arch and remove the supports thereof. Relying on the assurance that the cement which had been used in the construction thereof was sufficiently hardened to prevent a fall of such arch, plaintiff did so, whereupon the arch fell in and injured him. It was held that he had a right to recover. It was said in that case : -
“Though the servant is ordered into a place of danger, still, if the danger is so obvious that a prudent person, though acting in the capacity of a servant, would not obey the order, then he will be guilty of contributory negligence which will defeat a recovery.” (Page 120.)
Neither the facts nor the law of the case cited sustain the contention of the defendant in error.
We are also cited to the case of Carlson v. Northwestern Telephone Exchange Co., 63 Minn. 428, 65 N. W. 914. It appears that plaintiff was engaged in digging a deep ditch. Observing the indications of danger of a cave-in, he complained to the person in charge of the work, whereupon he was sent to another portion of the work, and an effort made to. make the first point safe by curbing the same ; but this curbing was defectively put in, and the ditch was still an unsafe and dangerous place in which to work. Plaintiff was then directed to return to this place and continue his work. There was no indication but that the curbing had made the work safe, and no information concerning its insufficiency or caution to the plaintiff was given. Under these circumstances plaintiff was injured. The law was stated in the syllabus as follows:
“The foreman negligently ordered the plaintiff from the place where he had been vi orking into the ditch,
at a point where he had not previously worked, which was a place of unusual danger by reason of a crack in the earth on the side of the ditch and defects in the curbing, which danger and defects were not obvious or known to the plaintiff, who obeyed the order, and was injured by the caving in of the ditch. Held, that in giving the order the foreman was a vice-principal and the defendant liable for his negligence.”
The third case is that of Stephens v. The Hannibal & St. J. Ry. Co., 96 Mo. 207, 9 S. W. 589, where the facts and the law were stated in the following syllabus;
‘‘ Plaintiff, a section-hand in the defendant’s employ: ment, was directed by the foreman to get off the track on which they were working to make wav for a train. He did so, but called the foreman’s attention to some stones left on the track. The latter said, ‘It is time you were getting them off.’ Plaintiff understood this as an order and when the train was ab<5ut 100 yards away and rapidly approaching attempted to move them, when .he was struck by the engine and injured. Held, that the evidence did not show that the danger was so open and obvious to plaintiff that he ought to have refused to obey the order, and that a demurrer to the evidence was properly overruled.”
In the body of the opinion the court used this language. : ‘ ‘ Generally, a servant cann ot recover for those injuries resulting from causes seen and known by him.”
We do not think that any of these cases sustain the contention of the defendant in error, but rather maintain the position which we take in this case.
The judgment of the court of appeals, as well as that of the district court of Osage county, will be reversed, with instructions to sustain the demurrer of the plaintiffs in error to the evidence of defendant in error, and to render judgment in favor of the plaintiffs in error for costs.'
All the Justices concurring. | [
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The opinion of the court was delivered by
Pollock, J. :
The Bartholomew Real Estate and Investment Company brought an action against J. M. Kennedy to recover the sum of $180 rent, before C. H. Nagle, a justice of the peace of Topeka township, Shawnee county. It filed therein an affidavit and' bond in attachment and procured the issuance and levy of a writ of attachment. The bond in attachment was in the penal sum of $360, with plaintiff in-error, William Sims, as surety thereon. Thereafter the case was removed upon change of venue before T. T. Wright, a justice of the peace of Soldier township, for trial. Before the trial, however, plaintiff dismissed the action. A portion of the property seized in attachment had been sold under an order of' the court. Upon the dismissal of the action the constable returned the property remaining unsold to defendant, and turned over the proceeds of the property sold to him. Thereupon Kennedy commenced this-action in justice’s court, before T. T. Wright, justice-of the peace of Soldier township, against Sims, surety on the attachment bond, to recover his damages sustained by reason of the wrongful attachment, alleged to be in the full penalty fixed 'in the bond, $360. Plaintiff had judgment in the sum of $50. He appealed to the district court; where, upon a retrial he recovered verdict and judgment, in the sum of $360. The defendant brings error.
> The one question we shall consider is that of jurisdiction. It is decisive of the case and arises in this way:. In the district court defendant moved to dismiss the action for the reason that the justice before whom the action was brought had no jurisdiction over the subject-matter of the action; and, as a necessary . consequence, the justice being without jurisdiction, it followed that the district court acquired none on plaintiff’s appeal from the judgment rendered in the justice’s court. It must be conceded that if there was no jurisdiction of the justice’s court over the subject-matter of the action, plaintiff could not by appeal confer jurisdiction on the district court. (Armour v. Howe, 62 Kan. 587 , 64 Pac. 42.) Did the justice’s court, wherein the action was brought, have jurisdiction of the subject-matter of the action ? The statute, section 5231, General Statutes of 1901, provides:
“In actions founded upon an undertaking given in pursuance of law in any civil proceeding pending before a justice, such justice or his successor in office shall have jurisdiction thereof where .the sum due or demanded on such undertaking does not exceed five hundred dollars.”
The jurisdiction of a justice of the peace is purely statutory. Statutes conferring jurisdiction upon justices of the peace are strictly construed, and will not, by construction, be aided or extended by inference or implication beyond their express terms. (18 A. & E. Encycl. of L., 2d ed., 17, and cases cited.) As this action was brought upon an attachment bond filed in an action then pending in justice’s court before Nagle, a justice of the peace of Topeka township, before Wright, a justice of the peace of Soldier township, before whom the action was removed for trial after the giving of the attachment bond, it is clear that such justice was not the justice before whom the action was pending at the time the bond was given, nor was he- the successor of such justice. As the above statute is the sole authority for the exercise of jurisdiction in this case, and as that statute in express terms does not confer jurisdiction upon Wright, a justice of the peace of Soldier township, on an attachment bond filed in an action pending beforeNagle, a justice of the peace of Topeka township, to entertain an action wherein the damages claimed by plaintiff were $360, it follows that the justice had no jurisdiction, and, as such justice had no jurisdic tion, no jurisdiction was conferred upon the district court by plaintiff's appeal.
The judgment rendered must therefore be reversed, with directions to sustain the motion to dismiss -the case from the district court-.
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Per Curiam:
This action in forcible entry and detainer was brought before a justice of the peace by Wm. S. Bradbury. An appeal was taken to the district court. Plaintiff recovered judgment, from which defendant prosecutes error.
It appears that prior to the trial in the district court the plaintiff had recovered judgment in that court in an action brought by the defendant in this action to enforce the specific performance of a contract made by Wm. S. Bradbury to convey to’her the real estate described in this complaint. On the trial it was stated by counsel for the defendant that, the defense in this action was based entirely upon the facts set out in her petition for specific performance. Thereupon the court excluded all' evidence offered by defendant and held that the judgment in the case of Burnell v. Bradbury for specific performance was res judicata as to the contract relied on by the defendant, and ordered the jury to return a verdict for plaintiff. This is the only material and substantial error of which complaint is made. Upon this question we think the ruling of the court below was correct. It had been judicially determined between the parties in the action for specific performance that under said contract defendant, in this action had no right or interest in the land involved in this controversy. ,
The judgment of the court below is affirmed. | [
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Tne opinion of the court was delivered by
Bunch, J. :
The petition in this action was in the usual form for the recovery of specific real property with damages for its detention. The answer was a general denial. Upon a final trial before the court special findings of fact and conclusions of law were made. A motion for a new trial, duly filed, was over-' ruled, and judgment was entered pursuant to the conclusions of law for the plaintiffs. The defendants, Henry E. Shuler and wife, prosecute error to this court.
The findings of fact and conclusions of law were as follows:
“1. On April 8, 1879, Asa Shuler purchased the property described in plaintiff’s petition, and became the owner thereof by warranty deed from George Renick, a widower.
“2. At the time of the purchase of this property by Asa Shuler a verbal arrangement and agreement was had between Asa Shuler and his brother, Mandes Shuler, by which it was agreed that Mandes Shuler should occupy the land in controversy as a home for himself and family. Mandes Shuler and family moved upon said land under this arrangement and verbal agreement in the spring of 1879. It was further verbally arranged and understood between Asa Shuler and Mandes Shuler that Asa Shuler was to furnish Mandes Shuler the necessary money to erect a dwelling-house and stable upon the land in controversy; and Mandes Shuler was to pay the taxes upon the land and occupy it free of rent. Mandes Shuler was to repay to Asa Shuler the amount of money so advanced for the building of said house and stable upon said land, and upon his doing so Asa Shuler was to convey to Mandes Shuler that part of the property in controversy which is southeast of the Shunganunga creek. Under this arrangement and understanding Asa Shuler furnished Mandes Shuler $1000 to erect a dwelling-house and stable upon said land.
“Maudes Shuler has never repaid or offered to repay Asa Shuler the amount of money so advanced to him by Asa Shuler for the building of said house and stable upon said property.
“8. In 1887 Mandes Shuler left the land in controversy and moved to California where he has ever since remained and now resides, with no intention or purpose of returning to Kansas.
“4. Mandes Shuler and his two sons, Frank Shuler and Henry E. Shuler, occupied and farmed the land in controversy during the year 1886; and during the year 1887 Henry E. Shuler occupied and farmed said land as the tenant of Mandes Shuler, agreeing to pay therefor $300 as rent, all taxes upon the property, and to support Mandes Shuler.
“5. The defendant, Henry Shuler, has not contributed anything towards the support of Mandes Shuler since said Mandes Shuler left said farm in 1887.
“6. Mandes Shuler does not claim any interest in or to the property in controversy.
“7. The defendant, Henry E. Shuler, has occupied the land in controversy by himself and tenants since Mandes Shuler left the same and went to California. Said Henry E. Shuler was' married in 1889, since which time both he and his wife have lived upon said land.
“8. Mandes Shuler has never assigned or transferred to Henry E. Shuler any claim that he may have had upon the premises in controversy under and by virtue of any agreement between himself and Asa Shuler.
“9. Asa Shuler died testate at Hamilton, Ohio, in May, 1895, the owner of the property in controversy. Under and by virtue of the last will and testament of said Asa Shuler, Angeline Lashor, Charles A. Shuler, William B. Shuler, Ella Shuler, Doron and Mamie Shuler became the owners of said property in controversy.
“10. On the 29th day of May, 1896, Mary A. Shuler, widow of Asa Shuler, deceased'; William B. Shuler and Luella Shuler, his wife ; and Charles A. Shuler and Susan C. Shuler, his wife, conveyed to the plaintiffs all of their interest in and to the property in controversy.
“11. During the time Henry E. Shuler occupied said premises in controversy he has leased portions thereof to other parties.
“12. From 1887 to 1893 the defendant, Henry E. Shuler, paid the taxes upon said land, taking receipts therefor in the name of Mandes Shuler.
“13. Asa Shuler visited the defendants, Henry E. Shuler and wife, residing upon the premises in controversy from once to twice a year covering a period of several years prior to his death, and on several occasions expressed an intention of conveying the property in controversy to defendant Henry E. Shuler or to him and his wife, but no definite agreement to that effect, either oral or otherwise, was ever entered into between Asa Shuler and these defendants; and the court is unable to determine at what time or upon what conveyance was to be made. No conveyance was ever made and no writing executed to show the purpose or intention on the part of Asa Shuler.
“14. No demand was made by Asa Shuler upon defendant, Henry E. Shuler or his wife, during the time they occupied said land, but Asa Shuler'was given to understand that defendant, Henry E. Shuler, was paying the taxes upon the land in controversy.
“15. The defendant, Henry E. Shuler, by words and acts, recognized the title of this property in controversy to be in Asa Shuler up to the time of his death.
“16. After the death of Asa Shuler, defendant, Henry E. Shuler, recognized the plaintiffs and their immediate grantors as the owners of the property in controversy both by his acts and declarations.
“17. The rental value of the land in controversy for the three years immediately prior to the commencement of this suit was $900 per year.
“18. The plaintiffs are now and were at the time of the-commencement of this suit the owners of, and entitled to, the possession of the property in controversy.
“19. During the time Henry E. Shuler occupied said premises he made some improvements upon the same by repairing the house and building a fence, aggregating in the neighborhood of $2000 in value. But the rental value of the premises during the time he occupied it free of rent largely exceeded any improvements placed thereon by him.”
CONCLUSIONS ON LAW.
“1. That the plaintiffs are the owners of and entitled to the possession of the property described in their petition.
“2. That plaintiffs are entitled to judgment against Henry E. Shuler for $2700.”
These findings do not show that Asa Shuler ever persuaded or induced Henry E. Shuler to abandon his home and make a new one, or to abandon any chosen occupation, employment, or course of life, and take up another. They do not show that Henry E. Shuler ever took possession of the land in controversy, or ever returned to it after an absence, through any inducement, persuasion, request or importunity of Asa Shuler. They do not show that Henry E. Shuler has spent the flower of his days, the prime of his manhood, or any money, or that his wife has spent any money, in improving the land in controversy, on the faith of any promise or agreement whatever that it would belong to them or either of them. They do not show that Henry E. Shuler was ignorant of his rights, or that he misapprehended them, when by words and acts he recognized the title of the property in controversy to be in Asa Shuler up to th,e time of his death, or when, after the death of Asa Shuler, he recognized the plaintiffs and their immediate grantors to be the owners of the property both by his acts and by his declarations. They do not show the “factum” of any contract whatever between Asa Shuler and Henry E. Shuler relating to the title to the land, but they expressly state that no such agreement, either oral or written, ever existed. Although not found to be true by the court the attorney for plaintiffs in error assumes all these things, and some others, to be es tablished facts, and to be so material to the case as to require a reversal of the judgment.
At least seven of the specifications of error are based upon matters suggested by fragments of evidence excluded from the findings of fact, but treated as of controling importance. Forty-six of the fifty-three paragraphs of the brief supposed to be devoted to a statement of essential facts are occupied with retailing specific items of evidence as if they had been found by the court, while the ultimate facts embodied in the findings are ignored. Under these circumstances, in order to arrive .at a decision, it is necessary to determine how far, if at all, the findings of fact are conclusive.
This court has no authority to make findings of fact or to canvas evidence for that purpose. Its function is to review alleged errors. When the district court was requested to make findings of fact it was its duty to find the material facts established by the evidence so that exceptións might be taken to its views of the law involved in the trial. (Gen. Stat. 1901, §4737.) Error in this respect will not be presumed but must be affirmatively shown. In order to convict the trial court of error its judgment must have been challenged upon the»particular matter in debate.
“Of course the court is not bound to make special findings concerning immaterial facts, nor is the court bound to find the material facts in any greater detail than is really necessary for the correct decision by a higher court of the questions of law involved in the case . . . And of course, where the court attempts to make special findings, as requested by a party, and inadvertently fails to make a special finding upon some particular matter in controversy, or makes such finding in too general terms, the court does not thereby commit substantial error, unless its attention is first called to the omission to find, or to the defective find ing, and it then fails or refuses to correct the same.” (Briggs v. Eggan, 17 Kan. 589, 591.)
“If the plaintiff was not satisfied with the findings of fact, he should have asked the trial court to make further findings, or modify those made.” (Cowling v. Greenleaf, 33 Kan. 570.)
Such an application to the court should not be delayed until the motion for a new trial. If material facts have been proved, but not found, the wrong done should be remedied by requiring a finding and thereby obviating the necessity of any new trial; and only in the event of a refusal of the court to make the correction, or to supply the omission, does ground for a new trial exist.
In this case no question has been raised, either in the trial court or in this court, as to the completeness or comprehensiveness of the findings of fact. No motion was made for the modification of any finding so as to include additional facts, and no request was made for any further or additional findings, and since no rulings upon those subjects were demanded, no errors in those respects can be alleged. Therefore, the plaintiffs in error are precluded from contending that the findings made do not embrace all the essential facts of the controversy established by the proof, and this court is precluded from considering any facts not found by the trial court. In view of the foregoing conclusions, specifications of error numbered 2, 3, 5, 6, 7, 8, and 33, all involving radical assumptions of fact not embraced in the findings, cannot be considered.
The first specification makes an attack upon a conclusion of law not found among those returned by the court or pointed out as occurring elsewhere in the proceedings. While the question may be interesting, no reason appears for discussing it.
The fourth specification relates to the exclusion of evidence. Upon direct examination Henry E. Shuler was interrogated regarding a communication had personally with his deceased uncle, Asa Shuler, with the following result:
“Ques. Did you see your uncle at Wichita? Ans. Yes sir.
“Q. Did you have any conversation with your uncle at Wichita? A. I did, yes sir.
“Q. Was it in reference to this place ? A. Yes sir.
“Q. Was it in reference to your going back to the place? Counsel for the plaintiffs objected to the question as incompetent, irrelevant and immaterial. The court sustained the objection ; to which ruling of the court the defendant duly excepted.”
It is now asserted with much vehemence that this conversation would have cleared up all doubt as to Henry E. Shuler’s right to the land. If so, the witness should have been asked to state the conversation. The question, “Was it in reference to your going back to the place ?” sufficiently established the bearing of the conversation upon the subject-matter of the suit to make it admissible if otherwise proper, and if counsel frankly intended to offer it no subterfuge was required. Conclusions of the witness as to the bearing of the conversation were not legal evidence, and since no offer of the conversation itself was made no error appears.
The ninth specification of error to the effect that the exemplification of the will of Asa Shuler was not properly authenticated is trivial. Both a clerk’s certificate and a presiding judge’s certificate appear.
The argument upon specification 10 assumes that Henry E. Shuler was a vendee of the land fay virtue of an oral promise. The court specially found otherwise.
The eleventh specification relates to evidence excluded. Henry E. Shuler gave testimony regarding a conversation between his wife and Asa Shuler held in his presence, as follows :
“Ques. What did he say to Mrs. Shuler there? Ans. Why, he wanted to know why we didn’t have another kitchen or a larger one or one out more by itself — we were a little crowded for room — and my wife said we were thinking of building a kitchen, but hadn’t really been able to, and didn’t know whether we really ought to or not, and he went over the same thing again. He says, ‘Go ahead, fix it up to suit yourself ; build whatever you want to ; it is yours anyway.’
“Counsel for the plaintiffs objected to the question and answer as incompetent, irrelevant, and immaterial, and because the witness is not competent to testify. The court sustained the objection, to which ruling of the court the defendants duly excepted.”
If it be conceded that the answer should have been allowed to stand, no prejudicial error was committed. It will be noted the witness stated, “He went over the same thing again.” Against objection the witness had just been allowed to testify to a conversation between his wife and Asa Shuler in which almost identical language was used in connection with the subject of building a bow window to the house, and without objection the witness was immediately afterward allowed to testify to another conversation between the same parties of precisely similar import in connection with a proposition to remove a wall and rearrange the rooms. A subsequent motion to strike out this testimony was overruled. If the court believed Asa Shuler made the statements attributed to him at all, it made little difference whether they were made three times or only twice.
By the twelfth specification it is charged that the district court erred in sustaining an objection to this question put to Henry E. Shuler: “When you went on the place in 1886, what, if anything, did your father say to you with reference to coming on the place?” No attempt is made to show how this conversation could bind Asa Shuler, and hence the plaintiffs in this action. Without this the ruling must stand.
The thirteenth specification makes the same asseveration of error as constituted the burden of the fourth, apparently in utter forgetfulness of the previous fulmination.
The fourteenth specification deals with the rejection of evidence. Henry E. Shuler went to Ohio at the time of Asa Shuler’s funeral there. The court refused to permit him to answer the question, “At the time you went on there did you suppose the place had been deeded to you?” Later in the trial, however, Henry E. Shuler was examined minutely upon apparently every supposition he ever had relating to the title to the land, and given full opportunity to describe all his states of mind regarding it. Hence he could not have been harmed by the ruling challenged.
Specifications 15, 16, 17,;18, 19,. and 20, complain of the cross-examination of Henry E. Shuler. The contention of the plaintiffs was that the defendants were opposing them with a clumsily contrived scheme to loot the estate of Asa Shuler. The widest latitude is always allowed in the cross-examination of a party suspected of fraudulent designs, and the discretion of the court in that respect was not abused in this case.
Specifications 21, 22, and 28, impugn the conduct of the trial court because certain letters from Henry E. Shuler’s cousin to -himself were excluded. No reasons are offered for overturning the judgment of the trial court on this account, and none being obvious the ruling will not be disturbed.
Specifications numbered 24, 25, 26, 27, 28, 29, 30, and 31, challenge in various forms the findings of fact, the conclusions of law, and the correctness of the judgment rendered. The findings respond to the issues, cover every fact essential to recovery by the plaintiffs, are all sustained by sufficient competent evidence, and are in harmony with the apparent weight of the evidence. The conclusions of law are legitimate deductions from the facts found and the judgment follows as a necessary and inevitable consequence. The motion, for a new trial on the ground of newly-discovered evidence was substantially nothing more than an application for an opportunity to retry the case upon a different theory and was rightfully denied. And since the decision of the trial court was consonant' with the law and the facts it must be approved.
Only one specification of error remains — number 32 — which is as follows :
“It was error in the trial court to fail to decree compensation and a lien both to Henry and his wife to secure the same before giving plaintiffs possession even if the evidence was insufficient to justify a decree for specific preformance.”
Under the findings of fact Henry E. Shuler could scarcely have any claim for compensation or be awarded any lien and his situation needs no further consideration. In specification 6 it was asserted, as in the one under discussion, that Mrs. Shuler should be allowed some equitable lien to reimburse her for advancements going to the improvement of the property before she could be ejected from it. This plea was foreclosed by the following conduct of her counsel, exhibited at the tidal of the cause:
“Mr. Histed : Does Mrs. Shuler disclaim any interest in or to any of this property ?
. “Mr. Chesney: Just let me consult with my brother counsel a moment and I think we can settle that question for you in a minute. (Defendant’s counsel withdraw from the court-room for consultation.)
“ Mr. Chesney : In this case we fully disclaim every right except just such rights as a wife has by being a wife. She has no individual lien in any respect whatever for this money that she loaned him. We had expected to file a disclaimer as to that all along ; in other words, we have all along felt that she w'as improperly joined.’’
The judgment of the district court is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, O. J.:
This is a proceeding by a creditor to enforce a stockholder’s individual liability for the debts of a corporation against the estate of H. C. Cook. E. B. Crissey, the plaintiff, who had been a stockholder and an officer of the Interstate Loan and Trust Company, recovered a judgment against the company for $5289. Execution on this judgment was returned unsatisfied. H. O. Cook held stock in the company in the sum of $2000 from 1886, but had only paid one-half the face value thereof, leaving $1000 due thereon. During the years' of 1890 and 1891 assessments to the extent of thirty-seven per cent, were made against the stock held by Cook, but he made no payments on any of these calls. At the stockholders’ meeting in 1891 a resolution was passed directing the board of trustees to forfeit to the corporation defaulted stock. On March 28, 1892, in pursuance of the directions of the stockholders, the board of trustees passed the following resolution :
“Resolved, That the capital stock upon which assessments levied have not been paid be, and the same is, hereby declared forfeited : Provided, however, that the secretary notify each stockholder who has failed to pay his assessments to do so, with interest, within thirty days after such notification, which'notification shall be sent by mail to last-known address of said stockholder ; otherwise his stock is forfeited, and the capital stock of each stockholder complying with such notification is exempt from forfeiture.”
On April 14, 1892, the secretary of the company notified H. C. Cook of the action of the trustees, declaring that unless the assessments were paid within thirty days from the notice his stock in the corporation would be forfeited. The stock was declared to be forfeited and an entry Of the same was made on the stock-books of the company. Prior to this time, and on June 2, 1891, Cook, in response to a letter from the president of the company, urging the payment of the assessments, wrote a letter stating that it was utterly impossible for him to pay any further assessments on the stock in that company. No protest against the forfeiture was ever made by Cook and there was complete acquiescence on his part to the action taken during his lifetime. He died in June, 1898, and this proceeding was not brought until March, 1900. These facts, with others, were specially found by the trial court, and the conclusion was reached that Cook was not a stockholder of the company at the time of his death and that his estate was not liable for the claim of the plaintiff.
The principal question in the case is whether the stockholding relation of Cook to the corporation had been severed by the steps taken, or, rather, whether at the time of his death he was entitled to the privileges, and subject to the liabilities, of a stockholder. If Cook could not have insisted on recognition as a stockholder and a right to share in the distribution of assets, his creditor can hardly insist that he was liable as a stockholder or that his estate is subject to a stockholder’s liability. Especi'allyis this true where the transactions are free from fraud or collusion, such as an attempt by the officers of an insolvent corporation to relieve a stockholder from liability. In this case the court specially found that during all the time of these transactions, so far as the evidence shows, the company was solvent and a going concern, and that the transactions between the company and Cook, as a stockholder, were made in good faith and were free from fraud. Under the facts found it must be held that the steps taken in declaring the forfeiture were in substantial compliance with the law, and that the forfeiture declared is effective and binding on all the parties concerned.
The forfeiture is challenged on the ground that it is not based upon a by-law. The statute does not make the adoption of a by-law an essential step in a declaration of forfeiture. It does provide that the directors of a corporation shall require subscribers to the capital stock to pay their subscriptions in such manner and instalments as the by-laws may provide. (Gen. Stat. 1901, § 1289.) It was not shown that by-laws regulating payments on stock subscriptions had been passed. A subscription to the stock of a corporation of course implies an agreement to pay for the shares, and a by-law in respect to payment is but a regulation between the corporation and the subscriber. If the steps taken, however, although informal, are treated as sufficient by the corporation and the subscriber, they will be deemed to be binding. The calls upon the subscriptions appear to have been made on general resolutions passed with as much formality as is necessary for the enactment of by-laws. Mr. Cook was aware that the assessments had been made, and positively declared that no further payments could be made by him. He did not question the regularity of the call nor the sufficiency of the notice. Payment had not been made of the amount due on his stock. His default was practically acknowledged by him in a letter to the president. He will be deemed to have had knowledge of the proceedings of the company in the several calls for assessments, and as these calls were made in resolutions substantially in the form of by-laws, it certainly cannot be contended that they were illegal or such an irregularity as a stockholder might not waive.
It is further contended that the resolution of forfeiture was insufficient in not particularly specifying the stock of H. C. Cook as being forfeited. The stattute does not prescribe the form of the declaration of forfeiture, but only requires that a written notice be given before the forfeiture can become effective. The resolution was general in its terms, applying to all defaulted stock ; but the resolution together with the notice made it sufficiently definite to indicate to the stockholder what action would be taken if payment should not be made. It would have been more regular if the notice had been completed before the declaration of forfeiture was made. Notice of the forfeiture was conveyed to the stockholder, and no effort was made to protect or redeem the stock. This irregularity, like some of the others mentioned, does not invalidate the proceeding or make it more than voidable. It has been said :
‘ ‘ If the forfeiture is invalid in respect of something which the parties cannot waive and which cannot be cured by their acquiescence, he remains liable to the company’s creditors in the event of its insolvency. On the other hand, where there has been, a mere irregularity in making a bona fide forfeiture within the company’s powers, as by failing to give him the prescribed notice or to pass a formal resolution of forfeiture, but only an entry to that effect on the corporate books has been made by the secretary, yet, if both the company and the shareholder treat the forfeiture as valid, it will be held as such against the company’s creditors.” (2 Thomp. Oorp. §1792.)
Here the corporation was solvent; the trustees acted in good faith in the declaration of forfeiture; there was no lack of power to take the steps necessary to a forfeiture; those taken were in substantial compliance with the law; and both the company and the stockholder acquiesced in the proceeding. Where the statute prescribes the method of forfeiture, it must be pursued with some strictness, but in the absence of such provisions as to details it is onl}- required that the method adopted be reasonable and just, and there can be no complaint that those adopted in this case were unreasonable or unjust.
“It is a well-established rule, also, that a forfeiture of shares, where the forfeiture was irregular or defective in its form, is not void, but voidable ; and that, by subsequent knowledge and acquiescence, the share holder and the company are alike estopped to deny its validity.” (1 Cook, Corp. § 129. See, also, Raht v. S. Mining Co., 18 Utah, 290, 54 Pac. 889; Schwab v. Frisco Mng. Co., 21 id. 258, 60 Pac. 940; Woollston’s Case, 4 De Gex & Jones, 437; Railroad Co. v. Thrall, 35 Vt. 536.)
The proof with respect to notice is sufficient to uphold the finding of the court. The letter was dated at the home of the secretary, and was shown to be in his handwriting. It was found among the effects of the defendant with an endorsement thereon in his handwriting. It was sufficiently definite and certain to give him information as to the purpose and action of the corporation, and there can be no question of his • default in payments on the stock. Although there are some discrepancies in the. testimony of one of the officers of the company with respect to the assessments due from Cook, it is abundantly shown that only $1000 of his subscription had been paid, and that several assessments were made and entered on the books of the company, of which he had sufficient notice, that were ignored by him.
We find nothing substantial in any of the objections made to the rulings on evidence or other proceedings in the trial court, nor do we see any reason why the judgment should be disturbed. The irregularities and defects in the proceedings that occurred are only voidable and such as may be waived and cured by the action of the corporation and the stockholder. There was no collusion or bad faith in the transaction. ' The forfeiture was declared and stood unchallenged for more than six years prior to the •death of Cook. If the business of the corporation had been profitable and the stockholder, after a number of years, had undertaken to claim a share in the profits or assets of the company, kept going by the contributions of punctual stockholders, he would have been met by the rule that his acquiescence for a long period of time had waived defects in form and irregularities, and that the steps taken had completely severed his relations with the company as a stockholder. It is equally certain that when he lost his rights as a stockholder he could not thereafter be held liable as a stockholder for corporate debts. The judgment of the district court will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Greene, J. :
Annie Jaffi sued the Missouri Pacific Railway Company to recover damages which she claimed she had sustained by reason of the negligence of its agents, servants and employees in operating and running one of its trains backward on one of the populous streets in the city of Kansas City, Kan., without having a watchman or lookout upon the rear car and without blowing a whistle or sounding an alarm. She recovered judgment, and the railway company prosecutes error to this court.
Sufficient of the facts to an understanding of the questions which we are called upon to decide in this case are the following: On State Line street, in the city of Kansas City, Kan., the defendant company had one of its storage tracks. Annie Jaffi and her family occupied a house'very close to this track. On the day of the accident three box cars were standing coupled together on this track opposite, and within a few feet of, the door of plaintiff’s residence. These cars were not connected with, or a part of, any train. At a considerable distance south of where these cars were standing the employees of the company were making up a train or removing and replacing cars.
The testimony of Mrs. Jaffi, in substance, was that her boy five and one-half years old ran out of the house for the purpose of throwing water out of a cup. He crossed this track from the east to the west, north of the north car, and immediately turned and approached the track, putting his foot upon the west rail and within two or three feet of the north wheel of the north car and appeared to be throwing out the water. Mrs. Jaffi, who was inside the house standing by an open window, heard the rumbling of a train, looked out, and saw the child. She ran out and just before she got to him the train which had backed up to couple on to these cars struck them, moving them back two or three feet and upon the boy’s foot. The train then moved south. She seized the child under the arms and around the body but in some way the child’s foot or clothes became entangled in some portion of the rear part of the car, from which she was unable to disengage him. She held him in her arms while the train moved from 100 to 125 feet. An alarm was conveyed to the operators and the train stopped. When the train stopped the rebound occasioned by the slack of the train caused something to bump against Mrs. Jaffi, causing an internal rupture, rosultingin perma nent injury. It was for this injury she recovered in the court below.
Mrs. Hessie Ray, a witness for plaintiff, testified that she was walking down the track and saw the child standing on the track, toward the west rail, “fixing to throw out some water,” and about the time he threw the water out the train bumped back and caught him and dragged him ; that his mother ran out and caught him under his shoulders and held him up and commenced shouting. She also testified as follows :
“Q. How near to the car then when you first saw him ? A. Just like here was the boy and right there was the car (indicating).
“Q. Right close up? A. Yes, sir.
“Q,. And the car was standing still and then it bumped? A. Yes, sir.
“Q,. Was the car perfectly still when you first saw him? A. Yes, sir.
“Q. And was he right up close, almost touching the car? A. Yes, sir.
‘ ‘ Q,. And they jolted the car back a'little and caught him, and then started up again? A. Yes, sir.
“ Q. How far back did the car move when it struck him ? A. Not so powerful far.
“Q,. Just enough to catch him between the two wheels ? A. Yes, sir.
“Q,. That was about two or three feet ? A. Yes, sir.
“ Q. Then it started up ahead again ? A. Yes, sir.
“ Q. He was a little bit of a fellow wasn’t he ? A. Yes, sir.
“Q,. He could almost stand under the car? A. Yes, sir.
“Q,. You say he was so close to the car that he could touch the car ? A. He could almost touch it. He was not jammed right up to the car.
“Q,. Well, my question is, he was i’ight close up to it, so that, when it did bump it two or three feet, it moved it far enough to get him between the. wheels of that car? A. Yes, sir.”
There was a switchman on the east side of the south end of these cars to couple them on to the train when it moved back, but there was no watchman on the top. The engine backing up was not moving to exceed two or three miles an hour.
The negligence complained of was the omission of the defendant company to sound an alarm or to have a guard on the rear of said cars to warn persons off the track. Unquestionably it would be negligence for a railroad company to back one of its trains onto a street-crossing, or upon a street partially or wholly occupied by its tracks, in a populous part of a city, without having a guard on the rear car to warn persons likely to enter upon the track. However, before a recovery could be had, it must appear that but for such negligence the injury would not have been sustained. The child whom the mother was trying to rescue,* when she received the injuries for the recovery of which this action was brought, was five and one-half years old, and according to the testimony of Mrs. Ray, the only witness (except the mother) who saw the child immediately preceding and at the time the car struck him, he was a little bit of a fellow and could almost stand under the car ; that before the car moved he was standing so close to the rear end of the car that he could almost touch it. It appears from the testimony of Mrs. Ray and Mrs. Jaffi that the car did not move backward to exceed three feet before it struck the child. The child was either under the side of the car with his foot on the rail, as testified by Mrs. Jaffi, or between the rails and so close to the end of the car that he could almost touch it, as testified by Mrs. Ray. It is not made to appear that a guard stationed upon the rear car, and in the exercise of ordinary care, would or could have seen a child as small as this one at either of the places where plaintiff’s witnesses claim he was standing when the car backed upon him.
In A. T. & S. F. Rld. Co. v. Morgan, 31 Kan. 77, 1 Pac. 298, this court said :
“The omission to sound the whistle of an engine in accordance with the provisions of § 60, page 226, Comp. Laws of 1879, is negligence. . . . Although this is so, a railroad company is not liable for damages unless the injury complained of is attributable to or caused by such omission.”
This statement appears to have been based upon the language of the statute, but it is no less true without the statute.
To the same effect is the case of A. T. & S. F. Rld. Co. v. Walz, 40 Kan. 433, 19 Pac. 787, where it was said :
“The failure to give the signal (at a public crossing) will not create a liability against the company unless the injury was the result of such failure.”
The principle announced in Railway Co. v. Young, 57 Kan. 168, 171, 45 Pac. 580, is peculiarly applicable here. A child of tender years was playing upon the track of the company. It backed one of its trains upon, and killed him, and the negligence complained of was in not having a watchman or guard on the rear car to warn persons of the approaching train. It was said:
“The main claim is that no employee was upoh the rear end of the train to prevent injury to children who might be near to or upon the track. Upon this question there is a dispute in the evidence, but, assuming that the company failed in this respect, it does not appear that such precautions would have averted the injury. He may have been playing under the car out of the view of the lookout, or he may have run in front of the end qar just as it was moved and when it would have been impossible, by the greatest diligence, to have stopped the train before he was struck. If a brakeman had been upon the train to guard against such injuries, who can say that the peril of the child would have been discovered in time to have prevented the injury ? It is not enough that, the company may have failed to take necessary precautions in moving the train, but before there can be a recovery it must show that the boy was hurt in consequence of such failure.”
For the reasons assigned, the judgment of the court is reversed and the cause remanded for retrial.
All the Justices concurring. | [
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The opinion of the court was delivered by
Mason, J. :
A. T. Eakin sued the Citizens’ State Bank of Ness City on its promise, by a telegram dated September 21, 1901, to pay a check on it for $130, given him by Howder & Hall on June 3, 1901. The district court sustained a demurrer to the petition, ontthe ground that under the provisions of section 548 of the General Statutes of 1901 such an action would not lie except in favor of one who received the check for a valuable consideration on the faith of the acceptance. This section and the one preceding it, to which it makes reference,- read as follows :
‘ ‘ § 547. No person within this state shall be charged as an acceptor of a bill of exchange unless his acceptance shall be in writing, signed by himself or his lawful agent.
“§548. If such acceptance be written on paper other than the bill, it shall not bind the acceptor, except in favor of a person to whom such acceptance shall have been shown, and who, in faith thereof, shall have received the bill for a valuable consideration.”
' It was not claimed in the petition that the plaintiff received the check on the faith of the acceptance. In fact, it was distinctly alleged that he received it before the acceptance was made. Therefore the statute quoted applies, and is fatal to plaintiff's action, if a bank check is to be deemed a bill within the meaning of the statute. n
Plaintiff in error cites many authorities to the effect that a bank check is not a bill of exchange'. There are certainly differences to be noted between a bank check and an ordinary bill of exchange. It is not important to inquire whether these differences are such as, for general purposes, to require classifying the former as a separate kind of instrument from the latter, rather than as a special form of it. We are here concerned only with the question whether the term “bill of exchange,” as used in this statute, is intended to include a bank check. A legislative interpretation of long standing argues for an affirmative answer. The sections quoted were parts of chapter 20 of the Statutes of 1859.. Section 4 of that act originally read: “That all bonds, notes or bills of exchange, made negotiable by this act, shall be entitled to three days of grace in the time of payment.” This section in the General Statutes of 1868, chapter 14, section 4, shows an amendment by the addition of the words “except bank checks” after the words “bills of exchange,” and this amendment has remained to the present time. This clearly shows that at the time of the amendment the legislature gave the statute the meaning contended for by defendant in error.
The precise question was decided in Risley v. Phenix Bank of City of New York, 83 N. Y. 318, 324, 38 Am. Rep. 421, although the language involved was that of section 547 above quoted, instead of section 548. In the opinion it was said: “The check was a bill of exchange, within th§ statute that no person shall be charged as an acceptor of a bill of exchange, unless- his acceptance shall be in writing." This decision has almost controlling force, since the Kansas statute seems to have been borrowed from New York, through Missouri, and while this decision was rendered in 1881 it was based upon earlier decisions that a check is a bill of exchange (not referring to this statute, however), rendered before the adoption of the statute by Missouri. We follow this authority, and hold that a bank check is a bill of exchange within the meaning of the statute cited.
The judgment of the district court is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Cunningham, J.:
Several grounds of error are alleged. We shall discuss but two. After having testified to the progress of the disease, so far as he had observed it, the following questions were asked of Doctor Dawson:
“I will ask you, doctor, if you had seen Mrs. Morris at the time that her disease became acute, if, in your opinion, you could have cured her and prevented the operation that afterward took place?”
“Doctor, if you had been there to see this patient in time, that is, in the early inception of peritonitis, when it commenced, and could have or would have prevented these different stages which she went through with, state whether that, in your opinion, would have worked a cure in her case. Would that have saved this operation, in your opinion?”
These questions were objected to specifically because they called for the expression of an opinion by an expert without basing such questions upon a hypothetical statement of facts. The question asked was the one the jury was called upon to determine, and was only permissible because asked of an expert ;< but it is well established that in the putting of such questions the jury must be fairly informed what the facts are upon which the question is based and from which the conclusion is drawn. It is not proper to permit the witness to array in his mind facts, and then declare from such array his conclusions therefrom, because he may introduce into this list some things which are not facts — some things which would not be competent to be considered in arriving at his conclusion. The opposite party is entitled to know the things considered by the expert witness in arriving at such conclusion, in order that such party may introduce experts who will occupy the same standpoint and deduce their conclusions from the same facts as did the former .expert. Now, in this case Mrs. Morris’s acute condition had been in progress for more than twenty-four hours prior to the arrival of Doctor Dawson. Concerning this condition he had no knowledge whatever, except as he was told by others. As to what facts he considered in arriving at his opinion as an expert, whether' those within his own knowledge or those of which he had been informed, whether either, neither, or both, the jury were not informed, nor the opposing party advised. Plow could the jury know what weight to give to his conclusion, or the opposing party adequately meet it ? It is true that where an expert witness has made it manifest that he is acquainted with all of the facts upon which an expert opinion is to be based, and such facts are fully disclosed, easily understandable, and undisputed, they may be made a basis for a question calling for the expression of an expert opinion, without again arraying them in the form of a hypothetical question. This would be so because such facts could be easily grasped by the jury, and availed of by the other party in presenting a hypothetical question to another witness. The general rule was announced in Erastus Tefft v. Hardin H. Wilcox, 6 Kan. 46:
“An expert cannot give his opinion on the case under trial when the facts are controverted; but counsel must put to him a hypothetical case, and ask his opinion upon such case.”
It was held in Burns, Executor, v. Barenfield et al., 84 Ind. 43, 48:
“It is the clear right and duty of the jury to judge of the truth of the facts upon which the opinion of the expert is based. If his opinion is based upon what he may suppose he knows about the case, upon facts, it may be, altogether irrelevant' and unknown to the jury, it would be impossible- for them to pass upon the truth of the facts upon which the opinion may be based, or to apply the opinion of the expert to the facts. Neither court nor jury -can know the facts upon which the opinion rests. It is obvious that, where the expert delivers his opinion from what he supposes he knows about the case, he must assume and exercise both the functions of the court and the jury- — -he determines that what he knows is both relevant and true. The relevancy of the facts mhst be determined by the court, their truth by the jury. The witness cannot pass upon such questions.”
In Rogers on Expert Testimony, at page 37, it is said:
“As expressed in one of the opinions, ‘a question should not. be so framed as to permit the witness to roam through the evidence for himself, and gather the facts as he may consider them to be proved, and then state his conclusions concerning them.’ And the language in another case is as follows: ‘The-questions to him must be so shaped as to give him no occasion to mentally draw his own conclusions from the whole evidence, or a part thereof, and, from the conclusions so drawn, express his opinion, or to decide as to the weight of evidence or the credibility of witnesses; and his answers must be such as not to involve any such conclusions so drawn, or any opinion of the expert, as to the weight of the evidence, or the credibility of the witnesses.’ ”
Doctor Dawson would not be permitted to give an expert opinion on facts of the case detailed to him by the patient herself, nor could he combine such statements with his own knowledge in part of the facts as a basis for an expert opinion. (A. T. & S. F. Rld. Co. v. Frazier, 27 Kan. 463.) He must have done so in this case, or else his expert opinion was based upon but part of the facts. 'In either case, all parties were •entitled to know the character of the data from which he drew his conclusion. We are persuaded that these questions in the form in which they were put violate the rule with reference to the admission of expert evidence, and that it was error to permit them thus to be propounded.
Several special questions were submitted to the jury- by the company. Some of them, with their answers, are as follows:
“1. Did plaintiff’s wife in 1892 have an attack of general peritonitis? A. Yes.”
“3. If you answer question No. 1 in the affirmative, then was she, in consequence thereof, more subject to recurring attacks of peritonitis? A. We .think not.
“4. At the time when Doctor McClintock performed the surgical operation upon Mrs.. Morris, was-it apparent from the condition in which he found her ovaries and Fallopian tubes that their diseased condition had existed for more than thirty days? A. We' think not.
“5. Had the diseased condition in which Doctor McClintock found Mrs. Morris’s Fallopian tubes and ovaries, at the time of operating upon her, existed more than thirty days ? A. The evidence has not made it clear to our minds that there was any disease in the Fallopian tubes and ovaries prior to December 5, 1895.”
These answers were objected to by the defendant as being evasive, not responsive to- the questions, and against the evidence, and the court was requested to-require the jury to make more definite and specific answers thereto in accordance with the evidence. This was refused and the refusal is alleged as error.
There was no contradiction in the evidence upon the two questions propounded in interrogatories 3 and 4, and interrogatory 5 was but putting No. 4 in another form. While there was no evidence in terms authorizing any other answer to be made to No. 3 except in the affirmative, possibly a negative answer might have been pardoned by allowing the jury to draw from their own experience, and remembering that somewhat of speculation entered into its solution. But it called for either an affirmative or negative answer, and not the evasive one given, When we come to consider Nos. 4 and 5, however, this evasiveness was more pronounced, and the disregard of the evidence inexcusable. If there was enough evidence upon which to find a general verdict in favor of the plaintiff, then these two questions should have been answered in the negative. If under the evidence they should have been answered in the affirmative then the general verdict should have been for the defend-, ant. A jury ought not to be permitted to juggle with the court and parties’ rights in this way. Taking all of these answers together, the object of this evasion seems clear. The undisputed evidence was that the condition in which the organs of Mrs. Morris’s body were found could not possibly have arisen in thirty days. That one of her ovaries was completely destroyed, the other nearly so, that the diseased organs had been surrounded by an organized living tissue by nature in her effort to protect other parts from infection, was testimony more strong to the same point than even that of the witnesses. These findings were material, and the evidence relative thereto undisputed. It seems to us that the rule announced in Railway Co. v. Davis, 64 Kan. 127, 67 Pac. 441, compels a setting aside of the verdict herein.
It is strongly urged that under all the evidence no more than merely nominal damages should have been allowed. While we do not so announce, yet this view impresses us so strongly that we are the more ready to conclude that the court should have required the jury at least to return unequivocal answers to these questions, and not permitted them to evade, for the purpose of sustaining a general verdict, where the evidence left no room for evasion.
The judgment of the court below will be reversed and the cause remanded for further proceedings.
All the Justices concurring. | [
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The opinion of the court was delivered by
Greene, J.:
This action was commenced by the plaintiffs in error as owners and grantors to set aside an oil, gas and mineral lease of certain lands in Allen county, Kansas, executed by them to Geo. A. Bowlus & Co., and by the latter assigned to the defendants. Judgment was rendered against plaintiffs, to reverse which they prosecute this proceeding. The lease reads :
“This lease, made between J. A. Monfort and M. M. Monfort, his wife, party of the first part, and Geo. A. Bowlus & Co., parties of the second part: <
“ Witnesseth-, that in consideration of one dollar, the receipt of which is hereby acknowledged, and the further consideration of drilling test wells in Allen county, Kansas, for oil, gas, and minerals, the party of the first part hereby agrees with the parties of the second part: That they shall have the exclusive right for ten years from this date to enter upon and operate for oil, gas. and minerals all that certain tract of land in Elm township,.Allen county, Kansas, described as follows, to wit: ' S. W. i section 6, township 25, range 19, acres 160, containing 160 acres more or less, - upon the following terms and conditions : Second party shall deliver in tanks at the wells to the first party, without cost, one-tenth of all oil and minerals produced on these premises, and pay the market price in cash for the same if the first party should so desire, and fifty dollars per year for each gas-well of sufficient capacity to utilize when used off the premises. Said second parties are to pay all damages of any kind that may arise by reason of their operations thereon. If oil or gas is found in paying quantities in any well drilled, the privilege of operating shall continue as long 'as oil and gas. shall be produced in paying, quantities, and when abandoned for such purposes this grant shall cease and no longer be binding on either party. No wells to be located on cultivated.land without the consent of the party of the first part. If gas is found on the above-described land, party of the first part is to have the use of same for domestic purposes free. The second party reserves the right to remove all machinery and fixtures placed thereon b.y them. In case no oil- or gas-well is sunk on these premises within five years from this date this lease shall become absolutely null and void, unless the second parties shall elect from year to year to continue this lease by paying or depositing to the credit of the first party each year in advance forty dollars at Bank of Allen county, Kansas, until a well is completed on these premises. It is understood by and between the first and second parties of this agreement that all conditions between the parties.hereto shall extend to their heirs, executors, and assigns. We do hereby acknowledge that we did sign the foregoing instrument and thatqt is our free act and deed for the uses and purposes herein named.
More than five years after the execution of the lease this action was brought, and neither the lessees nor their assigns had sunk, or undertaken to sink, a well on the leased premises. It is contended by plaintiffs in error that by the conditions of the lease it was the clear intention of the parties that wells were to be immediately drilled upon the leased premises, and in case no such wells should be sunk within five years from' the execution of the lease that the lease should be ■come terminated. The lease expressly granted to the lessees or their assigns the exclusive right for ten years from its date to enter upon the leased premises and prospect for oil, gas, and minerals, upon the performance by them of the following conditions : The payment of one dollar to the lessors, the drilling of test wells in Allen county, and either the sinking of a well or wells on said premises within five years, or ■each year in advance, after the expiration of five.’ years, paying or depositing forty dollars in the Bank •of Allen County, Kansas, to the credit of the first parties, until a well should be completed upon the premises. It \s not seriously denied that the one dollar was paid, wells sunk and operated in Allen county, or that after the expiration of five years the lessees, each year in advance, deposited forty dollars in the Bank of Allen County, Kansas, to the credit of the lessors. We are of the opinion that the performance of these conditions had the effect to continue the lease in force for the period of ten years from the date of its execution, or so long as the lessees or their assigns continued to make this annual deposit. The language used in setting forth the conditions to be performed by the lessees in order to preserve this right is so plain that nothing is left for inference or ■speculation.
It is argued that it was the intention of the parties to commence operation upon the leased premises immediately, or at least within five years, and this, it is ■said, is plainly inferable from the following language in the lease :
“ Second party shall deliver in tanks at the wells to the first party, without cost, one-tenth of all oil and minerals produced on these premises. . . . If oil or gas is found in paying quantities in any well drilled, the privilege of operating shall continue as long as oil and gas shall be produced,in paying quantities. .- . In case no oil- or gas-well is sunk on these premises within five years from this date this lease shall become absolute!}7 null and void, unless the second parties shall elect from year to year to continue this lease by paying or depositing to the credit of the first party each year in advance forty dollars at Bank of Allen County, Kansas, until a well is completed on these premises.”
There is none of these*conditions that would be less operative or effective, or less beneficial to the grantors, after the expiration of five years than before. To give this language the interpretation contended for by plaintiff in error would be* to do violence to the express terms of the lease, which declares that it shall not become null and void at the expiration of five years if “the second party shall elect from year to year to continue the lease by paying or depositing to the credit of the first party each year in advance forty dollars at Bank of Allen county, Kansas.”
Counsel for plaintiffs in error call our attention to the case of Huggins v. Daley, 99 Fed. 606, 614, 40 C. C. A. 12, 48 L. R. A. 320, in support of their contention. An examination of that case will show that the conditions of thp lease under consideration in that case differ materially from the present one. That lease contained the following condition:
“Provided, however, that a well shall be commenced upon the above-described premises within 30 and completed within 90 days from the date hereof; and, in case of failure to commence and complete said well as aforesaid, the lessee shall pay to the lessor a forfeiture of $50.”
The court said:
“We are of opinion, upon the whole case, that the exploration for and development of oil and. gas was the sole consideration for this lease ; that the proviso requiring the boring of a well within 90 days was a condition precedent to the vesting of any interest in the lessee, and that the forfeiture of $50 was intended merely as'a penalty to secure the drilling of the welí, and, if paid, would have been merely compensation to the landowner for the right of the lessee to possession during the 90 days, and such payment would not be so far a compliance with the conditions of the lease as to vest in the lessee a title in the leased premises for the period of five years; that after the expiration of 90 days from the date of the lease, there being no provision therein for any work to be done by the lessee in the development of the property, which was the sole consideration therefor, the lessor had the option to avoid it. .
The conditions of the present lease guarantee to the lessees the exclusive right for ten years to enter the premises and operate for oil, gas, and minerals; if they elect, after the expiration of five years, to continue the lease from year to year, they may do so by depositing forty dollars each year in advance to the credit of the lessors in the Bank of Allen county, Kansas. The defendants having complied with all conditions of the lease, it continues in force.
The judgment of the court below is affirmed.
All the Justices concurring. | [
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Tim opinion of the court wa& delivered by
Mason, J.:
B. C. Singleton was prosecuted on a , charge of murder and convicted of manslaughter in the first degree, from which conviction he appeals. The evidence of the state shows that Singleton and one Art. Rickard met in the street. Rickard accused Singleton of having once come out to his father’s place to kill him, and at the same time struck him with his fist. Singleton denied the accusation and of fered to explain. Rickard said that he did not want him to explain, called him a vile name, with accompanying profanity, and struck him again. Two bystanders then interfered, one seeking to restrain Rickard, the other Singleton. Singleton stepped back some fifteen feet, Rickard following, pulling the bystander along with him. Singleton then drew a revolver and shot Rickard, death resulting almost immediately. At the trial Singleton relied for aquittal on a claim that the killing was done in self-defense. He testified that when he fired he apprehended a design on the part of Rickard to do him great bodily harm ; that he believed himself to be in great danger from him ; that he did not know whether or not Rickard had anything on his fist when he struck him ; that he was afraid of one of the bystanders, because appearances indicated that he was holding him for Rickard to do him some great bodily harm ; that he was afraid his life was in danger; that he shot at Rickard to keep him off from him — keep him from doing him bodily harm — hurting him.
Objection is taken to the sufficiency of the information, but the criticisms made are not well founded. As was said of a less formal pleading in The State v. McGaffin, 36 Kan. 315, 319, 13 Pac. 560, “the charge which it contains is brief, but we think it states in plain and conciselanguage every element of the crime.” An instruction was asked and refused stating that no conviction could be had if any juror, after full consideration of the law and evidence, entertained a doubt of the defendant’s guilt. The instruction in the form asked was defective in making no reference to consultation with fellow jurors. Afterward the instruction was submitted by the defendant in correct form, but as this was after the opening argument to the jury the request came too late to make its refusal error. Other instructions asked were either properly refused or covered by instructions that were given.
It is further objected that the evidence did not warrant a conviction of manslaughter in the first degree, because there was nothing from which the jury could find that the defendant was engaged in the perpetration of, or attempt to perpetrate, any crime less than a felony, this being an essential element of that offense. The same contention was made in The State v. Spendlove, 47 Kan. 160, 28 Pac. 994, but it was there decided that assault and battery is one of the misdemeanors covered by the statute defining manslaughter in the first degree. The instructions, however, in addition to defining assault and battery, should have informed the jury that it is an offense less than a felony.
The most serious objection urged, however, is to the giving of instruction No. 33, which reads as follows :
‘ ‘ Concerning this question, you are instructed that positive danger is not necessary or indispensable to justify self-defense. If one is pursued or assaulted in such a way as to induce in him a reasonable and well-founded belief that he is in actual danger of losing his life, or receiving great bodily harm, under the influence of such apprehension he will be justified in defending himself, whether the danger be real or only apparent. Men, when threatened with danger, must determine from the appearances, and the actual state of things surrounding them, as to the necessity of resorting to self-defense, and if they act from reasonable and. honest convictions they will not be held responsable criminally for their mistakes in the exact extent of the actual danger, where other judicious men would be alike mistaken.
“ So, in such cases as this, where the defendant relies upon the supposed necessity of killing as a justification or excuse, the rule to be applied is that the accused must have believed that he was in immediate and actual danger of his life from the deceased, and his belief must rest upon reasonable grounds, and the party from whom the danger is apprehended must be making some attempt to execute his design, or, at least, be in an apparent situation to do so, and thereby induce a reasonable belief that he intended to do so immediately.”
Under the circumstances stated, it was not necessary to a complete defense that the defendant should have believed his life to be in danger; he is equally protected if he acted upon a reasonable belief that he was in danger of receiving great bodily harm. (The State v. Petteys, 65 Kan. 625, 70 Pac. 588.) It is therefore obvious that the second paragraph of the instruction quoted does not contain a complete and sufficient statement of the law, and if considered alone would necessarily be held erroneous. In other instructions language was used classing the fear of receiving great bodily harm with the fear of loss of life as a ground of self-defense. But it is well settled that in a criminal case an erroneous instruction upon a material matter cannot be rendered harmless by a correct statement of the law in another part of the charge. (Carl Horne v. The State of Kansas, 1 Kan. 42, 81 Am. Dec. 409).
But it is contended that the defective language quoted is aided by the first paragraph of the same in struction, where express mention is made of the right of self-defense based upon the fear of receiving great bodily harm. The instruction is, of course, to be read and considered as a whole, but we cannot conclude that the defect of the second paragraph is cured by anything contained in the first. The first paragraph merely professes to give a general statement of the law, introductory to its application to'the facts of the case as given in the second paragraph. The second paragraph purports to state the complete rule so far as it relates to the case under consideration, and therefore the omission of this important element cannot be cured by anything found elsewhere in the instructions.' The case is as completely within the rule stated as though the two paragraphs had been numbered as separate instructions. Moreover, even the general statement of the first paragraph is only to the effect that fear of great bodily harm justifies one in defending himself, without indicating the extent to which such defense may be carried. Defendant testified that he acted in fear of great bodily harm. The defect in the instruction quoted was therefore manifestly prejudicial and requires a reversal.
The judgment is reversed, and the cause remanded with directions to grant a new trial.
All the Justices concurring. | [
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The opinion of the court was delivered by
Wedell, J.:
This was an action to recover damages for slander.
The plaintiff appeals from an order sustaining defendant’s demurrer to his evidence.
The parties were farmers in Sedgwick county. The petition contained two causes of action. The first was based on the following communication:
“That on or about the 15th day of July, 1949, the defendant at Wichita, Kansas, spoke the following slanderous, false and defamatory matter of and concerning this plaintiff to Glenn Davis, an official investigator in the office of the Sheriff of Sedgwick County, Kansas, to-wit: ‘That Mathias Faber (this plaintiff) steals gasoline; that he (Eddie Byrle) had recently at his (Eddie Byrle’s) home near Maize caught him (Mathias Faber) and his hired man loading on his (Mathias Farber’s) truck 3 fifty-five gallon containers of gasoline then being taken from his (Eddie Byrle’s) gasoline supply tanks; and that he (Eddie Byrle) was then by (Mathias Faber) forced to go into his (Eddie Byrle’s) house by said Mathias Faber with a gun in his (Eddie Byrle’s) back and there he (Eddie Byrle) was tied in a chair by said (Mathias Faber) and then told by said Mathias Faber that if he (Eddie Byrle) ever told anybody about him (Mathias Faber) trying to steal gasoline from him (Eddie Byrle) that he (Mathias Faber) would kill him (Mathias Faber) [Eddie Byrle].”’
In the first cause of action it was further alleged the communication was false and was made maliciously with the intent to injure plaintiff’s name, fame and credit, to bring him into public scandal and disgrace and the plaintiff was damaged thereby.
The second cause of action was based on the following communication:
“That on or about the 4th day of September, 1949, the defendant at or near St. Mary’s Cathedral, Wichita, Kansas, spoke the following slanderous, false and defamatory matter of and concerning this plaintiff, to Ralph Faber, to-wit: ‘It is kinda bad about Matt (meaning Mathias Faber) stealing gasoline; that he (Eddie Byrle) hated it because he knew Matt (Mathias Faber) so well and didn’t think he (Mathias Faber) would do anything like that; that if Matt (meaning Mathias Faber) wanted gasoline he (Eddie Byrle) would give it to him (Mathias Faber) rather than have him (Mathias Faber) come up behind him (Eddie Byrle) and force him (Eddie Byrle) with a gun; that he (Eddie Byrle) caught Mathias Faber’s hired man loading his (Eddie Byrle’s) gasoline into his (Mathias Faber’s) pickup truck and that he (Mathias Faber) came up behind him (Eddie Byrle) with a gun in (Eddie Byrle’s) back and told his (Mathias Faber’s) hired man to put the gasoline on the truck; that he (Mathias Faber) forced him (Eddie Byrle) to go into his (Eddie Bryle’s) house and he (Mathias Faber) there tied him (Eddie Bryle) in a chair and told him (Eddie Byrle) that if he (Eddie Byrle) ever said anything about him (Mathias Faber) stealing gasoline that he (Mathias Faber) would kill him (Eddie Byrle); that he (Eddie Byrle) did not dare to go over to Matt’s (Mathias Faber’s) place as there would be a murder. ’”
The second cause of action further contained a statement similar to that previously stated following the alleged defamatory matter contained in the first cause of action.
Defendant’s answer and an amendment thereto contained a general denial and, in substance, further alleged:
Ralph Faber was plaintiff’s brother; the statements if made to him were made at his instance and request and were spoken in confidence; the statements made to plaintiff’s brother and to the officer were privileged communications and were true; they were not made maliciously or with the purpose of damaging the plaintiff and he was not damaged thereby.
The record discloses no reply.
Without detailing plaintiff’s evidence it may be stated his evidence corresponded substantially with the statements the petition alleged defendant had made to Glen Davis, the officer, and to Ralph Faber, who the evidence disclosed was plaintiff’s half brother. There was no competent evidence plaintiff’s half brother or the officer repeated the communications to any other person. The officer stated he had not communicated the statements to anyone except to the plaintiff. There was no separate or express evidence which tended to indicate defendant made the statements to those two persons, or to either of them, with malice towards the plaintiff.
Plaintiff sought to introduce evidence of other witnesses to the effect that various people in the vicinity had discussed the substance of these communications. None of these discussions was in the presence of the defendant. The petition did not allege the defendant, plaintiff’s half brother or the officer communicated the statements to any other person and, as previously stated, there was no evidence they, or any of them, had done so. The action was based solely on the ground the defendant had made the statements to the officer and plaintiff’s half brother and not that defendant, plaintiff’s half brother, the officer, or any of them, had made the statements to any other person. Under these circumstances it would appear the statements by such other persons, if made, were not within the issues joined by the pleadings. (Jones v. Gill, 145 Kan. 482, 485, 66 P. 2d 1033.)
Furthermore, the question of the competency of the testimony of such other witnesses is not properly before us for review. That subject, however, will be considered under the treatment of the motion for new trial.
The demurrer was lodged on the grounds the facts were insufficient to constitute a cause of action and that the action was barred by the one year statute of limitations, G. S. 1949, 60-306, Fourth.
Was the action barred? It was filed within less than a year after the alleged communications. It does not appear the court sustained the demurrer to either cause of action on the ground the action was filed too late. If the court did not sustain defendant’s demurrer to either cause of action on that ground the defendant nevertheless has not cross-appealed on that point. Irrespective, however, of the lack of a cross-appeal we think the demurrer was not good on the ground the action was filed too late. Defendant’s contention is that although the action was filed in time the evidence does not clearly disclose the defamatory statements were made within one year prior to the filing of the action. We think a reasonable interpretation of the entire record renders the contention untenable.
Was the demurrer to plaintiff’s evidence properly sustained on the ground it was otherwise insufficient to establish a cause of action? In view of what has been said herein previously it is clear the only evidence to be considered is defendant’s statements to the officer and to plaintiff’s half brother.
A statement of a few general principles relating to defamatory statements may be helpful before proceeding with a consideration of the respective counts. Privileged communications are divided into two classes, namely, those which are absolutely privileged and those which are qualifiedly or conditionally privileged. Where absolute privilege obtains, which is in a limited class of cases, there is no liability. With respect to qualifiedly or conditionally privileged communications there may or may not be liability depending upon the circumstances of the case.
Qualifiedly or conditionally privileged communications have been variously defined. We think the statement from S3 Am. Jur., Libel and Slander, § 126, is adequate. It reads:
“A publication is conditionally or qualifiedly privileged where circumstances exist, or are reasonably believed by the defendant to exist, which cast on him the duty of making a communication to a certain other person to whom he makes such communication in the performance of such duty, or where the person is so situated that it becomes right in the interests of society that he should tell third persons certain facts, which he in good faith proceeds to do. This general idea has been otherwise expressed as follows: A communication made in good faith on any subject matter in which the person communicating has an interest, or in reference to which he has a duty, is privileged if made to a perspn having a corresponding interest or duty, even though it contains matter which, without this privilege, would be actionable, and although the duty is not a legal one, but only a moral or social duty of imperfect obligation. The essential elements of a conditionally privileged communication may accordingly be enumerated as good faith, an interest to be upheld, a statement limited in its scope to this purpose, a proper occasion, and publication in a proper manner and to proper parties only. The privilege arises from the necessity of full and unrestricted communication concerning a matter in which the parties have an interest or duty, and is not restricted within any narrow limits.”
See, also, annotation 140 A. L. R. 1467.
In harmony with the foregoing statement this court early held a publication is conditionally privileged if made under circumstances and in a manner which repel, preclude or rebut the inference of malice arising prima facie from a statement prejudicial to the character of the plaintiff. (Kirkpatrick v. Eagle Lodge, 26 Kan. 384, 392; Richardson v. Gunby, 88 Kan. 47, 50, 127 Pac. 533.)
In this jurisdiction it has been held there is no liability on a conditionally privileged communication absent the existence of malice and that in such cases the burden of proof is on the plaintiff to establish malice. (Kirkpatrick v. Eagle Lodge, supra; Richardson v. Gunby, supra; Stone v. Hutchinson Daily News, 125 Kan. 715, 266 Pac. 78, 58 A. L. R. 718; Sowers v. Wells, 154 Kan. 134, 137, 114 P. 2d 828, and cases therein cited.)
Although there are rulings to the contrary most authorities hold that the question whether the publication complained of was privi leged, either absolutely or conditionally, by reason of its character or the occasion upon which it was made, is a question of law to be decided by the court whenever the evidence, as here, is undisputed. (Richardson v. Gunby, supra, p. 51; Stone v. Hutchinson Daily News, supra; 33 Am. Jur., Libel and Slander, § 296.)
Touching the question involved in the first cause of action, namely, defendant’s statement to an officer, we have held a communication to an officer of the law charging a person with a crime, made in an honest effort to recover stolen property and for the purpose of detecting and punishing .the criminal, is privileged and that where in such an action there is no proof of malice, a demurrer to the evidence is rightly sustained. (Mueller v. Radebaugh, 79 Kan. 306, 99 Pac. 612.) In a later similar slander case, Gregory v. Nelson, 103 Kan. 192, 173 Pac. 414, we said:
“It is true, as defendant contends, that it is the duty of every one to assist in the detection of crime, and to that end he should communicate to the proper officer what he knows regarding the commission of a crime. (Mueller v. Radebaugh, 79 Kan. 306, 99 Pac. 612.) Statements in themselves slanderous are protected as privileged if made in good faith in prosecuting an inquiry into a suspected crime.” (p. 195, 196.)
For a discussion of subject and collection of pertinent cases, see annotation 140 A. L. R. 1466.
In the instant case the evidence adduced by plaintiff disclosed the communication to the officer, even if it were to be regarded as only conditionally privileged, was not abused. The officer, plaintiff’s witness, testified he did not repeat the communication to anyone other than to the plaintiff himself. Plaintiff’s evidence disclosed no malice. The district court did not err in sustaining the demurrer to the first cause of action.
Was defendant’s communication to plaintiff’s brother made under, circumstances and in such manner as to properly classify it a conditionally privileged communication? Defendant’s answer alleged the statement was made at the instance and request of plaintiff’s brother and in confidence. The record presented here contains no reply to the answer. We, of course, are concerned presently only with evidence adduced on behalf of the plaintiff. This evidence was that defendant approached Ralph Faber and made the statement to him. Faber did not deny defendant made the statement to him in confidence and plaintiff’s evidence shows nothing to indicate, or tend to indicate, it was not made in confidence. In view of the ordinary relationship existing between brothers we shall not assume the defendant believed plaintiff’s brother would circulate a derogatory statement about him. Furthermore there is no evidence the brother did repeat the statement to any other person. There is nothing in the record to indicate the relationship between the plaintiff and his half brother was not a normal brotherly relationship. Faber referred to himself as plaintiff’s brother but said, “Well, to be exact, a half-brother.” Faber testified he had never heard anything against his brother and that he did not “know anything bad about him at all.”
The introductory part of Faber’s testimony was:
“He [Byrle] approached me and said, ‘Isn’t it too bad the way Mat has been stealing gas from him and the vicinity around there’, and Eddie Byrle said, ‘it sure looks bad for himself and family, his brother and sisters, that he had to steal gas from somebody and run the whole family and relations down.
On its face this statement does not indicate malice but rather discloses an interest in the welfare of plaintiff’s family including his brother to whom defendant made the statement. The remainder of the brother’s testimony, previously set forth herein, is also reasonably susceptible of the belief defendant was concerned about his own physical safety and probably believed plaintiff’s brother could help avert that danger. From the entire statement it is entirely reasonable to assume defendant made the statement in a spirit and with the hope of correcting a situation which affected both him, the brother, plaintiff’s entire immediate family and relatives. The communication was made at a church gathering which it appears both men attended. It seems to us that in view of the person to whom defendant made the statement, the interest the defendant and plaintiff’s brother both had in the matter, the circumstances and the manner in which the statement was made, when considered together, repel or rebut the inference of malice which ordinarily would arise prima facie' from such a statement if it were made to another under different circumstances. Under all the circumstances we think it is realistic and legally sound to conclude the statement to the brother was a conditionally privileged communication.
In 53 C. J. S., Libel and Slander, § 120, the rule is stated thus:
“A communication to the relatives of a party defamed, when made on request or in the discharge of a duty, social, moral, or legal, is qualifiedly privileged.”
In 33 Am. Jur., Libel and Slander, § 130, it is said:
“According to the weight of authority, a qualified privilege attaches to communications relative to family matters, made in good faith to the proper parties by members, intimate friends, and third persons under a duty to speak.”
See cases cited under each of the foregoing statements.
In Restatement, Torts, § 597, is contained the following:
“(2) An occasion is conditionally privileged when the circumstances induce a correct or reasonable belief that
“(a) facts exist which affect the well-being of a member of the immediate family of the recipient or of a third person, and
“(b) the recipient’s knowledge of the defamatory matter will be of service in the lawful protection of such person’s well-being and
“(c) the recipient has requested the publication of the defamatory matter or is a person to whom its publication is otherwise within generally accepted standards of decent conduct.”
Plaintiff having failed to establish malice the demurrer to the second cause of action was properly sustained.
Plaintiff argues the court improperly overruled his motion for a new trial by reason of having erroneously excluded testimony during the trial of other witnesses by whom it appears plaintiff hoped to show they had. heard statements concerning his alleged theft of gasoline from the defendant and that he was damaged by such rumors. This complaint was previously answered. Actually, however, the ruling is not reviewable. We have examined the record on the motion for new trial and find no affidavit, deposition or oral testimony was offered on the motion for a new trial to indicate what the excluded testimony would have been if admitted. All that was brought into the record during the trial was counsel’s statement or proffer of what he said the witnesses would testify to if permitted to do so. The journal entry discloses only that counsel’s proffers during the trial were again offered on the hearing of the motion for a new trial. It repeatedly has been held a mere statement by counsel that a witness would testify to certain facts is not the testimony of the witness and is not reviewable. (G. S. 1949, 60-3004; Bair v. Plummer, 154 Kan. 397, 118 P. 2d 566; Rusch v. Phillips Petroleum Co., 163 Kan. 11, 21, 180 P. 2d 270, and cases therein cited.)
The order sustaining defendant’s demurrer to plaintiff’s evidence and the judgment against plaintiff for the costs of the action are affirmed. | [
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The opinion of the court was delivered by
Wedell, J.:
The state appeals from a judgment suspending a padlock order on a building declared to be a common nuisance under provisions of the 1949 Kansas Liquor Control Act. (Chap. 242, Laws 1949.)
The record disclosed liquor had been sold to minors by defendant’s operator of the liquor store. The trial court found the premises in question located in the city of Emporia constituted a common nuisance under provisions of the above mentioned act and granted a temporary injunction against its operation. On the trial of the action March 7, 1951, the court declared the premises to be a common nuisance, enjoined their use until further order of the court and ordered the building and premises padlocked for a period of three months beginning forthwith. Whereupon defendant with consent of the court immediately filed a motion to suspend the padlock order provided that defendant execute a bond in the sum of $1,000, with surety approved by the court, conditioned upon defendant not violating any terms of the liquor control act for a period of two years and that defendant pay all costs assessed against him.
The material allegations of the application, in substance, were: Defendant had resided in the city of Emporia for more than twenty-five years; he had never been arrested or charged with any offense and had always been a law-abiding citizen; neither he nor his agents or employees had knowingly or willfully violated any provisions of the liquor law and if there were any transgressions of the law they were unintentional.
The court sustained defendant’s motion and allowed counsel for the state a fee in the sum of $150 for prosecuting the action and taxed the fee as a part of the costs.
Before considering the merits of the appeal we are confronted with appellee’s motion to dismiss it on the theory only an abstract question of law is presented and that a judgment on appeal will not affect the rights of the litigants. We find no merit in this contention. To be sure the first three months after the date of the padlock order have expired. The period for which an injunction is granted in any case may expire long before an appellant can be heard on appeal in this court. In the instant case the defendant continues to operate the liquor store. The padlock order was nullified by the suspension order. If the latter order was erroneously issued the padlock order must be enforced. It follows the legal question presented is not moot.
It is the state’s, appellant’s, contention the court erred in considering and granting appellee’s application to suspend the padlock order for the reason that under the provisions of G. S. 1949, 41-806 a padlock order for a minimum term of three months was mandatory and the trial court has no discretion in the matter; that its only d'scretion was whether it would order the premises padlocked for a k uger period than three months but not to exceed two years, citing, State v. Coleman, 168 Kan. 159, 211 P. 2d 81; State v. Wilson, 170 Kan. 194, 224 P. 2d 669.
On the other hand appellee argues the trial court is not divested of its discretionary power but is vested with the same equitable powers as it possesses in injunction cases generally. In support of this contention he relies on a statement relative to discretionary power contained in the concluding portion of the opinion in State v. Wilson, supra, and on other cases holding a court has equitable and discretionary power to make its injunction decrees just and reasonable under the facts and circumstances of the particular case. None of the last class of cases cited touching equitable powers involved the 1949 Kansas Liquor Control Act.
The precise question presented here was not an issue in State v. Coleman, supra, or State v. Wilson, supra. The instant issue is limited to the narrow question whether the Kansas Liquor Control Act (Chap. 242, laws 1949) makes it mandatory to padlock a building or premises for at least a minimum period of three months when found to constitute a common nuisance under that act.
G. S. 1949, 41-805 provides in part that any room, house, building, etc., found to be used in violation of the act shall be declared to be a common nuisance. The pertinent part of G. S. 1949, 41-806 reads:
“Upon final judgment against the defendant, such court shall allow the attorneys for the state of Kansas a reasonable fee for prosecuting the action which shall be taxed as costs and shall also order that such room, house, building, structure, boat or place of any kind shall be closed and padlocked for a period of not less than three (3) months nor more than two (2) years, and until the owner, lessee, tenant or occupant thereof shall give bond with sufficient surety to be approved by the court making the order, in the penal sum of not less than one thousand dollars ($1,000), payable to the state of Kansas, and conditioned that no alcoholic liquor will for a period of two years thereafter be manufactured, possessed, sold, bartered or given away or furnished or otherwise disposed of thereon or therein, or kept thereon or therein with intent to sell, barter, give away, or otherwise dispose of the same, contrary to this act, and that he and his surety will pay all fines and costs assessed against him for any violation of this act.”
The intent of the lawmakers is clear. The statute without qualifications requires the court, in the event a room, house, building, etc., is declared a common nuisance to order such place closed and padlocked for a period of not less than three months nor more than two years and until the owner makes the designated bond. The statute contains no permissive feature. It is mandatory. In the face of such clear and definite legislative direction courts are left without discretion in the premises.
Appellee further argues the legislative mandate was fully complied with the moment the court made the padlock order and that having once complied with the statute the court immediately thereafter suspend the operation of the order if in its discretion it found such suspension to be equitable. We cannot agree. To permit such a procedure would permit courts to nullify the legislative intent. It is true that in cases of conviction for violation of certain criminal statutes a court may in effect suspend the operation of the sentence by granting the defendant a parole. That power exists by virtue of express statutory authority vested in the courts to grant paroles. No such power to suspend a padlock order is called to our attention and we fail to find it in the instant act.
We have no hesitancy in concluding that by the Kansas Liquor Control Act the legislature did not intend to leave the question of padlocking premises for a three months’ period subject to the court’s discretion. The discretion permitted pertains solely to the two year period after the expiration of the first three months.
If we entertained any doubt on the subject of legislative intent, which we do not, such doubt would be completely resolved by a comparison of this act with the old injunction law pertaining to liquor nuisances. It is unnecessary to encumber this opinion with quotations from the old law. See G. S. 1935, 21-2109, et seq., and especially G. S. 1935, 21-2131; 21-2132, and also State v. Richardson, 128 Kan. 627, 278 Pac. 752. It will be seen that the old law did not specifically authorize padlocking. It was authorized under our decisions only by reason of contumacious conduct respecting a previous injunction.
Courts are not concerned with legislative policy or the wisdom thereof. Their function is to ascertain the legislative will and to make it effective if reasonably possible to do so. (State v. Momb, 154 Kan. 435, 119 P. 2d 544; Rausch v. Hill, 164 Kan. 505, 190 P. 2d 357; State, ex rel., v. Board of Regents, 167 Kan. 587, 593, 207 P. 2d 373.)
One other subject probably should be mentioned. The application to suspend the padlock order, as already stated, alleged that neither appellee nor his agents or employees knowingly violated the law. It is true the portion of the instant act which provides for the creation of a lien for fines and costs on a building or premises declared to be a common nuisance refers to an owner who knowingly suffers such building or premises to be used in violation of the act. (G. S. 1949, 41-805 [1].) Knowledge o£ violation of the act by the owner, however, is not made a condition precedent to the validity of a padlock order.
The judgment suspending the padlock order must therefore be, and it is, reversed with directions to the district court to reinstate its original order. | [
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The opinion of the court was delivered by
Price, J.:
This was an action in the nature of quo warranto to oust a rural high school district and its officers from using the proceeds of a bond issue to enlarge, equip, remodel, repair and improve a school building owned and used jointly with a common school district.
From a judgment ousting defendants from so proceeding they have appealed, and the basic question involved concerns the authority of the rural high school district and its officers to make such expenditure without the authorization of the cotenant grade school of any contribution by the latter to the cost thereof.
On the trial of the action the parties entered into a lengthy stipulation of facts and in addition thereto considerable oral evidence was introduced. At the conclusion thereof the court made extensive conclusions of fact and of law and rendered judgment accordingly. In our view of the case it is unnecessary to summarize in detail the evidence or the facts as found by the tidal court, and our statement thereof will therefore be confined to only such factual background as will present the issues litigated in the court below.
In 1924 Common School District No. 42 of Melvern (hereinafter referred to as the grade school district) constructed a two-story brick building on property owned by it in the city of Melvern. This is the school building involved in this case. Shortly thereafter the grade school district entered into a written contract by the terms of which it leased certain portions of the building to Rural High School District No. 7 (hereinafter referred to as the high school district), the defendant school district herein, for a term of twenty-five years at a specified rental. The purpose of this lease was to supply the high school district with facilities for the conduct of its high school. This lease arrangement continued in effect for a number of years, and in 1940 the grade school district conveyed an undivided one-half interest in the school building and property to the high school district. Since this conveyance the two districts have owned the building and property in equal shares as tenants in common, have used it jointly, and have contributed equally to the maintenance, repair and operation costs and expenses in connection therewith.
During the period from 1940 to 1950 the high school enrollment showed a gradual increase, and by 1949 grade school facilities in the building became seriously overcrowded, due chiefly to the fact that in the meantime a number of additional grade school districts had been consolidated with and were annexed to the grade school district, thus causing an increased enrollment. More room and facilities for the carrying on of its school operations and functions were needed and demanded by the grade school district. Public meet ings were held under the sponsorship of the high school district which ultimately culminated in a special election of the voters of the high school district being held on April 8, 1950, for the purpose of voting on a bond issue in a sum of not to exceed $85,000,
“. . . for the purpose of providing funds to pay the cost of enlarging, equipping, remodeling, repairing and improving the High School Building known as the High School Building located at Melvem, Kansas, jointly owned by Rural High School District No. 7 and School District No. 42, and now being used by both of said School Districts, . . .”
At this election the bonds carried by a vote of 279 to 277. Shortly thereafter the bonds were duly issued, registered and sold. This action was commenced in August, 1950.
It was stipulated by the parties, and the court so found, that it was the intention of the high school district and its officers to use the proceeds of the $85,000 bond issue, or so much thereof as was necessary, to construct an addition to the brick school building in question and to make certain alterations in it incidental thereto, all as shown by detailed plans and specifications prepared by their architects.
It was further stipulated, and the court in substance so found, that the high school district and its officers had not demanded or required, and would not receive, any contribution to the cost of the building and remodeling project from the grade school district; that there was no contract or agreement between the two districts concerning the making of such improvements, nor for contribution by the grade school district to the cost of the same; that no jointly constructed building had been authorized by majority vote of the grade school district; that no proceedings or election for such purpose had been authorized or commenced by the grade school district or its officers; that it would be impossible for the grade school district to pay one-half of the cost of the construction project without a bond issue for that purpose; and that if the high school district proceeded to make such improvements the grade school district would not contribute in any way to the cost thereof.
For its conclusions of law the lower court held that each of the two school districts is the owner of an undivided one-half interest in the school premises in question; that while the determination as to the needs of the high school district is a matter resting in the sound discretion of its officers, yet in carrying out such improvements as it deems necessary the high school board has only such authority as is conferred upon it by statute, either expressly or by necessary implication; that there is no statute authorizing the high school district to enlarge or improve the jointly owned building without the consent and co-operation of the grade school district, and that the high school district and its board members should be ousted from such illegal use of their powers.
Motions to vacate the findings and conclusions of the court and for a new trial being denied, defendants have appealed.
In passing, we note appellants’ objections to some of the court’s conclusions of fact and of law, and particularly with reference to the court’s conclusion on the question of vesting of title of such additions and improvements in both districts, but in our opinion all of those complaints become immaterial in view of what all parties to this appeal, and which is concurred in by us, concede to be the real issue in the case. That question is this:
Did the rural high school district have authority, express or necessarily implied, under then existing statutory provisions, to use the proceeds from the sale of bonds to pay the cost of enlarging, equipping, remodeling, repairing and improving a school building owned and used jointly with a common school district, without the authorization of such grade school district or any contribution by it to the cost of the same?
In our opinion it did not possess such authority.
Here all proceedings were had, and the bonds were issued, under the alleged authority of chapter 389, Laws of 1949, now appearing as G. S. 1949, 72-2016, which reads:
“The governing body of any rural high-school district, community high-school district, or common-school district is hereby authorized and empowered, when it deems it necessary by resolution duly adopted, to issue general obligation bonds of such school district for the purpose of raising funds to be used to pay the cost of equipping, enlarging, remodeling, repairing and improving schoolhouses existing in any such rural high-school district, community high-school district, or common-school district, and the purchase, repairing and installation of equipment therein or therefor: Provided, That no such bonds shall be issued until at an election called for that purpose, the question shall have been submitted to the qualified electors of the district, and a majority of all the qualified electors voting on the proposition shall have declared by their ballots in favor of the issuance of the same. All bonds issued under the provisions of this act shall be issued in accordance with the provisions of the general bond law, . . .”
Appellants concede this section does not specifically refer to a school building jointly owned and used with another school district, but argue that since a jointly owned building is not ex cepted, such a building is by implication included by the use of the word “anyT We cannot agree.
In this state it has long been the rule that school districts and other subdivisions of the state have only such powers as are conferred upon them by statute, specifically or by clear implication, and that any reasonable doubt as to the existence of such power should be resolved against its existence. (School District v. Robb, 150 Kan. 402, 93 P. 2d 905, 124 A. L. R. 879; Township Board of Ash Creek v. Robb, 166 Kan. 138, 199 P. 2d 521; Byer v. Rural High School Dist. No. 4, 169 Kan. 351, 219 P. 2d 382.)
In one of our earlier cases (Stewart v. Gish, 109 Kan. 206, 198 Pac. 259) a rural high school district and an ordinary school district formed in part from the same territory, each of which had statutory authority to erect a schoolhouse for its own use, attempted to join in the erection of a schoolhouse for their common benefit. This court held that without express legislative authority the two districts had no power to carry out such undertaking. The analogy of the reasoning upon which that decision was based is quite applicable to the question now before us. Subsequently the legislature enacted what now appears as G. S. 1949, 72-317, which provides for the construction of a school building for the joint use of two school districts upon the terms and conditions specified therein. However, even assuming, for the sake of argument, that this statute would have authorized the project sought to be undertaken here, compliance with its provisions was not had.
Appellants call our attention to § 17 of chapter 395, Laws of 1951, recently enacted by the legislature, pertaining to joint school buildings, and it is argued the language of this act (which did not become effective until July 1, 1951, and its publication in the statute book) is strong evidence of what was intended by the passage of G. S. 1949, 72-317, supra. We cannot agree. Aside from the fact the 1951 act would have no application to the proceedings under consideration, which took place in 1950 — and it is conceded the parties to this litigation did not even take the steps now provided for by such later enactment for such a project as was attempted here — we think the language contained in the 1951 act is a clear legislative recognition of the fact that neither G. S. 1949, 72-317 nor 72-2016 was broad enough to include the project under consideration. The former concerns the joint construction of school buddings for the joint use of both districts specified therein, while the latter has to do with the equipping, enlarging, remodeling, and so forth, of schoolhouses existing in any such district enumerated, but is silent as to schoolhouses jointly owned and used.
In conclusion, we hold that G. S. 1949, 72-2016, does not authorize, expressly or by necessary implication, the appellant high school district and its officers to use the proceeds from the sale of the bond issue in question to pay the cost of the project here attempted. The proposed action is clearly a use of public funds for a purpose other than that provided by the statute and is in violation thereof. Such being the case, the judgment of the lower court in ousting appellants from such illegal use was correct, and it is affirmed. | [
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The opinion of the court was delivered by
Wedell, J.:
Plaintiffs appeal from an adverse judgment rendered against them in an action to recover damages to real property, and the contents thereof, caused by fire which started in a building owned by the defendant.
The plaintiffs, Oscar E. Mehl and George E. Mehl, operated a sheet metal works in the city of Coffeyville and the defendant, Orvil A. Carter, operated an auto and electric supply business in an adjoining building to the north.
This is the second chapter of this litigation. (Mehl v. Carter, 168 Kan. 342, 212 P. 2d 227.) On the former appeal it was held the insurance companies which had insured loss on appellants’ building and contents were the real parties in interest to the extent of their payments of loss. The petition was thereafter amended in harmony with that decision in order to disclose the respective interests of the insurance companies and appellants in the recovery sought.
The first question is whether the defendant-appellee is liable in damages in any amount. In order to properly appraise appellants’ contentions on appeal it is important to examine the principal issues joined by the pleadings. Briefly stated appellants, in substance, alleged:
Appellee’s agents, servants and employees were guilty of negligence in maintaining gasoline on the premises in violation of certain city ordinances which prohibited the keeping or storage of gasoline in quantities exceeding five gallons unless stored in underground tanks and which provided that all inflammable liquids not so stored should be kept in tight and entirely closed metal cans and painted red and that inflammable liquids should not be handled in the presence of an open flame or fire and that no open flame, heating or lighting device should be used in any room where gasoline or other volatile inflammatory fluids were stored or handled; that appellee’s agents and employees should have known that handling of gasoline in open containers in the presence of an open flame or fire would cause the gasoline to become ignited; appellee’s servants and agents negligently and carelessly suffered and permitted gasoline to be spilled and to escape from a container and that by reason of such negligence it became ignited and that such negligence caused the fire and resultant damage.
These allegations of negligence appellee denied and upon the issues thus joined the action was tried. Appellants’ evidence, in substance, disclosed:
The workroom of appellee in which the fire occurred and from which it spread to appellants’ building was approximately 100 feet long and twenty-five feet wide; towards the rear and three or four feet from the south wall appellee maintained two workbenches approximately three feet wide and eight feet long; on an extension to the east bench appellee had placed an open container with gasoline for the purpose of washing automobile parts; the container was located on a shelf extending out from the side of the bench with a molding around it; the bottom of the container was ten to twelve inches across and eight inches high; if filled it would hold a gallon or two; about eight or ten feet from this container appellee had a circulating gas heater on the floor which was enclosed except for small openings which were necessary to admit oxygen without which the stove could not operate; Gene Woods, the only employee of appellee who was working in the room at the time, was at or near the east workbench; Harry Boothby drove his wife’s car into appellee’s place of business to have the windshield wiper fixed; with him was one of his employees, Kenneth Kinsley; they went to the east workbench where Gene Woods was employed; while there Pat Walterschied came into the building through a rear door and joined the group at the east bench; Boothby was singing a song and Walterschied came in and “fooled with” him as he was singing; some scuffling ensued; some of appellants’ evidence disclosed Woods participated in the scuffling and other portions of their evidence tended to indicate he did not but was merely listening to the song; the gasoline container was knocked off the bench, the gasoline ran under the stove and ignited, resulting in the fire; some of appellants’ evidence disclosed uncertainty concerning who knocked the can off the bench; other testimony of appellants disclosed it was not knocked off the back of the bench by Gene Woods, appellee’s employee, but by Walterschied who had gone behind the workbench; the gasoline spilled on Walterschied’s trousers and they were burned.
Touching the question of Gene Woods’ participation in the scuffling Boothby, appellants’ witness testified:
“Q. Was Mr. Gene Woods there with you?
“A. Yes, sir; he was listening.
“Q. If there was any horse play, was Gene Woods in it?
“A. No sir; he was standing there listening to it; I was singing a song.”
Appellants’ evidence also disclosed: A fire inspector from the Coffeyville fire department had been in appellee’s place of business some six weeks prior to the instant fire to have his car repaired; while there he observed an open container on a shelf attached to the south side (back side) of the east workbench; upon inquiry to Gene Woods he was informed Woods used gasoline in the container to clean parts; he informed Woods an open container of gasoline used near an open flame was dangerous; that gasoline fumes or vapors from an open container could become ignited and might burn the place sometime.
Appellee’s demurrer to appellants’ evidence was overruled. Appellee introduced the evidence of his only employee, Gene Woods. Insofar as material Gene Woods’ testimony was, in substance, as follows:
His workbench was the east one; he had gasoline on the shelf for the purpose of cleaning parts; the container was “half of a five-gallon can” which had been cut down; the gasoline container was not bolted down; it was located on a shelf extending out from the side of that bench with a molding around it so that it would not slip off; a similar container was on the west workbench; there could not have been over a quart of gasoline in each of the containers; the gasoline can was to the back and in front of the stove but empty; it had been steamed out the day before and it was painted red; there was no other gasoline in the building; at the time of the fire he had his hands on a vise at the west end of the bench; at no time before the fire was he close enough to the can of gasoline on the bench to have knocked it over; Pat Walterschied had come over for the purpose of going for some coffee; Boothby was singing a song in which he kidded him, Woods, about being in school; he had just attended a carburetor school at St. Louis; just before the fire he and Walterschied were getting ready to go and get coffee.
Appellants’ motion for a directed verdict was overruled. A general verdict was rendered in favor of appellee.
The jury made the following findings of fact:
“1. Q. Did defendant use or cause to be used on said premises on said date, an open flame or heating device in any room where gasoline was stored or handled? A. No.
“2. Q. Was the defendant negligent in his use of gasoline, at said time and place? A. No.
"3. Q. Do you find and believe from the evidence that the defendant kept, or that his servants, agents or employees kept gasoline in an open container in the defendant’s place of business on February 5, 1948? A. Yes.
“4. Q. If you answer question No. 3 in the affirmative do you find and believe from the evidence that on said date and at the same time that gasoline was kept in open containers, a stove was burning in defendant’s place of business? A. Yes.
“5. Q. In the event you answer question No. 3 in the affirmative state how far the closest pan of gasoline was from the fire? A. Nine feet.
“6. Q. Would the injury to the Mehl property have occurred unless the defendant kept gasoline in an open container in close proximity to a gas stove? A. No.
“7. Q. Do you find that upsetting the can containing gasoline was the proximate cause of the fire? A. Yes.
“8. Q. If you answer question No. 7 in the negative then state what you find was the proximate cause of the fire? A. (No answer.)
“9. Q. Do you find that an employee of the defendant upset the can containing gasoline? A. No.
“10. Q. If you answer question No. 9 in the affirmative state the name of the employee that you find upset the can containing gasoline? A. (No answer.)”
Appellants assert the trial court erred in overruling their motion to strike findings 1, 2 and 7 on the ground they were contrary to the undisputed evidence and that no evidence was adduced to sustain them. A studious examination of the record will not permit us to sustain this motion. Although the testimony did not describe a circulating heater in detail it tended to show the flame in such a stove is enclosed but that the stove does contain some openings for the supply of oxygen in order to make it burn. Such stoves, of course, are in rather common usage and the jury was probably familiar with their general construction. In any event we think we would not be justified in concluding as a matter of law that a circulating heater constituted an open flame within the contemplated meaning of the city ordinance. We find no evidence that such a stove is regarded by fire inspection authorities as constituting an open flame. The jury found it was not an open flame or heating device. In appellants’ brief we find no objection to the instruction given on the subject of the ordinance respecting an open flame or heating device. Under the circumstances we think the jury was justified in making finding 2. In view of the pleading and the evidence the jury was justified in finding the proximate cause of the fire in this particular case was not the mere presence of an open container of gasoline but the upsetting of the gasoline and that it was not upset by appellee’s employee.
Appellants argue question 7 should not have been submitted for the reason the question of proximate cause was one of law. The question of negligence, including proximate cause, is ordinarily one for the jury. (Jones v. Kansas Public Service Co., 158 Kan. 367, 147 P. 2d 723; Rowell v. City of Wichita, 162 Kan. 294, 301, 176 P. 2d 590; Atherton v. Goodwin, 163 Kan. 22, 180 P. 2d 296.)
We think a fair interpretation of appellants’ amended petition is that they relied on the spilling of the gasoline and not its mere presence in the building as constituting the' proximate cause of the fire. Rut we shall nevertheless later treat appellants’ contention concerning negligence in merely keeping gasoline in an open container.
The trial court properly overruled the motion to strike the challenged findings.
Appellants further contend the court should have sustained their motion for judgment non obstante veredicto. For the purpose of obtaining a ruling on such a motion the motion concedes the findings are supported by evidence. (Haney v. Canfield, 152 Kan. 597, 600, 106 P. 2d 662; Sayeg v. Kansas Gas & Electric Co., 156 Kan. 65, 66, 131 P. 2d 648.) In order to sustain such a motion it is not sufficient that there be some inconsistencies between the findings but they must be so contrary to the general verdict as to clearly compel the court to overthrow the verdict and to render a contrary judgment as a matter of law. (Taggart v. Yellow Cab Co. of Wichita, 156 Kan. 88, 94, 131 P. 2d 924; Jelf v. Cottonwood Falls Gas Co., 162 Kan. 713, 716, 178 P. 2d 992.)
Appellants call attention to finding 6. Of course, that finding is true. It does not follow, however, as a matter of law that the mere presence of the open can of gasoline constituted the proximate cause of the fire. The jury expressly found it did not. It expressly found the proximate cause of the fire was not the presence of the gasoline but the spiffing of it and that appellee’s employee did not spill it. Findings must always be considered as a whole and harmonized with each other and the general verdict if reasonably possible to do so. Here we have no trouble in so harmonizing them.
Appellants’ counsel persistently argue the proximate cause of this fire was appellee’s negligence in leaving the open unfastened can of gasoline on the bench. The jury found otherwise and we have previously indicated its findings cannot be disturbed. Appellants, however, contend they were entitled to have their motion for a directed verdict sustained on the theory the keeping of the open can of gasoline was the proximate cause of the fire. In order to sustain that contention we would be obliged to do so purely as a matter of law. Manifestly that cannot be done under the facts of this case. Undoubtedly gasoline is a dangerous and inflammable commodity and should be handled with commensurate care. In this case even though it be conceded to be dangerous to keep an open container of gasoline in a workshop, with or without an open flame, there was no evidence the fumes or vapors from the can of gasoline, while located on the workbench, entered the stove and were ignited. If the evidence even tended to show the fire was caused in that manner we woud have an entirely different case for review. Liability cannot be predicated on the basis of what possibly might have happened but must be determined on the basis of what actually occurred.
Of course, a person cannot without liability create a condition which, in the exercise of reasonable care, should cause him to realize an injury is probable or likely to occur but a person is not liable for a consequence which is merely possible but not likely to occur. Stated in another way, one is bound to anticipate and provide against what usually happens or is likely to happen but it would impose too heavy a burden to be held responsible for guarding against what is unusual or unlikely to happen and what has been said to be only remotely or slightly probable. (Thummel v. State Highway Comm., 160 Kan. 532, 541-542, 164 P. 2d 72; Rowell v. City of Wichita, 162 Kan. 294, 301-303, 176 P. 2d 590; Atherton v. Goodwin, 163 Kan. 22, 26, 180 P. 2d 296.) Whether appellee was negligent in that respect was a jury question. The jury resolved that inquiry in appellee’s favor. Had appellee’s employee knocked the can off the bench in the course of his duties a different question woud be presented with respect to what appellee reasonably should have anticipated. But that is not this lawsuit. We think we would not be justified in concluding as a matter of law that appellee, in the exercise of reasonable care, should have anticipated the danger of some outsider going behind a workbench and there disturbing tools or equipment located at the rear of such a bench. Surely appellee was not obliged, as a matter of law, to anticipate a scuffle by outsiders would be probable or was likely to occur at such a place. There was not the slightest evidence of such or similar previous occurrences and no logical or reasonable basis for appellee or his employee anticipating such conduct on this occasion.
In the Rowell case, supra, it was held:
“Natural and probable consequences are those which human foresight can anticipate because they happen so frequently they may be expected to recur.” (Syl. f 8.)
The Rowell case strongly relied on by appellants is not controlling under the facts of the instant case. That case involved a demurrer to a petition. The petition contained ample allegations disclosing defendants long had knowledge of tire danger of permitting beverage bottles to become vagrant and unconfined in the stadium to the extent they created a dangerous public nuisance which resulted in the injury and damage to the plaintiff. Here we are concerned with evidence and specific findings of a jury exculpating appellee of negligence.
We now reach appellants’ complaint concerning (1) the instructions given and (2) the refusal to give certain requested instructions. Neither the record nor the brief of appellants discloses the specific nature of the objections made at the time of the trial or on the motion for a new trial to instructions given, if any specific objections were called to the court’s attention. Appellants merely assert they objected to the instructions given and requested certain instructions. Under these circumstances we, of course, can ascertain the nature of the objections to the instructions given only by making a comparison with the instructions requested. This we have done. It will serve no useful purpose to restate the principles of law applicable under the issues joined by the pleadings and the evidence • adduced and, for emphasis, we probably also should say — in view of the absence of evidence. Upon the basis of the record before us we discern no reversible error in the instructions given or in refusing the requested instructions.
Appellants contend this case involved recovery of money by an insurance company and that this fact may have had some influence on the jury. It is observed appellants do not say such fact actually influenced the jury. They merely say it may have done so. But we are nevertheless at a loss to understand that contention. Notwithstanding our former opinion in the first chapter of this litigation (Mehl v. Carter, 168 Kan. 342, 212 P. 2d 227) in which we held an insurance company is the real party in interest to the extent of its payment of loss, the trial court, after the petition was amended in conformity with our opinion, denied appellee the right to cross-examine on the subject of payment of loss and refused to permit the subject of insurance to be mentioned in any manner. Appellee has not cross-appealed from that ruling and the question whether his rights were prejudiced thereby is not before us. Surely, however, appellants cannot contend they were prejudicially affected by the ruling which prevented a disclosure of the fact an insurance company was interested in a recovery in this action.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Price, J.:
This is an appeal by the State from an order granting defendant a new trial following his conviction of grand larceny.
The defendant was charged with the larceny of a hat and topcoat alleged to be of the value of $60. We are told that the jury found the property to be of the value of $35. Following his conviction defendant filed a motion for a new trial, alleging four grounds — (1) the admission of illegal and improper testimony over his objections; (2) the verdict was contrary to law and the evidence; (3) insufficiency of the State’s evidence to warrant a conviction of grand larceny; and (4) the alleged arraignment of defendant on the opening day of the term of court at which he was tried, in the absence of his counsel.
This motion was argued orally by counsel for the State and defendant, and taken under advisement. Later, counsel for both sides filed written briefs and further oral argument was had. The motion was sustained and the journal entry covering such ruling recites:
“Thereupon the court having heard the oral arguments and examined the written briefs of the respective parties of record and being now fully advised and informed in the premises finds that said motion for a new trial should be sustained and the verdict of the jury heretofore rendered set aside and held for naught and defendant granted a new trial.”
At the outset it should be noted that defendant questions the State’s right to appeal from an order such as this, citing G. S. 1949, 62-1703, which provides that appeals to this court may be taken by the State only (1) from a judgment for defendant in quashing or setting aside an indictment or information; (2) upon an order arresting the judgment; and (3) upon a question reserved by the State. It is contended that only the third ground could possibly have any application to this appeal, and that as the record is silent concerning any “reservation” by the State it therefore is precluded from appealing.
We think there is no merit to defendant’s contention in this respect. While it is true the statute above referred to does not specifically mention the granting of a defendant’s motion for new trial as being one of the instances in which the State may appeal, yet this court has held that in order to reserve a question for presentation to the Supreme Court on an appeal by the State it is unnecessary for the State to do more than should be done by a defendant to lay the foundation for an appeal by him. See State v. Simpson, 169 Kan. 527, 220 P. 2d 175, where this question was gone into, and our earlier decisions, including State v. Mitchell, 143 Kan. 322, 54 P. 2d 917; State v. Short, 121 Kan. 233, 247 Pac. 114; and State v. Marek, 129 Kan. 830, 284 Pac. 424, were analyzed and discussed.
The record before us establishes that the State resisted defendant’s motion for a new trial. Had the motion been overruled all that would have been required of defendant in order to appeal would have been for him to file his notice of appeal. Under the holding in the Simpson case, supra, it therefore appears the State did all that was required of it when it filed its notice of appeal from the court’s ruling.
Considerable testimony of the complaining witness concerning the value of the articles allegedly stolen from him is abstracted, together with objections thereto by defendant. While there are some conflicting statements made by counsel in the abstract and counter abstract concerning the exact ruling of the court on objections to the competency and admissibility of this particular fine of testimony, yet from the record as a whole we understand the court permitted most, if not all, of this evidence to go to the jury.
Included in the abstract is a statement by counsel for the State to the effect that when ruling on the motion for new trial, the trial judge orally stated that he did not believe the prosecution had proved the value of the articles stolen and that he was going to grant a new trial because of that. This alleged oral remark by the trial judge apparently was not made in the presence of the official court reporter and is not abstracted as a part of the record, as such. Under those circumstances such gratuitous statement of counsel for the State, being unsupported by the record, cannot be considered and forms no basis upon which error may be established. (State v. Ryan 141 Kan. 549, 42 P. 2d 591.)
There is still another reason why we think it is unnecessary to go into the question of the competency and admissibility of that particular line of testimony. The motion for new trial contained four grounds. The journal entry covering the court’s ruling sustaining the motion is silent concerning the ground or grounds upon which the ruling was made. Under such circumstances this court cannot reach out and determine the correctness of the lower court’s reasoning which prompted it to sustain the motion.
And this brings us to the real issue in this appeal, namely, did the lower court err in granting a new trial? The State, in effect, asks this court to set aside the order and to reinstate the verdict of guilt. On the record before us we cannot do so. In the first place, the reasons which may have prompted the trial court to grant a new trial are not shown. Many things occur during the trial of a case which are not reflected in the cold printed record on appeal. It may be that the trial court was simply of the opinion the defendant had not had a fair trial. It may be that it was in doubt as to the sufficiency of the evidence. The trial court saw the witnesses and heard them testify. We are deprived of that advantage. At any rate, its action indicates clearly that it could not approve the verdict, and that being the case it was its imperative judicial duty to grant a new trial. In State v. Miller, 154 Kan. 267, 118 P. 2d 561, where the State appealed following the granting of a new trial to a convicted defendant because the trial court was not convinced defendant had received a fair trial, it was held that under such circumstances it was not only the court’s right, but was its duty, to grant a new trial, and that it always has been the rule that the verdict of the jury must be approved by the trial judge upon his own independent judgment and not upon the judgment of the jurors. Here the trial court exercised its judgment and prerogative in that respect, and neither error nor abuse of discretion has been made to appear.
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The opinion of the court was delivered by
Parker, J.:
These cases originated in the probate court of Barton county. Case No. 38,310 was commenced by L. C. Michaux as the wife and next friend of Fred Michaux, an alleged incompetent person, by the filing of a petition, pursuant to the provisions of G. S. 1935, 60-3007, now G. S. 1949, 60-3007, to vacate and set aside a portion of the order of final settlement and distribution made by the probate court in administration proceedings pending in the estate of A. J. Michaux, deceased. Case No. 38,309 was instituted in like manner by the filing of a claim against the estate of Lillie Michaux, deceased. Judgment was rendered against the petitioner in both cases. On appeal to the district court the two cases were consolidated and tried together. At the conclusion of that trial the district court found the evidence on behalf of the petitioner failed to establish the incompetency of Fred Michaux on the date of the order of final settlement and distribution in the A. J. Michaux estate and rendered judgment (in Case No. 38,310) denying the petition to vacate that order, also judgment (in Case No. 38,309) denying the claim against the estate of Lillie Michaux. Following the rendition of these judgments the claimant and/or petitioner perfected two appeals which were given numbers in this court as heretofore indicated and later consolidated.
The facts of this case, as will be presently disclosed, are relatively unimportant. However, those necessary to a proper understanding of the factual situation will be briefly summarized.
A. J. Michaux, a resident of Barton county, died some time during the latter part of 1943 leaving a last will and testament in which he gave an eighty acre tract of real estate to his son, Fred Michaux, subject to such devisee’s paying the testator’s wife, Lillie Michaux, the sum of $920.00 within six months from the date of his death and provided that in the event of failure on the part of such devisee to make the payment in accord with the terms and conditions of the will then, and in that event, title to the real estate should not vest in Fred but was to go to his wife. This will was admitted to probate in due course. Fred failed to make the payment within the period of time required. Some six months after the testator’s death, and while his estate was still in process of administration, the widow filed a petition in probate court setting forth that fact and asking that the real estate be awarded to her in conformity with the terms of the will. This petition was granted and an order entered awarding her the property. Thereafter, on May 12, 1944, the probate court made an order of final settlement and distribution which, among other things, declared the widow to be the absolute owner of the real estate under and by virtue of the terms of the will. On some date in 1944, not here important, Lillie sold the property and received the purchase price. So far as the record discloses Fred made no claim to the land, nor was any claim made on his behalf, until February 8, 1950, when his wife, as his next friend, filed the petition in probate court, heretofore mentioned, asking that the order of final distribution and settlement in the A. J. Michaux estate proceeding be vacated on the ground her husband was incompetent and of unsound mind on the date of its rendition.
Lillie Michaux died during the latter part of the year 1949 and her estate was in process of administration at the time of the commencement of the proceeding to vacate the decree of final settlement and distribution. On the same day the petitioner in Case No. 38,310 instituted that proceeding she filed a claim against Lillie’s estate, for and on behalf of Fred, alleging facts similar to those set forth in her petition to vacate and asking that the claim be allowed for the amount such decedent had received from the sale of the real estate in her lifetime less the amount Fred would have had to pay in order to acquire title thereto under the terms and conditions of the will of A. J. Michaux. What happened to this claim and to the petition to vacate the final settlement decree in both the probate and district courts has been heretofore stated and need not be repeated.
At this point it should be stated the parties agree that Case No. 38,310 is of primary importance on appellate review and that the petitioner and/or claimant herein admits that an affirmance of the judgment in such case will necessarily result in affirmance of the judgment in case No. 38,309. For that reason, until otherwise indicated, subsequent portions of this opinion will have reference to the parties and issues involved in 38,310.
Specifications of error relied on by appellant as ground for reversal of the judgment are (1) that the decision of the district court was not sustained by the evidence and (2) that such court erred in refusing to give consideration to certain evidence. At the outset appellee meets the challenge to the judgment raised by these specifications of error by asserting that they pertain to trial errors which are not subject to appellate review in a case where — as here — it is conceded no motion for a new trial was filed or presented in the court below.
Generally speaking it can be said there can be no question in this jurisdiction that trial errors such as are here involved are not subject to appellate review in the absence of a motion for a new trial in the court below. See Johnson v. Best, 156 Kan. 668, 135 P. 2d 896, where we held:
“In the absence of a motion for a new trial there can be no reexamination of issues of fact.” (Syl. j[ 4.)
And our recent decision Rasmussen v. Tretbar, 170 Kan. 184, 224 P. 2d 1010, which holds:
“A judgment of the trial court setting aside deeds to appellant and quieting title in appellee as against appellant — which judgment is not reviewable because no motion for new trial was filed — leaves appellant with no interest in die land which is the subject of tire action and no standing on appeal to this court to question rulings of the trial court on questions of law.” (Syl. f 2.)
Many other decisions to the same effect could be cited if necessary but for our purposes it suffices to say they adhere to the rule announced in the foregoing decisions. Indeed our decisions go so far as to hold that even when a motion for new trial is filed and presented in the court below an appeal from an order overruling it presents nothing for review where the record does not show the motion for new trial or a ruling thereon, and in no way discloses what alleged trial errors were brought to the attention of the trial court when it was heard. See Klager v. Murphy Alfalfa, Inc., 165 Kan. 130, 193 P. 2d 216, and Hamilton v. Binger, 162 Kan. 415, 418, 176 P. 2d 553, and decisions there cited.
From the foregoing decisions it appears appellee’s position the errors assigned by appellant are not subject to appellate review must be sustained unless tbe instant proceeding falls within some exception to the general rule. Appellant argues the rule is limited to actions commenced in the district court and has no application to a probate proceeding which is appealed to district court and thereafter determined by that tribunal. The fallacy in this argument appears in the probate code itself (see G. S. 1949, 59-2408) which provides that the district court shall proceed to hear and determine an appeal from probate court de novo and in doing so shall have and exercise the same general jurisdiction and power as though the controversy had been commenced by action or proceeding in such court and as though it had original jurisdiction. We are therefore constrained to hold that upon appeal to the district court from an order from a decision of the probate court refusing to set aside an order of final settlement and distribution the cause is tried in conformity with the rules of civil procedure and that parties desiring to appeal from the judgment rendered therein must file and obtain a ruling on a motion for a new trial before this court can review trial errors such as are here involved. This conclusion, it is to be noted, is in harmony with our earlier decisions (In re Estate of Peirano, 155 Kan. 48, 122 P. 2d 772; In re Estate of Gereke, 165 Kan. 249, 256, 195 P. 2d 323, and In re Estate of Regle, 170 Kan. 558, 228 P. 2d 722) which clearly indicate that on appeal to district court from various other probate proceedings the trial is to be conducted in the same manner as though the action had been originally commenced in that tribunal.
Obviously in an attempt to forestall the conclusion just announced appellant points to our recent decision in Prier v. Lancaster, 169 Kan. 368, 219 P. 2d 358, holding that a hearing on a motion is not a trial within the contemplation of our code of civil procedure and a motion for a new trial is unnecessary to obtain a review of errors alleged to have been committed at such a hearing. It is then urged that what she actually filed in probate court was a motion to vacate the decree of final settlement and distribution, not a petition. Let us see. The probate code itself provides that every application in a probate proceeding, unless made during a hearing or trial, shall be by petition (G. S. 1949, 59-2201) and recognizes (G. S. 1949, 59-2204) that upon the filing of that petition a petitioner has commenced a proceeding in which he is entitled to a trial of the issues therein involved upon the merits, also a subsequent appeal and trial de novo in the district court (see G. S. 1949, 59-2408) in the event he is dissatisfied with the pro bate court’s decision. Moreover, the very statute on which appellant relies (G. S. 1949, 60-3007) provides that the proceeding to vacate or modify a judgment or order against a person claimed to be incompetent shall be by petition verified by affidavit on which when filed a summons shall issue and be served as in the commencement of an action. Based on the facts of this case and the sections of the statute to which we have just referred we have little difficulty in concluding appellant’s contention on this point has no merit. We therefore hold that when she filed her petition she commenced a proceeding in which she was entitled to a trial on the merits, that she was accorded a trial on the merits in both the probate and district courts, and that under such conditions and circumstances Prier v. Lancaster, supra, on which she relies has no application.
The record in Case No. 38,309 discloses that appellant must obtain a reversal of the judgment rendered by the trial court in Case No. 38,310 before being entitled, even on her own theory, to any relief in that action. The conclusions heretofore announced necessarily require an affirmance of the judgment rendered in Case No. 38,310. The result is that the judgment in Case No. 38,309 must also be affirmed.
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The opinion of the court was delivered by
Wertz, J.:
This is an action for recovery of money wherein appellee seeks to recover from a common carrier in interstate commerce the proceeds of a check deposited with the carrier under conditions hereinafter related.
The pertinent facts disclosed by the pleadings and evidence at the trial and as found by the court may be stated as follows: Plaintiffappellee, the O. A. Sutton Corporation, ordered certain merchandise from the Western Smelting and Refining Company of Omaha, Nebraska. The seller shipped the order by way of defendant’s truck line on a uniform shipper’s order bill of lading with instructions to notify consignee (plaintiff) upon arrival, inspection by consignee not permitted. The bill of lading went forward through banking channels with a sight draft attached. The shipment reached defendant’s dock in Wichita on the morning of October 27, 1948, and plaintiff was advised of such arrival by defendant. The bill of lading with draft attached arrived at the First National Bank in Wichita before the close of .business the same day. Plaintiff’s purchasing agent called at defendant’s place of business requesting permission to inspect the shipment, and was advised by defendant that inspection could not be had without the bill of lading unless plaintiff deposited its certified check in the amount of 125% of the invoice price of the merchandise, pursuant to Rule 7 of the interstate commerce commission traffic regulations. Plaintiff thereupon deposited with defendant its check in the amount requested under an oral agreement with defendant that if after inspection by plaintiff the shipment was rejected, the check so deposited would be returned by defendant to plaintiff, but if the goods were accepted after inspection, the check was to be held by defendant until the bill of lading was surrendered to defendant by plaintiff.
Under this agreement, defendant accepted plaintiff’s check. Plaintiff made inspection of the merchandise on defendant’s dock, found it to be unsatisfactory, and demanded return of its check so deposited, which was refused by defendant. No damage to the goods was occasioned by the inspection.
Defendant forwarded plaintiff’s check to its home office in Omaha where it was cashed and defendant paid the shipper and took up the bill of lading and draft. The merchandise has been in the possession of the defendant at all times.
The trial court found all issues in favor of plaintiff and rendered judgment in its favor, for the amount of the check so deposited. Post-trial motions were filed by defendant and overruled by the court. From the trial court’s rulings, defendant appeals to this court setting forth several specifications of error. Numerous errors are assigned but they can all be centered on the sufficiency of the allegations of the petition to constitute a cause of action and the sufficiency of the evidence to support the same.
Defendant argues but two questions on appeal: (1) Was the evidence sufficient to prove an oral contract between the carrier and the consignee; and (2) May an oral contract be enforced between a carrier and a consignee giving the consignee a right of inspection when inspection is forbidden by the shipper’s order bill of lading?
As to defendant’s first contention, we have examined the record and have found sufficient substantial evidence to support the oral contract between plaintiff and defendant permitting inspection, and the court’s finding that such contract was entered into will not be disturbed.
Defendant contends that the oral agreement entered into between plaintiff and defendant was in violation of the rules and regulations of the interstate commerce commission and therefore void. Plaintiff contends that the agreement is valid and enforceable. When plaintiff s agent expressed a desire to inspect the shipment in question and, if satisfactory, to obtain delivery before he had procured the Ml of lading, he was advised by defendant’s agent that it would be necessary to comply with the applicable interstate commerce commission rule. That rule is found in the published tariffs governing motor carriers, being part 4 of rule 7, and provides:
“The surrender of the carrier’s original order bill of lading, properly endorsed is required before delivery of the property, but if such a bill of lading be lost or delayed, the following will govern: The property may be delivered in advance of the surrender of the bill of lading upon receipt of the carrier’s agent of a certified check for an amount equal to 125% of the invoice or value of the property or at the carrier’s option, upon the receipt of a bond, acceptable to the carrier, in an amount for twice the amount of the invoice or value of the property, or a blanket bond may be accepted when satisfactory to the carrier as to surety, amount and form.”
Plaintiff produced its check in the requisite amount and delivered it to defendant’s agent after again emphasizing that it expected the check to be returned if the merchandise was not satisfactory. The shipment was inspected and rejected, but the carrier refused to return the check.
We have no quarrel with the numerous authorities cited by defendant which hold generally that contracts which constitute a preference or discrimination in violation of the Elkins Act, 49 U. S. C. A. § 41, are void. We do not consider that the cases cited, however, relate in any fashion to the case here. Defendant does not even venture to suggest what rule or regulation is violated by the transaction, and cites none. We are unable to find from an examination of the record where the oral contract entered into between plaintiff and defendant was in violation of any law or public policy.
A provision in a bill of lading that inspection will not be permitted unless provided by law or unless permission is endorsed on the original bill of lading or given in writing by the shipper, being inserted for the protection of the carrier, may be waived by it,- and places no restriction on the rights of the carrier and the consignee to contract with reference to inspection. (13 C. J. S. 327; Hines v. Scott, 112 Tex. 506, 248 S. W. 663; Famous Mfg. Co. v. Railway, 166 Ia. 361, 147 N. W. 754.) Defendant having the right to waive the restriction on inspection and plaintiff having the right, under the oral contract with defendant, to inspect the property, to determine whether the merchandise was as represented, and if re jected on inspection, to have his check returned; the inspection so agreed upon was neither wrongful nor unauthorized, and in view of the oral agreement between the parties, did not constitute a delivery of the merchandise to the plaintiff.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Price, J.:
This appeal arises out of a contempt proceeding instituted in a separate maintenance action.
On the morning of June 15, 1950, plaintiff wife Sled an action for separate maintenance in the district court of Kingman county, alleging extreme cruelty and gross neglect of duty on the part of her husband, his failure to support her and their minor child, who was in her custody, and the prayer of her petition, among other things, was that she be given temporary support for herself and child and upon final hearing she be granted permanent alimony and support, together with the custody of the child and support therefor, and for costs of the action, including attorney fees.
Summons was issued on that day, directed to the sheriff of Sedgwick county. It was received by that officer on the next day and served on defendant that afternoon.
On the same morning (June 15th) that the wife filed her action for separate maintenance in Kingman county her husband filed an action for divorce in Sedgwick county. Summons in this action was duly issued on the same day, directed to the sheriff of Kingman county, and was received by that officer the next day. Service of this summons was made on the wife on June 20th.
On June 20th, in the separate maintenance action in Kingman county, the court made an order requiring the husband to pay into court for the support óf his wife and minor child the sum of $15 every two weeks, commencing on June 30th, and the sum of $75, payable in monthly installments of $25 each, for her attorney fees. A copy of this, order was served on the husband on June 21st.
On July 17th the husband, by special appearance, moved to set aside and quash the service of summons in the separate maintenance action on the ground that at the time of the filing of that action there was another, suit pending between the parties in the district court of Sedgwick county and .that the latter suit had been filed and summons issued prior to the filing of the separate maintenance action.
This motion to quash was overruled on September 9, 1950.
Contempt proceedings having been instituted, an accusation in contempt was filed on September 25th, on which date evidence was introduced concerning the filing of both actions and with particular reference to the time of day of such filing and issuance of summons in each. In substance, the husband’s sole defense to the contempt proceeding was that the district court of Kingman county had no jurisdiction over him on account of the pendency of his divorce action in Sedgwick county, which it is claimed was filed prior to the separate maintenance action.
After hearing the evidence concerning the filing of the actions and issuance of summons in each, together with evidence as to the needs of the wife and minor child and the ability of the husband to comply with the order previously made, the court found the husband guilty of contempt on account of his failure to comply with such order and fined him the sum of $25, together with the costs of the proceeding, ordered that he should stand committed until the fine and costs be paid, and taxed the sum of $50 for the wife’s attorney fee as part of the costs.
Execution of this order, pending final disposition of the matter on appeal, was stayed upon the giving of a bond in the amount of $300.
In his appeal the husband alleges nine specifications of error, but in substance it may be stated his contentions are that on account of the pendency of his divorce action in Sedgwick county the court had no jurisdiction over him in the contempt proceeding and that it was error to find him guilty of contempt and to impose the sentence that it did, including the order for payment of $50 for his wife’s attorney fee.
We thus have this situation:
The wife filed an action for separate maintenance in Kingman county, and on the same day her husband brought an action for divorce in Sedgwick county. Service of summons was had in each action. Subsequently the court, in the separate maintenance action, made an order for temporary support and attorney fees. The husband failed to comply wifh the order and was cited for contempt. On the hearing thereof the husband was found guilty of contempt, was fined $25 and costs, ordered to stand committed until such fine and costs be paid, and was ordered to pay $50 for the wife’s attorney fees. From the record it appears the foregoing is the extent of proceedings in the separate maintenance action, and it does not appear there have been any further proceedings in the divorce action in Sedgwick county beyond the filing of the husband’s petition and the issuance and service of summons.
The question therefore boils down to this — Did the court in King-man county have jurisdiction over the husband in the contempt proceeding, and, if so, did it commit error in rendering the judgment that it did?
At the time of rendering judgment the trial court dictated into the record certain findings. Among other things, the court found that the wife filed her petition and caused a summons to be issued prior to the time the husband filed his divorce action and caused a summons to be issued thereon in Sedgwick county. The court also was of the opinion that irrespective of priority in filing and the issuance of summons in the two cases it had jurisdiction over the husband in the contempt proceeding for the reason that the suit for separate maintenance and the suit for divorce were separate and distinct actions.
In our opinion it is unnecessary to take up and discuss the question of priority in the filing of these two actions, and neither is it necessary to refer to the statutes (G. S. 1949, 60-301 and 60-308) relating to the commencement of actions and the authorities relied upon by appellant husband for the reason that here we are dealing with two separate and distinct actions. G. S. 1949, 60-1516, provides that a wife may obtain alimony from the husband without a divorce, in an action brought for that purpose, for any of the causes for which a divorce may be granted. Here the wife filed such an action in Kingman county and through service of summons that court obtained jurisdiction over the husband. Under the pleadings as filed she could not have obtained a divorce from him in that action. His action against her, filed in Sedgwick county, was to secure a divorce. Neither action had gone to final judgment, and certainly under such stage of the proceedings the pendency of his suit for a divorce in Sedgwick county did not operate as a bar to the enforcement of the order for temporary support and maintenance of the wife and child in the separate maintenance action in King-man county. Our statutory sanction of such a proceeding is in line with the general rule as stated in 27 Am. Jur., Husband and Wife, § 402, pp. 9 and 10:
“. . . According to the great weight of authority in this country, however, especially according to the more recent decisions, a court of equity is regarded as having inherent jurisdiction to entertain, independent of any suit for divorce or separation . . ., a suit by a wife for alimony, support, maintenance, or separate maintenance . . .
“The mere fact that statutory provision has been made for awarding alimony when divorces are granted does not exclude, by implication, any jurisdiction the courts may have had to enforce the fulfilment of that obligation in an action independent of a proceeding for a divorce; for it cannot be presumed that the legislature, while carefully providing for the continuance of the obligation of maintenance after divorce, intended thereby to cut off any jurisdiction which might be in the courts to enforce that obligation while the bonds of matrimony still existed.”
Under the circumstances here existing we do not have the question of conflicting jurisdiction between two courts over identical persons and identical subject matter, and neither are we concerned with the rule announced in Calkins v. Calkins, 155 Kan. 43, 122 P. 2d 750, and Zellner v. Zellner, 155 Kan. 530, 127 P. 2d 428, to the effect that a divorce decree is a final adjudication of all property rights, including alimony, between the parties. That rule has no application to the facts before us for the simple reason there has been no adjudication whatsoever in the divorce action. We will not labor the matter further, but hold that the court had jurisdiction over the husband in the contempt proceeding instituted in the separate maintenance action.
G. S. 1949, 60-1507, provides that after a petition has been filed in an action for divorce and alimony, or for alimony alone, the court may make an order, and enforce the same by attachment, for the support of the wife and children during the pendency of the action, and may also make an order relative to the expenses of the suit as will insure to the wife an efficient preparation of her case. The court made such an order on June 20th. The husband failed to comply with it. In the contempt proceeding the court found the husband was financially able to have complied with the order and therefore found him guilty of contempt. It is argued the husband’s failure and refusal to comply did not constitute a “willful and contumacious” disobedience on account of the fact his reason for failure to do so was his contention that the court had no jurisdiction over him because of the pendency of his divorce action in Sedgwick county. Re that as it may, such ground and refusal to comply with the order, at least so far as the facts of this case are concerned, should not constitute a valid defense. To hold otherwise would merely bring about a complete breakdown in the administration of justice in wife and child support cases. We hold the court did not err in finding the husband guilty of contempt.
The only other question remaining concerns the propriety of the order allowing attorney fees in the amount of $50. The statute (60-1507, supra) empowers the court to make such orders relative to the expenses of the suit as will insure to the wife an efficient preparation of her case. This, of course, would include the matter of her attorney fees. Such provision would be of little benefit to the wife if it be held not to include her right to attorney fees in the enforcement of an order made by the court pursuant to that very section of the statutes. In other words, an order made by a court for temporary support and maintenance would be a naked order if a wife, due to her financial condition, were unable to enforce it. The court did not err in assessing her attorney fees as a part of the costs.
We have given careful consideration to all contentions advanced by appellant but find no error in this record. The judgment of the lower court is therefore affirmed. | [
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The opinion of the court was delivered by
Fromme, J.:
Defendant appeals from convictions of the crimes of aggravated robbery (K.S.A. 21-3427) and felony possession of a firearm (K.S.A. 21-4204). The sufficiency of the evidence to sustain these convictions is being questioned.
On the night of May 29, 1975, Clifford Koester was alone in his liquor store when a man with a handgun entered and demanded the money in the cash register. Mr. Koester put approximately $136.00 in a brown paper bag, the special size used for quart whiskey bottles. Among the bills were one ten dollar bill, one five dollar bill and a one dollar bill, all previously marked by a long red mark in the white margin. The serial numbers of these bills had been recorded.
After the man departed with the money Mr. Koester called the police. When they arrived he gave them a description of the man and of the property taken. A patrolman on duty, Steve Trainer, received a report of the robbery at 9:50. At 9:51 he noticed the vehicle defendant was driving. The defendant’s vehicle turned south behind the officer’s marked car. The car then turned west. This aroused the officer’s suspicions and he turned west at the next street then doubled back north one block. At this point he saw defendant’s car pass in front of him. He fell in behind it, heading west. Officer Trainer noticed that the four occupants of the car were acting in a suspicious manner, moving around in the car. He turned on his red light and siren. The defendant drove on and ignored the siren. A chase ensued at speeds up to 60 m.p.h. The vehicle finally stopped in a driveway and the doors swung open. Officer Trainer arrived and advised the occupants to get out of the car. He placed the men across the hood in a “frisk” position and called for a backup. At that point one of the men, Mather L. Davison, fled on foot. He was later apprehended.
The officer saw a semi-automatic pistol on the floorboard under the driver’s seat. A revolver was lying on the front passenger’s seat. A brown paper sack with money was seen on the floorboard on the passenger’s side. Officer Salmans took the defendant into custody and confiscated seven .22 caliber shells from the defendant’s pocket.
Katchis, a detective with the Wichita Police Department, testified at the trial that he processed the vehicle at the location at 10:14 p.m. He took a semi-automatic pistol and clip from the floorboard on the driver’s side. A revolver was taken from the front seat on the passenger’s side. He removed the paper sack and its contents. The three marked bills whose serial numbers had been recorded were in the sack.
Defendant Johnson and his co-defendant, Davison, were not identified by Mr. Koester in a line-up. Defendants neither testified nor presented evidence at the trial. Davison was acquitted. Johnson was convicted and has appealed.
We have reviewed the evidence under the rules governing appellate review as set forth in State v. Soverns, 215 Kan. 775, 529 P.2d 181, and State v. Duncan, 221 Kan. 714, 562 P.2d 84, and it was sufficient to withstand a motion for acquittal and a motion for directed verdict. There was sufficient evidence to allow the charges to go to the jury. Circumstantial evidence can sustain a conviction of even the gravest offense. See State v. Johnson, 220 Kan. 720, 556 P.2d 168, and cases cited therein. Here there was appellant’s presence in the area, flight, and his possession and control of the car in which the sack, marked money and guns were found.
Appellant next contends his motion to suppress the sack, money and guns was improperly overruled in that the search and seizure were not based upon probable cause.
If the findings of the trial court on a motion to suppress evidence are based upon substantial evidence this court on review will not substitute its view of the evidence for that of the trial court. (State v. Youngblood, 220 Kan. 782, Syl. 2, 556 P.2d 195.)
As to probable cause — Officer Trainer received a report of the robbery while in the area; shortly thereafter he viewed the evasive action of the defendant; he saw the suspicious actions of the occupants of the car; and when his red light and siren were activated a chase ensued. When the car was stopped one of the occupants, Davison, fled on foot. The doors of the car were open. By use of a flashlight the officer saw the two guns and the paper sack associated with the liquor store robbery. These were in plain view. The officer had a right to stop the car under the circumstances known to him at the time, and the objects which he reasonably associated with the liquor store robbery were in plain view and could be seized. See State v. Frizzell, 207 Kan. 393, 398, 485 P.2d 160, and State v. Karney, 208 Kan. 677, Syl. 6, 494 P.2d 1204. Probable cause to justify a search and seizure is defined in State v. Morin, 217 Kan. 646, Syl. 1, 538 P.2d 684. Exigent circumstances were present under the guidelines of State v. Hays, 221 Kan. 126, 557 P.2d 1275, and Chambers v. Maroney, 399 U.S. 42, 26 L.Ed.2d 419, 90 S.Ct. 1975, reh. den. 400 U.S. 856, 27 L.Ed.2d 94, 91 S.Ct. 23.
The next point raised by defendant is that the forms of the verdicts were not neutral in character and therefore prejudiced the accused’s rights. The verdict forms read:
“We, the Jury, impaneled and sworn in the above entitled case, do upon our oaths find:
“(1) The defendant Johnson_guilty of Aggravated Robbery as charged in Count One of the Information.
“(2) The defendant Johnson_guilty of Unlawful Possession of a Firearm as charged in Count Two of the Information.”
Under each verdict form was a signature line on which the foreman of the jury signed his name.
The jury was instructed to write “not” on the blank if they found him not guilty of the charge and to leave it blank if they found him guilty. Defense counsel did not see the verdict forms before they were presented to the jury but he objected to the forms immediately after the jury retired. The objection was overruled. Appellant cites no law to support his argument but contends a finding of not guilty in this case required an affirmative act by the jury which prejudiced the appellant’s rights. He further argues the appellant was thereby denied a presumption of innocence and points out that PIK (Criminal) 68.08 provides separate options for the jury. The verdict forms did not follow those recommended in PIK (Criminal) at 68.08.
A similar contention was rejected in Hodison v. Rogers, 137 Kan. 950, 22 P.2d 491, 88 A.L.R. 1080, where the court found no prejudice resulted. At least three other courts have rejected this argument on the exact type of verdict form used here. (Hines v. United States, 131 F.2d 971 [10th Cir. 1942]; McKenna v. United States, 232 F.2d 431 [8th Cir. 1956]; Jackson v. State, 237 Ga. 663, 229 S.E.2d 345 [1976].) The reason for rejecting the argument is that if the trial judge instructs the jury on the presumption of innocence, the burden of proof and the use of the forms the jury will not be misled.
It cannot be presumed the present jury lacked sufficient intelligence to enter “not” in the blanks appearing in the verdict forms. The court did instruct on the presumption of innocence and burden of proof, and it clearly instructed the jury as to the use of the forms. In the case of the codefendant the jury inserted the word “not” in the blank and Davison was found not guilty. This clearly indicates that the jury understood how to use the forms of verdict furnished by the court. We find no error in the use of these particular forms but recommend the forms suggested in PIK (Criminal) 68.08 be used to forestall similar arguments in the future.
The foregoing discussion disposes of all points briefed and argued on appellant’s conviction of the crime of aggravated robbery. The judgment and the sentence of fifteen years to life entered thereon are affirmed.
We turn now to the points bearing upon appellant’s conviction of felony possession of a firearm (K.S.A. 21-4204). The argument on these points is directed toward an amendment of the information. Amendment was permitted after defendant’s closing argument but before the jury began deliberations.
As previously mentioned appellant was in possession of and was driving the car. The arresting officer discovered two handguns in the car. One was a .32 caliber revolver lying on the front passenger seat from which another person had exited. The other was a .22 caliber semi-automatic pistol lying on the floorboard under the seat occupied by appellant. When appellant was searched the officer found a quantity of .22 caliber ammunition in appellant’s pocket.
In the original information the appellant was charged with possession of “a small caliber revolver”. In the closing argument appellant contended that since the small caliber revolver was found on the passenger’s seat occupied by another person, and since the .22 caliber ammunition taken from his pocket did not fit the revolver, the evidence introduced by the state failed to establish his possession of the .32 caliber revolver. He further pointed out that the other handgun found in the car was not a revolver. It was a semi-automatic pistol and under the information he was not charged with and could not be found guilty of possession of that handgun.
After this closing argument the state moved to amend the charge to cover possession of “a small caliber pistol”. Permission to amend was granted. The amendment was made over the strenuous objection of the appellant because of prejudice claimed. He argued below and here on appeal that he was stripped of his defense because he had defended against possession of the .32 caliber revolver; and he waived preliminary hearing on the charge and made certain elections during trial on the premise that he was charged with and must defend against possession of the revolver. One such election was a waiver of cross-examination of the officer who removed the .22 caliber bullets from his pocket. He states it was readily apparent to the jury without cross-examination that the .22 caliber bullets found in his pocket were not connected with possession of the .32 caliber revolver. However, after the amendment was permitted appellant’s defense to the original charge was destroyed. He further states that the amendment had the effect of permitting the jury to find him guilty of possession of either or both guns.
The statute states:
“(4) The court may permit a complaint or information to be amended at any time before verdict or finding if no additional or different crime is charged and if substantial rights of the defendant are not prejudiced.” (K.S.A. 22-3201[4].)
The state argues that no additional or different crime was charged by reason of the amendment. We agree. However, this is not the sole consideration expressed in the statute. In permitting an amendment of an information under K.S.A. 22-3201(4) it is also necessary that the substantial rights of the defendant be not prejudiced.
This court has approved the action of a trial court permitting an amendment to an information even after the case has gone to the jury but before a verdict. See State v. Hill, 211 Kan. 239, 505 P.2d 704. An amendment to accord with the evidence presented has also been held proper. See State v. Lamb, 215 Kan. 795, 530 P.2d 20. A factor to be considered, bearing upon prejudice to the substantial rights of the defendant, is whether the amendment came as a surprise to the defendant. (State v. Hill, supra.) Other cases permitting amendment are: State v. Rives, 220 Kan. 141, 551 P.2d 788, where an amendment of the charge of taking property “from the person of” was changed to taking property “from the presence of”; and State v. Ferguson, 221 Kan. 103, 558 P.2d 1092, where an amendment changing the date the crime was alleged to have been committed was held proper. The date in such case was not critical because an alibi defense was not raised.
In State v. Osburn, 216 Kan. 638, 533 P.2d 1229, the court says:
“The decisions of this court support the rule that prior to the commencement of the trial the prosecutor should be given a wide discretion in amending the original information. . . . Our cases distinguish between amendments before trial and those which are made during the course of the trial. (State v. Eye, 161 Kan. 69, 166 P.2d 572.) In permitting the state to amend an information the courts have been careful to protect the rights of the defendant so that his defense will not be prejudiced by the amendment. . . .” (p. 641.)
As a general rule unnecessary allegations in an information, such as the caliber of a pistol used in a robbery, are surplusage and failure to prove the caliber of a pistol does not constitute a fatal defect. See State v. Lee, 197 Kan. 463, Syl. 4, 419 P.2d 927, cert. den. 386 U.S. 925, 17 L.Ed.2d 797, 87 S.Ct. 900, reh. den. 386 U.S. 978, 18 L.Ed.2d 142, 87 S.Ct. 1170. However, in the present case appellant was charged with possession of a particular handgun and there were two different handguns in the car he was driving. In this case the particular description of the gun and its location became important to the defense.
After reviewing the cases, examining the factors to be considered in determining whether prejudice resulted and considering the posture of the case when the amendment was permitted we hold the substantial rights of the defendant to make his defense were prejudiced.
Accordingly the judgment and sentence of appellant on the charge of felony possession of a firearm under K.S.A. 21-4204 are reversed and the case is remanded for a new trial on said charge. The judgment and sentence of appellant on the charge of aggravated robbery under K.S.A. 21-3427 are affirmed. | [
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The opinion of the court was delivered by
Schroeder, C.J.:
This is an appeal from a jury verdict which found Elgit Clark (defendant-appellant) guilty of one count of felony theft (K.S.A. 21-3701) and one count of burglary (K.S.A. 21-3715).
The issue raised on appeal is whether a state prosecutor may impeach a defendant’s alibi defense, told for the first time at trial, by cross-examining him as to his post-arrest silence after receiving the Miranda warning and commenting on such silence during closing argument, when the defendant carried on limited discussion with police after arrest, but was silent as to matters subsequently asserted at trial.
The Westco Jewelry Store in Independence, Kansas, was burglarized at approximately 11:30 p.m. on June 18, 1975. The burglars entered through a skylight in the roof of the building and carried away $5,000 worth of jewelry. There were no witnesses to the burglary other than the participants.
Approximately one week later Jake Osborn, a sixteen-year-old boy, was arrested for stealing money from the purse of a Mrs. Caldwell. Jake was a friend of Mrs. Caldwell’s son, Greg, and was living with the Caldwells at the time. During the course of his interrogation by Captain Stan Burns of the Independence Police Department, Jake Osborn confessed his involvement in the Westco burglary. He also named the appellant, Elgit Clark, as one of his accomplices to the crime.
Briefly summarized, at trial the verdict of the jury was based primarily upon Jake Osborn’s testimony, and his credibility was seriously attacked by appellant’s counsel.
The appellant testified in his own behalf. His defense was alibi. The appellant told of his whereabouts from 10:00 p.m. on the evening of the crime to 3:00 a.m. the next morning. He denied participating in the crime, but he admitted knowledge of the circumstances surrounding it. He identified eleven persons by name who were with him at various times during the evening. Five of those persons were called as witnesses for the appellant, one was called for the state and five of the witnesses failed to appear.
The jury returned a verdict of guilty. The appellant’s motion for a new trial was denied and his appeal was duly perfected.
The appellant contends the prosecutor’s cross-examination of him, wherein it was elicited he had not told police about his alibi witnesses at the time of his arrest, constituted prejudicial error. This testimony is set out verbatim in the record as follows:
“Q. Were you asked that night, the night you were arrested, about where you were?
“A. Where I was on what night?
“Q. 18th. The same night you have just testified where you had been.
“A. I can’t remember whether I was asked that or not.
“Q. Did you tell the police where you had been that night?
“A. If they asked me I told them.
“Q. You did? Are you sure of that?
“A. No, I am not. I can’t remember what I said. I can’t remember what I said.
“Q. You didn’t tell them where you had been that night, did you? This is the first time you have ever told this story, isn’t it?
“A. Yeah, yeah, first time I ever told you any story.
“Q. That is not true. You were asked about where you were on the 18th, the night you were arrested.
“A. What did I say?
“Q. I am asking you.
“A. I don’t remember saying anything.”
Additionally, the appellant predicates error upon reference to his pretrial silence, made over objection, during the state’s closing argument:
. . Another thing I think is an important thing to remember as far as Elgit Clark is concerned. He was arrested 10 days after this happened. Stan Burns testified about what happened, testified that he was there. Where were all those people that could verify where Elgit Clark was then? He remembers them all now. He subpoenaed them all here to court, but 10 days after this happened he didn’t name one. Now, is that the act of an innocent man? This is the first time we have heard this story. Ten days after this happened — almost four months ago — he had the opportunity. We could have found the people 10 days afterwards. We can’t now.”
When an accused elects to testify in his own behalf, his post-arrest silence may not be used solely to impeach his exculpatory testimony. This rule was established in Doyle v. Ohio, 426 U.S. 610, 49 L.Ed.2d 91, 96 S.Ct. 2240, where the court states:
“. • • [T]he use for impeachment purposes of petitioners’ silence, at the time of arrest and after receiving Miranda warnings, violated the Due Process Clause of the Fourteenth Amendment. . . .” (p. 619.)
The substance of the holding is that a state prosecutor may not seek to impeach a defendant’s exculpatory story, which is told for the first time at trial, by cross-examining the defendant about his failure to have told the story after receiving Miranda warnings at the time of his arrest, and that use óf a defendant’s post-arrest silence in such manner violates due process.
This rule was followed in State v. Mims, 220 Kan. 726, 556 P.2d 387, and State v. Heath, 222 Kan. 50, 563 P.2d 418. These cases both involved the use for impeachment purposes of the accused’s failure to name his alibi witnesses at the time of arrest. (We note the prosecution did not have the benefit of these cases at the time appellant was tried.) In the Mims opinion overwhelming evidence of guilt permitted us to apply the harmless error rule. In the Heath opinion, on the other hand, the conviction was reversed and the case remanded for a new trial where there was no testimony indicating the defendant’s actual participation in the burglary other than his presence as an aider and abettor. In the present case, the appellant testified about his conversation with the police. The record provides:
“Q. What did you tell them at that time?
“A. Well, I told them I didn’t know nothing about it, about how it was supposed to have been did but I had heard who went in there. I had heard — had heard who went in there and I guess that is about all. I had heard a lot about it, you know, and I told them what I heard, told them, like the people around there, you know. I can find out a lot of things, because — well,—
“Q. I just want to know what your conversation with Stan Burns was.
“A. I can’t remember exactly what they said. All I know they tried to accuse me of it and I told him I didn’t do it and I didn’t have anything to do with it.
“Q. You told him at that time?
“A. Right.”
While the Doyle opinion effectively closed the door on the use of an accused’s silence after Miranda warnings to impeach an exculpatory explanation subsequently offered at trial, the extent to which an accused can “talk” and still assert the silence requirement remains open. Our review has failed to find a single case dealing specifically with the issue whether a defendant’s pretrial silence may be used for impeachment after Doyle when the defendant engages in some discussion after arrest, but he fails to expressly assert his right to remain silent.
In People v. Robinson, 44 Ill. App. 3d 447, 448, 358 N.E.2d 43 (1976), the defendant was apprehended with a gun in his hand. He admitted to the police he shot the victim, but he asserted his privilege to remain silent stating, “I know my rights, I did it, but I’m not going to tell you why.” In closing argument, reference was made to the fact the defendant did not tell the police he acted in self-defense. The court states:
“. . . [A] person under arrest does not have to refrain from saying anything in order to preserve his fifth amendment rights. It is his privilege to stop at any point during custodial interrogation to assert his rights. . . .” (p. 449.)
The court leaves open the question when a defendant does not remain completely silent and fails to expressly assert his privilege to remain silent, whether his failure to offer any exculpatory information to the police may be used for impeachment after Doyle.
Although factually similar to the case at hand, People v. Patterson, 44 Ill. App. 3d 894, 358 N.E.2d 1164 (1976), is decided on evidentiary grounds. During rebuttal argument, counsel for the state implied defendant’s alibi had been recently fabricated and said:
“ ‘Well, the police cannot check an alibi, when he never tells them about it for over three years. * ° ° Do you wait for over three years and then spring it during the middle of trial, and then turn around and have the gall to say why didn’t the police check it in March [when defendant was arrested]? He [sic] reason they didn’t check it in March was because he didn’t tell them about it in March.’ ” (p. 896.)
The court reversed the defendant’s conviction of armed robbery because the comment went outside the evidence and states:
. . We do not reach or consider the possible significance on constitutional grounds of the use for impeachment purposes of defendant’s failure to assert his alibi after his arrest or at the preliminary hearing. . . . Whether such evidence would be constitutionally permissible on retrial of this case depends in part on several facts, not present here, such as the substance of defendant’s conversations with the police and whether Miranda warnings had actually been given. . . .” (p. 898.)
See also United States v. Harp, 536 F.2d 601 (5th Cir. 1976) and People v. Monaghan, 40 Ill. App. 3d 322, 352 N.E.2d 295 (1976).
Is the defendant here under a duty to volunteer his exculpatory story? We think not.
The case of State v. Deatore, 70 N.J. 100, 358 A.2d 163 (1976), arose while the Doyle decision was pending. There, the defendant was silent, and he failed to voice any exculpatory information to the police at or about the time of his arrest. On direct examination, he testified he was elsewhere from the crime at the time of the alleged offense. On cross-examination, he was asked if he had made any statements to such effect when he was arrested or later when he learned of specific charges. To this he replied he only remembered asking for a receipt for his money, which was taken by the police, and he denied he told the police he had nothing to say. The interrogation concluded with the prosecutor asking whether it was true he had refused to make any statement. His answer was, “Nobody asked me.” The court concludes:
“. . • [I]t is impermissible to penalize an individual for exercising his Fifth Amendment privilege when he is under police custodial interrogation. . . .
“. . • (Under this view, it is certainly an a fortiori situation when a defendant, like Deatore, was not subject to police interrogation, but his exculpatory trial testimony is sought to be impeached by his failure to volunteer that story when arrested.) . . .” (p. 110.)
The court reversed the defendant’s robbery conviction holding it is error to permit a defendant who asserts an alibi defense at trial to be cross-examined on his failure to inform the police of his alibi at the time of arrest.
Similarly, in People v. Suggs, 50 Ill. App. 3d 778, 365 N.E.2d 1118, 1120 (1977), the defendant testified he did not tell the police about what happened after the crime because they did not ask him. During rebuttal argument, the comment was made, “The
State had no way of knowing-what he was going to testify to because he hasn’t told anybody. He hadn’t told the police.” Following Doyle v. Ohio, supra, the court said:
“. . . On close examination of the entire record, we are unable to conclude that defendant’s conviction was not a product of the repeated and accentuated evidence of his failure to tell his exculpatory story to the police.
“As the Supreme Court observed in United States v. Hale (1976), 422 U.S. 171, 180, 95 S.Ct. 2133, 45 L.Ed.2d 99: ‘Not only is evidence of silence at the time of arrest generally not very probative of a defendant’s credibility, but it also has a significant potential for prejudice. The danger is that the jury is likely to assign much more weight to the defendant’s previous silence than is warranted.’ ” (p. 1121.)
In the case before us, the appellant testified at his trial he could not remember whether he was asked about his whereabouts and what he said. Further, during his closing argument, the prosecutor improperly commented about the appellant’s failure to volunteer the names of his witnesses. The record .indicates the following objection was made:
“MR. LIEBERT: Your Honor, we object to his comment since there is nothing in the evidence that this man was ever given the opportunity and there is no evidence on that.
“MR. THOMPSON: There certainly is, Your Honor. Stan Burns was asked about their conversation and asked about the people that this defendant named and he testified about that.
“THE COURT: This is correct, proceed.”
We have examined the record and the testimony of Stan Burns and find this witness never was asked about alibi witnesses, nor did he comment about them. Thus, the trial court’s comment was highly prejudicial to the appellant.
Finally, we note this case does not fall within any of the narrow exceptions to the Doyle rule. (See Doyle v. Ohio, supra, n.11, [when the defendant testifies to an exculpatory version of events and claims to have told the police the same version on arrest, defendant’s earlier silence could be used to challenge his testimony as to his behavior following arrest]; United States v. Griffin, 530 F.2d 101 [5th Cir. 1976], [when the defendant’s testimony creates the misleading impression the prosecutor had been previously informed of the defense and he either failed to investigate the story or suppressed the results of investigation, the prosecutor was permitted to question as to silence]; United States v. Fairchild, 505 F.2d 1378 [5th Cir. 1975], [when the defendant attempts to create the impression he cooperated with the police following arrest, rebuttal testimony he remained silent is permissible]; and Neal v. State, 529 P.2d 526 [Okla. 1974], [when the defendant declares, on direct examination, his reasons for remaining silent at arrest, the prosecutor may cross-examine him on those reasons and comment upon the fact he so testified.])
An accused may remain completely silent, and he is under no duty to volunteer his exculpatory story. Thus, he should be afforded the same right after some discussion with the police when he remains silent as to matters later asserted at trial. We hold Doyle prohibits a state prosecutor from impeaching a defendant’s alibi defense told for the first time at trial, when the defendant carried on limited discussion with police after arrest, but remained silent as to matters subsequently asserted at his trial.
We are mindful of the argument that such a rule may give rise to perjury. However, the need to protect the innocent person accused of crime, who remains silent when accused of guilt, far outweighs any need to guard against the mere possibility of perjury.
We have carefully reviewed the other points asserted on appeal and find no reversible error as to them.
The judgment is reversed and the case is remanded for a new trial. | [
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The opinion of the court was delivered by
Owsley, J.:
Defendants Richard Branch III and Eugene Bussey were convicted by a jury of two counts of aggravated robbery (K.S.A. 21-3427), conspiracy to commit robbery (K.S.A. 21-3302), and felony murder (K.S.A. 21-3401). Defendants appeal from these convictions, raising common issues.
On June 30, 1975, defendant Bussey and two other persons went to an apartment in Lenexa, Kansas. There they met Joel Bruner, a known drug dealer, to discuss the purchase of a quantity of marijuana. Bruner told them that later in the day he would have a supply which he would sell to them. After leaving the apartment the three decided it would be more profitable for them to rob Bruner of his marijuana than to pay for it and they met that evening to formulate a plan. It was then that defendant Branch joined the group. After the meeting the four drove to another residence and one of the men borrowed a shotgun. They then drove to Bruner’s apartment.
Branch and Bussey entered the apartment to conclude the deal with Bruner. Their partner, Byers, remained in the hallway outside the apartment, armed with the shotgun. After five or ten minutes Byers knocked on the door. When Eugene Pearcy, a visitor at the apartment, opened the door Byers forced his way in and announced the holdup. Branch and Bussey stood up and each drew a handgun. Byers went to the rear of the apartment and found Stark Nelson, another resident. At this time the two men in the back room heard a scuffle and a gunshot from the living room. They returned to the living room and saw Bruner lying on the floor.
Apparently, Branch made advances toward Bruner’s girlfriend, Jana Cox, while he and Bussey were tying their victims. Bruner took offense to the acts and a struggle ensued. Bussey shot Bruner, resulting in his death.
After all the occupants had been forced to the floor, Branch and Bussey seized the marijuana and robbed Bruner, Nelson, and Pearcy’s roommate, Liebert Hudson, of their billfolds. The loot and drugs were later split among the four participants in the robbery.
The first point on appeal concerns the trial court’s instruction that the jury must find that “Richard Branch, III and/or Eugene Bussey killed Joel A. Bruner.” Under the state’s theory of the case the instruction was correct. Although it appears the killing was done by Bussey, the state established a conspiracy to commit robbery and in the execution of the plot Bruner was killed. Each member of the conspiracy was equally responsible for Bruner’s death if the murder was committed during the perpetration of the robbery. (State v. Turner, 193 Kan. 189, 392 P.2d 863; State v. Roselli, 109 Kan. 33, 198 Pac. 195.)
Defendants argue they cannot be found guilty of murder because the killing was accidental. Assuming so, defendants are still guilty of first degree murder. To apply the felony murder rule, it is only necessary to establish that defendants committed a felony inherently dangerous to human life and that the killing took place during the commission of the felony. (State v. Guebara, 220 Kan. 520, 523, 553 P.2d 296; State v. Goodseal, 220 Kan. 487, 553 P.2d 279.) A requirement of the felony murder rule is the fact the participants in the felony could reasonably foresee or expect that a life might be taken in the perpetration of such felony. If applied to the facts of the present case, defendants are subject to the felony murder rule and it makes no difference that the killing was accidental.
A felon’s attempt to commit a robbery sets in motion a chain of events which should cause him to contemplate that a death might occur. This is particularly true of a robber who carries a deadly weapon (as these robbers did) and forces his way into an occupied dwelling. The impulse for an individual to resist the sudden show of force, to defend himself or to come to the aid of a family member or loved one, is a basic human instinct. Under such circumstances every robber who expects human opposition to his quest to steal, as he must when he commits a statutory robbery, is a potential assassin because he knows he may be forced to use his weapon either to carry out his criminal act or to escape without being pursued and captured by his victim. In a felony inherently dangerous to life the intent to accomplish the initial felony is transformed into malice and premeditation upon the death of a human being and the felon is guilty of first degree murder. Despite defendants’ argument that the result is harsh, it is one which society imposes upon those who commit such crimes knowing full well the possible tragic results.
This court has upheld convictions of defendants when they did not perpetrate the murder for which they were convicted but participated in the felony used to invoke the felony murder rule. In State v. Roselli, supra, the defendant was found guilty of murder in the first degree when the killing was committed by another in the course of a robbery. The court stated:
“. . . Robbery is a crime of violence used or threatened. It is a matter of common knowledge, derived from human experience, that a display of personal violence to accomplish robbery normally tends to the taking of life, . . .” (p. 40.)
In State v. Boone, 124 Kan. 208, 257 Pac. 739 (burglary), it was said:
“. . . The evidence that the companions of the appellant took guns with them tended to prove that they intended to kill if it became necessary in order to accomplish their design or to effect their escape. . . .” (p. 211.)
We conclude that any participant in a life-endangering felony is guilty of first degree murder when a life is taken in the course of committing or attempting to commit the felony, whether the death was intentional or accidental, or whether the participant directly caused it to occur. (See, State v. Bey, 217 Kan. 251, 535 P.2d 881; State v. Turner, supra; State v. Bundy, 147 Kan. 4, 75 P.2d 236.)
Defendants’ third point on appeal concerns their request for lesser included offense instructions of first degree murder. The trial court properly declined to give such instructions. While a trial court is normally required to give a full range of instructions, such a rule does not apply when a murder is committed during the commission of a felony. (State v. Rueckert, 221 Kan. 727, 731, 561 P.2d 850; State v. Goodseal, supra at 501; State v. Reed, 214 Kan. 562, 564, 520 P.2d 1314; State v. Masqua, 210 Kan. 419, 425, 502 P.2d 728, cert. denied 411 U.S. 951, 36 L.Ed.2d 413, 93 S.Ct. 1939; State v. Zimmer, 198 Kan. 479, 426 P.2d 267, cert. denied 389 U.S. 933, 19 L.Ed.2d 286, 88 S.Ct. 298, State v. Roselli, supra at 40.) The only exception to this rule is when the evidence of the underlying felony was weak or inconclusive, but here the evidence of the robbery was overwhelming. (State v. Rueckert, supra; State v. Bradford, 219 Kan. 336, 548 P.2d 812.)
Finally, defendants contend all the robbery counts except one should have been dismissed. The basis for this contention is defendants’ belief that only one robbery was committed. They are mistaken. Since each robbery was committed upon a different person it was necessary to prove different facts for each of the charges; thus, the charges were separate and not duplicitous.' (State v. Watkins, 219 Kan. 81, 547 P.2d 810; State v. Jackson, 218 Kan. 491, 543 P.2d 901.) In In re Allison, 13 Colo. 525, 22 Pac. 820 (1889), the Colorado Supreme Court held:
“. . . Relator was not tried for robbing the stage; each of the indictments charged him with robbing a different individual passenger upon the stage. And no doubt can be entertained but that these various robberies were distinct offenses, although committed at the same place and in rapid succession. They constituted separate acts; but, even if regarded as a single act, they affected separate objects. And, ‘where one unlawful act operates on several objects, there may be several offenses committed, and so several prosecutions for the same criminal transaction, . . ” (p. 532.)
We find no error and the judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Fromme, J.:
Kim Demars, a former employee of Rickel Manufacturing Corporation, appeals from a judgment of the district court setting aside an examiner’s award in his favor in a workers’ compensation case. The award had been entered against the Kansas Workmen’s Compensation Fund for temporary total dis ability compensation at the rate of $95.20 per week, commencing December 31, 1974, and continuing until further order of the examiner. In addition medical expenses had been allowed. No review by the Kansas Workers’ Compensation Director was requested and after ten days the examiner’s award became the director’s award.
The Kansas Workmen’s Compensation Fund, formerly the second injury fund, was impleaded in the case and the examiner found that claimant’s accidental injury would not have occurred but for his pre-existing back condition. Accordingly under K.S.A. 44-567 as amended the award in its entirety was ordered paid from the workmen’s compensation fund. On appeal to the district court no issue was raised concerning the responsibility of the fund if the award was upheld.
The district court in setting aside the director’s award concluded that claimant’s disability did not result from an accidental injury or injuries while working on the job for the respondent, Rickel, but resulted solely from a physical condition present when he was employed. Claimant had a congenital back defect, dual spondylolisthesis, and a nonunion of his back which followed a fusion operation. So the question is whether the disability resulted from personal injury or injuries arising out of and in the course of his employment. The claimant contends the district court erred as a matter of law in disregarding the uncontradicted evidence which was reasonable and probable. See Anderson v. Kinsley Sand & Gravel, Inc., 221 Kan. 191, 558 P.2d 146.
At the hearing before the examiner the claimant and Dr. Roy B. Coffey, an orthopedic surgeon, were the only witnesses. Both testified on behalf of claimant. The facts are not in dispute. Kim Demars was born with a back condition referred to as “ a dual level spondylolisthesis.” While in high school he slipped and fell down a stairway. The resulting injury necessitated a back operation which was performed by Dr. Coffey. The operation was not entirely successful for the fusion did not form a solid union. However, Demars returned to school, continued running on the track squad, and had no further trouble with his back. The operation was performed in 1972.
In March, 1974, Demars was employed by Rickel Manufacturing Corporation for work requiring heavy lifting. On his job application Demars advised the company that he had a back injury in high school and had a spinal fusion. He was accepted for work and no physical examination was required by the company before his employment began. After he had worked for a month and a half in his job, which required heavy lifting, he began to experience some soreness and pain in his back. He continued work until sometime in July when he suffered a non-work-connected injury to his back while checking the pressure in his car tires. He was hospitalized and remained in traction for ten days. He recovered and was released to return to work by the end of August. From the middle of September to the end of December, 1974, his back became progressively worse. Demars testified:
“Q. Progressively, tell us what happened up through the last days you worked.
“A. Well, I would go to work and the more I would bend over and move, the more my back would start hurting. Each time I would bend over and pick something up, have any weight, I would start to raise up and it would just have kind of a catch in there and then sharp pains. Then finally it got to where I couldn’t do it at all and I went and seen Dr. Coffey beforehand and he gave me some pain pills to take while I was at work. My foreman at work knew I was taking the pain pills.
“Q. Did you tell your foreman at work what was causing you to have to take the pain pills?
“A. Yes, it was the work that I was doing, the bending over, picking up the heavy materials.”
By the end of December Dr. Coffey decided a second operation was necessary. This operation was scheduled for January 13, 1975. However, on December 31, the last day Demars was scheduled to work before the operation, he was injured when he raised up while under a machine. The blow to his back knocked him to the ground and he received a cut on his back which left a two inch scar.
The second back operation was completed on January 13. The fusion was apparently successful but because of the congenital condition of the back and its aggravation from heavy lifting Dr. Coffey released Demars for work with a 15 pound weight limitation. Rickel, the former employer, could not use Demars under that condition so he was released from his job. Dr. Coffey advised him that in the future he would be unable to work in any job where heavy lifting was required. Demars then went to Kansas City and enrolled in a vocational rehabilitation program in the field of electronics.
In Poehlman v. Leydig, 194 Kan. 649, 400 P.2d 724, it is pointed out that the risk of employing a workman with a pre-existing disability is upon the employer. This rule may be traced back through Cody v. Lewis & West Transit Mix, 186 Kan. 437, 351 P.2d 4; Johnson v. Skelly Oil Co., 181 Kan. 655, 312 P.2d 1076; and Conner v. M & M Packing Co., 166 Kan. 98, 199 P.2d 458. The facts in Cody are strikingly similar to those of our present case. Cody had what was referred to as second degree spondylolisthesis. After his first operation there was a failure of fusion. Two years later while engaged in heavy labor he tore the scar tissue which had built up around the area of the attempted fusion. The aggravation of the pre-existing condition was held to justify an award for further disability.
The risk of employing a workman with a pre-existing disability is upon the employer, and when a workman who is not in sound health is accepted for employment and a subsequent industrial injury aggravates his condition, resulting in disability, he is entitled to be fully compensated for the resultant disability. (Chinn v. Gay & Taylor, Inc., 219 Kan. 196, 202, 547 P.2d 751.)
Dr. Coffey testified as to the examinations and operations performed. In response to a hypothetical question he stated that Demars probably suffered a series of injuries while lifting heavy objects on the job which injuries aggravated his pre-existing condition and resulted in temporary total disability prior to the second operation. His present physical condition would never permit him to return to work requiring heavy lifting. Dr. Coffey explained that an increase in activity, the lifting and stooping on the job, causes “scar tissue between the irregular jagged nonunion bone and you can be worse than you ever were before.” This may increase the pain in the nonunion to the point that some day the nonunion has to be repaired. He stated: “There is no doubt that his type of job aggravated his non-union.” He testified that neither the non-work injury, received while Demars was checking his tires, nor the injury to his back from raising up under a machine materially contributed to his disabling physical condition which existed prior to his second operation.
In setting aside the examiner’s award in this case the district court said: “ . . . the Court feels that this case is governed by the decision in Boeckmann v. Goodyear Tire and Rubber Company, 210 Kan. 733.” The court concluded the claimant’s alleged injuries and disabilities did not result from personal injury by accident arising out of and in the course of his employment.
The claimant contends the court’s reliance on Boeckmann v. Goodyear Tire & Rubber Co., 210 Kan. 733, 504 P.2d 625, was misplaced. It was cited by the court as illustrating what constitutes a noncompensable disability. In Boeckmann the claimant had a history of degenerative arthritis of the hips. He underwent surgery. Three years later he noticed the pain in his right hip was becoming worse. He continued to work as a special classifier and inspector of truck and tractor tires. Six years after his surgery he began experiencing incidents of disabling back pain while at work. He was on retirement disability when his claim was heard. He was denied compensation. His doctor attributed the claimant’s work disability to the arthritic changes in his hips. The doctor was of the opinion the incidents of disabling back pain while at work did not result in any difference in the condition of his hips.
In affirming the denial of compensation in Boeckmann this court noted there was no evidence that the origin of claimant’s disability was from his work. The degenerative arthritis had been a progressive process and would have continued to get worse from everyday activity whether on or off the job. Every time the claimant bent over to tie his shoes, walked to the grocery store or got up to adjust his television set there would be an aggravation of his condition.
In our present case the claimant’s condition from the congenital back defect and the nonunion was stable prior to entering this particular job market. It was not a condition which in and of itself would degenerate or worsen without the heavy lifting. We do not believe the holding in Boeckmann is dispositive of our present case.
In Winkelman v. Boeing Airplane Co., 166 Kan. 503, 203 P.2d 171, the claimant suffered a loss of hearing while employed at an indoor pistol range. It was held that the repeated explosions of 38 caliber ammunition while in close proximity resulted in personal injury by accident which arose out of and in the course of employment. The disability resulting therefrom was held to be compensable under the Workmen’s Compensation Act. The factual situation is not the same as in our present case for in Winkelman there was an outward and discernible force or series of forces to which the resulting disability could be traced. On the question of causation the facts of our present case fall somewhere between Winkelman and Boeckmann.
It has long been the rule that injury to a worker by a strain sustained in performing the usual tasks in the usual manner may constitute an accident within the meaning of the worker’s compensation act even though there be no outward and discernible force to which the resultant disability can be traced. (See Gilliland v. Cement Co., 104 Kan. 771, 180 Pac. 793.) A disability, whether occurring as a result of a single injury or a series of similar injuries, all occurring in the course of the employment, may be compensable. (Winkelman v. Boeing Airplane Co., supra, p. 508.)
The words “accident” and “injury” are defined in K.S.A. 1977 Supp. 44-508 as follows:
“(d) ‘Accident’ means an undesigned, sudden and unexpected event or events, usually of an afflictive or unfortunate nature and often, but not necessarily, accompanied by a manifestation of force. The elements of an accident, as stated herein, are not to be construed in a strict and literal sense, but in a manner designed to effectuate the purpose of the workmen’s compensation act that the employer bear the expense of accidental injury to a worker caused by the employment.
“(e) ‘Personal injury’ or [and] ‘injury’ mean any lesion or change in the physical structure of the body, causing damage or harm thereto, so that it gives way under the stress of the worker’s usual labor. It is not essential that such lesion or change be of such character as to present external or visible signs of its existence.”
We note under the definition of accident it is not necessary that an accident be accompanied by a manifestation of force, and it may refer to a series of events. Under the workers’ compensation act any lesion in the physical structure of a worker causing harm may be a personal injury if it occurs under the stress of usual labor. It is not essential that external or visible signs of its existence be manifest.
We need not re-examine the testimony of Dr. Coffey and Kim Demars in detail. Both testified for the claimant and both testified that a series of incidents occurred affecting claimant’s physical structure and causing harm each time the worker lifted a heavy weight. The incidents were not manifested by external signs, only by internal pain. This series of lifting incidents aggravated a pre-existing condition and caused the disability which required the second operation. Aside from the erroneous answer entered inadvertently on the hospital insurance form by Dr. Coffey, which he later clarified, there is no contradicting evidence in the record.
Uncontradicted evidence which is not improbable or unreasonable cannot be disregarded by a district court in a workers’ compensation case unless it is shown to be untrustworthy; and such uncontradicted evidence should ordinarily be regarded as conclusive. See Berry v. Wondra, 173 Kan. 273, Syl. 3, 246 P.2d 282; and Anderson v. Kinsley Sand & Gravel, Inc., supra, Syl. 2.
The district court erred in the present case in disregarding the uncontradicted evidence bearing on causation which evidence was not shown to be improbable, unreasonable or untrustworthy. The court further erred in concluding that the present case was governed by the decision in Boeckmann v. Goodyear Tire & Rubber Co., supra. Therefore we conclude as a matter of law the uncontradicted evidence in this case bearing on causation required an award in favor of the claimant.
The judgment of the district court is reversed and the award of compensation as written by the examiner and statutorily adopted as the director’s award is reinstated. | [
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The opinion of the court was delivered by
Holmes, J.:
This is a direct appeal by the defendant, Forrest R. Edgington, from a jury conviction of the crime of perjury. (K.S.A. 21-3805.)
The charges were based upon testimony given by defendant on January 23, 1974, in a divorce proceeding in the Johnson County District Court. Defendant and his wife were involved in divorce litigation and one of the issues concerned the source and amount of defendant’s income. Defendant’s testimony failed to include a sum in excess of $6,000.00 received in 1973 and January, 1974, from a group known as Physicians Associated. The events preceding defendant’s perjury conviction are relevant to this appeal and are set out in some detail.
During 1973, defendant was a city councilman of Overland Park, Kansas, and on May 9, 1974, Margaret Jordan, Johnson County District Attorney, charged the defendant with a misdemeanor offense under K.S.A. 75-4302(d), which requires certain public officers and employees to file a report disclosing substantial changes in income. The state alleged that the defendant had failed to report a change in his income, specifically the income he received in 1973 from Physicians Associated. At the trial on June 18, 1974, some of the monthly checks which the defendant had received from Physicians Associated were introduced into evidence by the state. The court, at the completion of the evidence, took the case under advisement and on July 19, 1974, acquitted the defendant after finding a reasonable doubt as to defendant’s intent.
During the period of the investigation and pendency of the misdemeanor charge, the district attorney became aware of defendant’s testimony on January 23, 1974, in the divorce proceeding. A transcript of defendant’s testimony in the divorce action was ordered and was filed with the clerk of the court on May 6, 1974, three days prior to the filing of the misdemeanor charge. On July 16, 1974, a second complaint was filed by the district attorney’s office charging the defendant with perjury. The basis of the perjury charge was the failure of the defendant to divulge the payments from Physicians Associated in his testimony in the divorce trial on January 23,1974. These payments included some of the same payments which were included in the evidence at the misdemeanor trial.
Defendant was bound over to Johnson County District Court for trial and on April 15,1975, the jury found defendant guilty as charged.
At the perjury trial, the jury heard the transcript of the entire testimony of the defendant given in the January 23,1974, divorce proceeding. This evidence was received without objection.
In the divorce action, defendant testified he had income from several sources during 1973, including the City of Overland Park, Board of County Commissioners, railroad retirement and certain other income including commissions; he operated, as a sole proprietor, a management consultant firm known as Dentco Management Company; Dentco had several clients from whom it received commissions; and he had included all such commissions in his testimony.
However, it was later determined that in addition to the clients and commission income which the defendant revealed, he had another client known as Physicians Associated, and had received from that client during 1973, and January, 1974, the sum of $6,287.71. At no point in the defendant’s testimony during the divorce proceeding was the name Physicians Associated or the income therefrom mentioned. The state’s case in the perjury action was based upon these omissions. The checks which the defendant received from Physicians Associated were introduced in evidence by the state.
The jury returned a verdict of guilty of the crime of perjury. Defendant filed a motion for a new trial specifying several trial errors and on May 30, 1975, Judge Walton filed the court’s decision overruling defendant’s motion. The defendant now appeals.
Defendant raises four principal points in his brief and argument, the first being:
“The prosecution of the defendant herein for the crime of perjury as defined by K.S.A. 21-3805 is barred for the reason that the defendant was previously prosecuted for the offense of failing to file a disclosure of substantial interest as defined by K.S.A. 75-4302, et seq., which prosecution resulted in an acquittal, and in which evidence was introduced which was also admitted in defendant’s trial for perjury, all in violation of K.S.A. 21-3108(2)(a).”
Defendant’s argument on this point appears to be that as certain physical evidence, i.e., the checks from Physicians Associated to defendant, was used in the misdemeanor trial for failing to file a disclosure of substantial interest, defendant cannot later be tried for perjury in the divorce trial if the same physical evidence, i.e., checks from Physicians Associated, is to be used in the perjury trial. Defendant bases his argument of former jeopardy on K.S.A. 21-3108(2)(a), which provides in part:
“(2) A prosecution is barred if the defendant was formerly prosecuted for a different crime ... if such former prosecution:
(a) Resulted in ... an acquittal and the subsequent prosecution is for a crime or crimes of which evidence has been admitted in the former prosecution and which might have been included as other counts in the complaint . . . filed in such former prosecution or upon which the state then might have elected to rely; or was for a crime which involves the same conduct, unless each prosecution requires proof of a fact not required in the other prosecution. . . .”
Defendant argues that because of the semicolon which divides paragraph (a) of the above quoted section, the portion of the statute which provides “unless each prosecution requires proof of a fact not required in the other prosecution” relates to crimes which involve the same conduct but cannot be construed as applying to instances where a defendant is acquitted of a previous crime and is subsequently prosecuted for a crime of which evidence has been admitted in the former prosecution.
While defendant’s grammatical analysis of the statute may be technically correct, we fail to find where it is of any solace or assistance to defendant. The intent of the legislature in its adoption of K.S.A. 21-3108 and prior case law do not support defendant’s interpretation of the statute.
In the Advisory Comment to K.S.A. 21-3108 it is noted that the Illinois Criminal Code and former K.S.A. 62-1449 formed the basis of the present statute concerning the effect of former prosecutions.
Kansas decisions under the present statute, K.S.A. 21-3108, as well as its predecessor, K.S.A. 62-1449, have held identity of offenses to be an indispensable ingredient of jeopard)'. Where one statute describing an offense requires proof of a fact which another statute does not, then one offense is not a bar to the prosecution of the other on the ground of double jeopardy. State v. Worth, 217 Kan. 393, 537 P.2d 191 (1975); State v. Pruitt, 216 Kan. 103, 531 P.2d 860 (1975); State v. Anderson, 172 Kan. 402, 241 P.2d 742 (1952).
“In criminal cases the ultimate test applied in determining the validity of a plea of former conviction or former acquittal is identity of offenses, and it is not necessarily decisive that the two offenses may have some material fact in common.” State v. Ragan, 123 Kan. 399, Syl. 2, 256 Pac. 169.
The Illinois decisions construing the Illinois statute, from which our K.S.A. 21-3108 was drawn, also support the requirement of identity of offenses before a former prosecution will operate as a bar to a subsequent prosecution:
“Before defense of former jeopardy can be sustained the offense must be the same, both in law and in fact; if offenses are distinct in law, defense of former jeopardy is not available regardless of how closely they are connected in point of fact.” People v. Thompson, 87 Ill. App. 2d 426, 429-30, 230 N.E.2d 889 (1967); People v. Garman, 411 Ill. 279, 103 N.E.2d 636 (1952); People v. Koblitz, 401 Ill. 224, 81 N.E.2d 881 (1948), cert. den. 336 U.S. 927, 93 L.Ed. 1088, 69 S.Ct. 649 (1949).
Likéwise, the United States Supreme Court has recently held that where the same act or transaction constituted a violation of two statutory provisions, the test for determining whether there were two offenses or only one, for purposes of the double jeopardy clause of the Fifth Amendment, was whether each provision required proof of a fact which the other did not. Brown v. Ohio, 432 U.S. 161, 53 L.Ed.2d 187, 97 S.Ct. 2221 (1977).
In the case under consideration, it is readily determinable that the crimes charged were separate and distinct offenses. The facts necessary to convict defendant of perjury would not necessarily have convicted him of failure to file a statement of a change of substantial interest, and vice versa. The offenses with which defendant was charged are separate and distinct.
If there is any merit to defendant’s contention, it must be based upon an interpretation of the first clause of K.S.A. 21-3108(2)('o). The defendant argues that evidence used in the perjury trial, i.e., checks, had previously been used in the misdemeanor trial and when this same evidence became the basis of the perjury trial, the perjury trial was barred by the statute. The state, on the other hand, maintains that at no point in the misdemeanor trial was evidence admitted of any other crime. Specifically, in the first trial, there was no evidence of the crime of perjury. The state did introduce facts, including physical evidence, which were common to each prosecution and which in the context of each prosecution became evidence supporting that particular offense. The checks which were introduced in the perjury trial were not evidence of perjury until the defendant’s testimony in the divorce proceeding was admitted. Similarly, in the misdemeanor trial, while the checks became evidence of a change of substantial interest, the checks were not evidence of another crime, i.e., perjury.
The defendant’s contention must fail because there simply was no evidence of the crime of perjury in the misdemeanor trial. The fact that there was some identical physical evidence used in the later trial is no bar to the subsequent prosecution. See Miller v. State, 210 Kan. 542, 502 P.2d 833 (1972); State v. Anderson, 172 Kan. 402, 409, 241 P.2d 742 (1952); State v. Bethea, 184 Kan. 432, 434, 337 P.2d 684 (1959). Acquittal on the misdemeanor offense does not result in former jeopardy as to the perjury offense.
Defendant’s■ second point on appeal is:
“The trial court committed prejudicial error in its finding following its in camera inspection of the District Attorney’s file that there was no exculpatory information contained therein and in refusing to order said file and its contents produced for the use and benefit of the defendant prior to trial.”
Prior to defendant’s trial for perjury, the defendant filed a motion requesting that the district attorney’s files be made available for inspection by defendant. This motion was opposed by the district attorney’s office. The court held an in camera inspection of the district attorney’s file and found there was nothing in said file which was in fact exculpatory.
During the preparation of the perjury case the chief investigator for the Johnson County District Attorney’s office interviewed John H. Johntz, Jr. Mr. Johntz was the attorney who had represented Mrs. Edgington in the divorce proceeding and was present diiring that trial when the questions were asked which resulted in the alleged perjurious answers by the defendant. In the report of the investigator appears the following notation:
“Mr. Johntz states that he believes a possible defense to the perjury charge would be that- Mr. Edgington did not understand the questions insofar as the income being to Dentco or to him personally, although the questions contained in the transcript of January 23, are explicit.”
As noted by the defendant in his brief, the backbone of the law which requires prosecutors to divulge exculpatory evidence is found in Brady v. Maryland, 373 U.S. 83, 10 L.Ed.2d 215, 83 S.Ct. 1194 (1963). In Brady the Supreme Court stated:
“We now hold that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” 373 U.S. at 87.
This court has stated:
“Prosecutors are under a positive duty, independent of court order, to disclose exculpatory evidence to a defendant. To justify a reversal of a conviction for failure to disclose evidence, the evidence withheld by the prosecution must be clearly and unquestionably exculpatory and the withholding of the evidence must be clearly prejudicial to-the defendant.” State v. Kelley, 216 Kan. 31, 33, 531 P.2d 60 (1975).
The evidence upon which the defendant relies is not “clearly and unquestionably exculpatory,” and there is no showing that withholding the alleged exculpatory evidence was prejudicial to the defendant. Further, as the state points out, the statement in question was not withheld but was excluded by the trial court in its in camera inspection. There has been no showing that the trial court abused its discretion or committed error in finding no exculpatory evidence in the district attorney’s file.
Defendant next contends:
“The trial court erred in submitting to the jury the Court’s Instruction No. 8 in that it was an improper, incorrect and incomplete statement of the law.”
The trial court instructed the jury that certain portions of the transcript of defendant’s testimony of January 23, 1974, were material in the perjury action.
The trial court in its written opinion adequately covered this point. Judge Walton, in his opinion, states:
“Counsel for Defendant contends that it is an issue of fact whether the testimony as set out in Instruction No. 8 was material and that the jury should have been instructed accordingly.
“In Instruction No. 8 the Court instructed the jury that the answers to questions that appear from the pages of the transcript of the proceedings before Judge Riggs were statements of material fact. In doing so the Court assumed the responsibility of making such determinations as a matter of law and did not leave the decision to the jury. At the bottom of the instruction, the Court set forth its authority on State v. Frames, 213 Kan. 113, 119, 515 P.2d 751 (1973). In that decision the Supreme Court held, and I quote:
‘The defendant’s fifth and last point is that it was error for the trial court to submit the question of materiality to the jury as a question of fact and that the trial court should have instructed the jury as a matter of law which statements made by the defendant were material. This court held in State v. Bingham, 124 Kan. 61, 257 Pac. 951, that the question of whether false testimony is material in a perjury case is to be determined as a question of law by the trial court and not as a question of fact by the jury. In our judgment it was error for the trial court here to submit the question of materiality to the jury as a question of fact. In order to constitute perjury under the statute it is essential that the false testimony be on a material matter. The false statements relied upon, however, need not bear directly on the ultimate issue to be determined; it is sufficient that they relate to collateral matters upon which evidence would have been admissible. (State v. Elder, 199 Kan. 607, 433 P.2d 462.) Here a review of the statements which the state charged were perjured discloses that they were as a matter of law material. Had the court instructed the jury it would have been obligated to rule that the statements were material. But was the trial court’s failure to instruct the jury in that regard prejudicial error? We hold that it was not. In State v. Lewis, 10 Kan. 157, the defendant had been convicted of perjury and contended on his appeal that the trial court committed error in not instructing the jury as a matter of law on the materiality of the alleged false statements. Justice Brewer recognized that it was error for the trial court not to instruct the jury on that issue but held that since the jury had determined that the statements were in fact material then defendant’s rights had not been prejudiced and his conviction of perjury should be affirmed. As in State v. Lewis, supra, the defendant’s statements here were material as a matter of law and the court should have instructed the jury that the statements were material. The jury by its verdict also determined that the statements were material; consequently the defendant has not been prejudiced by the court’s failure to instruct. The judgment of the trial court is affirmed.’
“Clearly the contention of Defendant on this issue does not have merit.”
We agree with the trial court’s opinion.
As his final point on appeal defendant alleges:
“The trial court erred in admitting into evidence oral testimony concerning the contents of a blackboard used as an exhibit in District Court Case No. 54,824 in violation of the best evidence rule, thus depriving the defendant of the right to have presented to the jury the entire contents of said exhibit, some of which may have been found favorable to the defendant, and further denying to the defendant the right to an effective cross-examination of the witness Lewis, who only testified to portions of the blackboard’s contents.”
Defendant argues that it was error for the trial court to admit as evidence the defendant’s testimony of January 23, 1974, wherein reference was made to figures on a blackboard. It is noted that the entire transcript of defendant’s testimony in the divorce proceeding was introduced in evidence and read to the jury without objection by the defendant. Additionally, this issue was not raised by the defendant in his motion for a new trial. As the evidence was neither objected to at trial nor the question raised in the motion for a new trial, it will not be considered for the first time on appeal. State v. Osbey, 213 Kan. 564, 568, 517 P.2d 141 (1973).
The judgment is affirmed. | [
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The opinion of the court was delivered by
McFarland, J.:
This is an appeal in a criminal action from a jury verdict which found Willmore Larry Bradley guilty of first degree murder (K.S.A. 21-3401) and aggravated robbery (K.S.A. 21-3427).
The defendant resided with Molleaner Miller in Hutchinson, Kansas. Molleaner Miller was shot by the defendant in their residence on the night of May 23, 1975. On the day of his death the deceased had withdrawn $1,600.00 in cash from a local bank. The body was placed in the trunk of a car by the defendant and his girl friend and dumped in rural Sedgwick County where it was found on May 25, 1975. There was no identification on the body other than a pen with a Hutchinson address. The body was identified shortly thereafter. The victim had been shot in the back of the head from a distance of more than six inches. There were no injuries to the body that indicated the man had been in a fight prior to the time he was shot. There were injuries indicating the body had been dragged after death. Deféndant and his girl friend purchased one-way air line tickets to Hawaii on May 24, 1975, as well as clothing and jewelry. All purchases were paid for in cash. The murder weapon was subsequently found in a septic tank at the Airline Motel in Wichita. The defendant and his girl friend were arrested in Hawaii in August, 1975.
The above statement of facts is not in dispute. There was no question of identity. The state contended Miller was killed while the defendant was attempting to rob him. The state presented witnesses who testified the participants had told them robbery was the motive. The defense was self-defense.
Many points of error are raised on appeal. Several of these points of error are predicated on the admission and exclusion of evidence of deceased’s character, prior activities, and past criminal acts. These points will be considered together as they are interrelated.
The first area of controversy lies in the admission into evidence in the state’s case in chief of considerable testimony from various witnesses relating to their prior knowledge of the defendant. At trial the defendant objected to this testimony on the grounds that it was not evidence of the deceased’s general reputation in the community but, rather, related to personal observations and individual incidents, and was partially remote in time. On appeal the defendant reiterates these objections as well as raising the additional objection that the state should not have been permitted to introduce evidence of deceased’s good character prior to such time as the deceased’s character was attacked by the defense. Due to certain rulings of the trial court, the defendant, in fact, never did introduce any evidence attacking the character of the deceased.
The general rule is frequently stated that the state can not show the peaceful reputation of the deceased until the character of the deceased is under attack.
“Ordinarily, evidence concerning the character of the deceased is immaterial. It is well settled that the prosecution cannot, in the first instance and as a part of its evidence in chief, or before the character of the deceased has been attacked by the defense, introduce evidence of the reputation of the deceased for peaceableness or prove that he was a quiet and orderly citizen. Until the defense attacks the character or reputation of the deceased, it cannot be shown by the prosecution, even though, according to the prevailing view, the defendant relies upon self-defense, and his evidence tends to prove that the deceased was the aggressor, although in a few states, where the defendant pleads self-defense and introduces evidence for the purpose of showing an apparently felonious assault upon him by the deceased, the prosecution may, in rebuttal, show the good character or reputation of the deceased for quiet and peace.” (40 Am. Jur. 2d, Homicide, § 308, p. 577.)
Accord, 40 C.J.S., Homicide, § 272e; 1 Wharton’s Criminal Evidence, § 236 (13th ed. 1972); Annot, 34 A.L.R.2d 451.
The state contends that the afore-enumerated general rules no longer apply in Kansas when the state is on notice that the defense will be self-defense. Much verbiage in the briefs of the parties is consumed with the question of whether or not the specific evidence admitted complied with K.S.A. 60-446 and 60-447. The first question to be resolved is whether or not evidence of the character of the deceased, whether in proper form or not, should have been admitted in the state’s case in chief. K.S.A. 60-446, -447, -448, -449, and -450 all relate to how character, custom, or habit may be proved. The state’s contention that the enactment of these statutes gives them the right to introduce such evidence in its case in chief is incorrect. In 1874 in State v. Potter, 13 Kan. 414, we said:
“On a trial for murder, it is error to permit the state in the first instance, and as a part of its case, to offer testimony showing the character or reputation of the deceased as a quiet and peaceable man.” (Syl. 1.)
The statement in Potter was a correct statement of the law of Kansas at that time and it remains a correct statement. The 1963 rules of evidence do not overrule Potter. The admission of such evidence in the state’s case in chief was error. In this case the character of the deceased was never attacked on the record. The admission of such evidence was error.
The defendant testified that he was lying on the bed with his girl friend when the deceased came into the room in an intoxicated condition. The deceased was armed and fired a shot at the defendant with the bullet striking the mattress near defendant’s head. The defendant contended that he jumped up from the bed and struggled with the defendant in an effort to turn the gun away from himself. The defendant sought to show that the motive for this unprovoked attack upon him by the deceased was that the deceased had been involved in Topeka in an assault with a gun on a Topeka police officer. Charges were brought against the deceased in connection with that incident and an additional charge was brought when the deceased failed to appear. The deceased was being sought by Shawnee County authorities in connection with this incident. The defendant was a known police informer and believed that this latter fact had been communicated to the deceased by the deceased’s nephew shortly before the incident in question. The defendant sought to establish that fear of being turned in to authorities by the defendant was the motive of the decedent for the attack.
Anticipating the strategy of the defense, the state made a motion in limine to exclude any reference in the trial to the Topeka incident and matters relating thereto. The motion was sustained. The defendant sought at trial, through a proffer of evidence, to be permitted to introduce this testimony to show character, intent, and motive on the part of the deceased. The trial court excluded this evidence as it did not show general reputation in the community or a prior conviction. The trial court considered this proffer only on the basis of character and, finding that it did not meet the criteria for establishing bad character, rejected it. On the basis of evidence of bad character, the trial court was correct in its ruling. However, it was error not to admit the evidence on the basis of intent and motive.
The state took full advantage of the situation and, in a carefully worded question, on cross-examination of the defendant asked him:
Q. “Can you tell us why for no apparent reason he would walk in and pull a gun because you told him to sit down before he fell down and start shooting at you?
A. “Could I tell you why?
Q. “Yeah.
A. “No.”
The state knew the defendant could not “tell us why” because the court had already ruled that he could not, so the answer had to be no.
The only evidence before the jury of the deceased’s character was the evidence of good character presented by the state in its case in chief. The defendant’s theory of defense as to why the attack occurred was excluded by the trial court. The defendant had a right to present his theory of defense. He had the right to introduce into evidence what he believed was the motive and intent by the deceased for what he claimed was an attack by the deceased upon his person. This was an integral part of his claim of self-defense or justifiable homicide. It is fundamental to a fair trial to allow the accused to present his version of the events so that the jury may properly weigh the evidence and reach its verdict. The right to present one’s theory of defense is absolute. The trial court improperly used the evidentiary rules of establishing character to exclude relevant and material information pertaining to the defense.
By permitting the state to introduce evidence of the deceased’s good character in its case in chief and precluding the defendant from introducing, evidence pertaining to motive and intent, the trial court piled error upon error. We have no hesitancy in finding that the defendant’s fundamental right to a fair trial was violated.
On appeal the defendant further claims error in the overruling of his motion to dismiss for lack of venue. Both the state and the defense counsel knew, prior to trial, that the evidence would show the deceased was shot and killed in Reno County and that any robbery, likewise, occurred in Reno County. The only link to Sedgwick County was that the body was taken there and left. The location of the alleged crimes was never in dispute. The trial court raised the issue of venue during trial and belatedly the defense counsel made a motion to dismiss on grounds of venue. Numerous other points of error are raised. There is no need to determine these points by virtue of the conclusions previously reached herein.
The judgment and convictions are reversed and the case is remanded for a new trial with directions that the case be transferred to Reno County. | [
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The opinion of the court was delivered by
Owsley, J.:
This is an appeal from an order dissolving a garnishment. The decision of the trial court was affirmed by the Kansas Court of Appeals. See, Walnut Valley State Bank v. Stovall, 1 Kan. App. 2d 421, 566 P.2d 33. This court granted review.
Plaintiff first contends the trial court should have dismissed the appeal from the county court to the district court. The basis of the motion to dismiss was the failure to pay the docket fee prior to the hearing of the appeal and failure to provide surety on the appeal bond.. Plaintiff also claims prejudicial error in the admission of certain evidence. Each of these points was considered by the court of appeals. The court of appeals concluded they were not grounds for reversal. We adhere to its opinion on these points.
The remaining issue is one of first impression. It involves the right and the extent of the right of a judgment creditor to garnishee a joint tenancy bank account to satisfy a judgment against one of the joint tenants. The court of appeals found such an account may be garnished by the creditor to the extent of the debtor’s equitable interest in the account.
The facts relative to this issue are as follows: Plaintiff obtained judgment against defendants Merle J. and Emma M. Stovall. Thereafter, the Stovalls were divorced and Emma married Archer B. Medlin. The Medlins established a joint checking account at the Towanda State Bank and each of them signed the bank signature card. Thereafter, and upon application of plaintiff, an order of garnishment was issued to the garnishee, which answered stating that Emma had a checking account with that bank in the amount of $411.52. Three days later, Emma moved to vacate the order of garnishment, which motion was overruled by the county court. Emma appealed to the district court, which heard the matter and entered judgment sustaining the motion to vacate and to set aside the order of garnishment, and assessed cost to plaintiff.
The trial judge issued his opinion letter to counsel, which contained his findings of fact as follows:
“I have read the citations which you gentlemen provided me and find that the garnishment of the bank account held by the Towanda State Bank in the joint account of Archer B. Medlin and Emma Maye Medlin should be set aside. From this ruling it is obvious that I do not reach the same conclusions as the author of the note in the Washburn Law Journal and frankly I was more impressed with the cases set forth at 11 A.L.R. 3, Page 1487 under the section heading of ‘Where the Funds in the Act Belong to the Husband Alone.’ I feel that this is the situation here and that the funds in said bank account are the property of Mr. Medlin and that the account was established as a joint account for the convenience of Mr. Medlin when he was on the road driving a truck. It is the Court’s recollection that it has been at least 6 months since Emma Medlin has been employed and that any loan made by the Liberty Loan Corporation of Hutchinson, Kansas was made primarily to Archer Medlin in March of 1975 and was not in fact made to Emma Medlin.”
Through statutory enactment the legislature has sought to limit the creation of joint tenancy agreements unless by clear and convincing evidence the parties to the agreement show the intent to create such an estate. (K.S.A. 58-501). A joint tenancy bank account gives any party on the account a complete power of disposal. Upon death the survivor or survivors take all, even against lawful heirs of the decedent. Financial advisers not versed in the intricacies of the law have convinced many unlearned persons that a joint tenancy agreement is the answer to estate planning. While a joint tenancy has many laudable uses, it is not a panacea. Many injustices have resulted through use of the device. Upon proper showing we have imposed constructive trusts on property in the hands of a surviving joint tenant in order to avoid unintended results. (Winsor v. Powell, 209 Kan. 292, 497 P.2d 292; Agrelius v. Mohesky, 208 Kan. 790, 494 P.2d 1095; Grubb, Administrator v. Grubb, 208 Kan. 484, 493 P.2d 189.)
We have considered the cases cited at 11 A.L.R.3d 1465 and recognize there is support for the position that none of the funds in a joint tenancy account can be garnished, as well as support for the position that all the funds can be garnished. Any argument in support of either of these positions may be eliminated by reference to K.S.A. 58-501(c):
“. . . The provisions of this act shall apply to all estates in joint tenancy in either real or personal property heretofore or hereafter created and nothing herein contained shall prevent execution, levy and sale of the interest of a judgment debtor in such estates and such sale shall constitute a severance.”
The statute specifically provides the right to levy on personal property to the extent of the “interest of a judgment debtor.” We must construe the phrase “interest of a judgment debtor.” The court of appeals has stated the phrase means the equitable interest in joint tenancy property. Its affirmance of the trial court’s decision is based on the trial court’s finding of fact that the judgment debtor had no equitable interest in the joint tenancy account. We do not believe the solution is that simple. We are concerned with the ownership of a joint tenancy bank account between two or more joint tenants and the burden of proof if such ownership is challenged. In Miller v. Miller, 222 Kan. 317, 564 P.2d 524, we considered the ownership of a joint tenancy property conveyed by a father to himself, his son, and his daughter-in-law. We said:
“The record establishes that each of the three parties — Jessie, Ima Kaye, and Richard — owned an undivided one-third interest in this tract at the time suit was commenced, and had owned such interests for almost ten years, since the recording of the deed in 1965. Jessie made a gift of one-third interest to his son and of a like interest to his daughter-in-law when the property was acquired. That Jessie paid the entire purchase price is immaterial.” (p. 321.)
The statement in Miller, “[t]hat Jessie paid the entire purchase price is immaterial,” is too broad. It would appear that when a party to a joint tenancy attempts to prove an intent to own joint tenancy property other than equally between the parties the issue of who provided the purchase price would be material. Support for this statement is found in Schierenberg v. Hodges, 221 Kan. 64, 558 P.2d 133, where we said:
“It is well established in this jurisdiction that, absent fraud, one spouse may make an inter vivos transfer of his or her own personal property to another person outright or to himself and another person in joint tenancy without contravening the statutory rights of a surviving spouse under K.S.A. 59-602. Malone v. Sullivan, 136 Kan. 193, 14 P.2d 647; In re Estate of Fast, 169 Kan. 238, 218 P.2d 184; Eastman, Administrator v. Mendrick, 218 Kan. 78, 542 P.2d 347. The plaintiff’s deceased spouse may well have lawfully transferred the funds in question; the funds may have come from her earnings, or they may have been accumulated solely by the plaintiff. Such questions have not been litigated or determined. We conclude that the court should not have sustained the motion for summary judgment.” (p. 66.)
Severance of the joint tenancy into a tenancy in common between a husband and wife gives rise to a rebuttable presumption of equal ownership; that is, the husband and wife each own one-half of the account. Such a presumption is created on the theory of donative intent. In Norcross v. 1016 Fifth Avenue Co., Inc., 123 N.J. Eq. 94, 196 A. 446 (1938), the court explained the theory in this manner:
“There seems to be abundant legal support to the inference that the opening of an account, wherein each depositor agrees that all the moneys deposited are to belong to the parties as joint tenants, is prima facie evidence of donative intent. New Jersey Title Guarantee and Trust Co. v. Archibald, 91 N.J. Eq. 82. In the last cited case, the court of errors and appeals, in part, said:
“ ‘We think that where, as here, moneys belonging originally either wholly to the mother, or in part to her and in part to her daughter, are deposited by them in a bank in their joint names, and at the same time they both sign and deliver to the bank a writing stating that ‘This account and all money to be credited to it belongs to us as joint tenants and will be the absolute property of the survivor of us; either and the survivor to draw,’ and upon the death of the mother the undrawn moneys belong to the surviving daughter.
“ ‘The contract entered into by the bank with the mother and her daughter exhibited a donative purpose from donor to donee (not one merely for use and convenience of the donor) and hence constituted a valid gift.’ Commonwealth Trust Co. v. Grobel, 93 N.J. Eq. 78; Commercial Trust Co. v. White, 99 N.J. Eq. 119; affirmed, 100 N.J. E,q. 561; Trenton Saving Fund Society v. Byrnes, 110 N.J. Eq. 617; Dover Trust Co. v. Brooks, 111 N.J. Eq. 40; McGee v. McGee, 81 N.J. Eq. 190; Rosecrans v. Rosecrans, 99 N.J. Eq. 176; Mendelsohn v. Mendelsohn, 106 N.J. Eq. 537.” (p. 98.)
A similar result has been reached in Michigan. In Murphy v. Michigan Trust Co., 221 Mich. 243, 190 N.W. 698 (1922), the Supreme Court stated:
“We must hold the deposits constituted plaintiffs joint tenants. As joint tenants the ownership of Mr. Murphy is severable for the purpose of meeting the demands of creditors.
“In the absence of proof establishing their contributions toward the deposits the presumption prevails that plaintiffs were equal contributors thereto and, therefore, equal owners. If the assignee did not want to accept such presumption the way was open to introduce testimony on the subject. We do not, however, have to rest the matter upon such presumption, as all the testimony in the case was to the effect that the principal contributor to the deposits was Mrs. Murphy. We can conceive of no reason why this joint claim for deposits made in the bank should not be allowed, and payment, if any, to Mr. Murphy withheld by order of the court until his contingent liability to contribute as a partner is determined. The joint claim should have been allowed and the right of Mrs. Murphy therein determined as one-half thereof. . . .” (p. 246.)
In accord, Czajkowski v. Lount, 333 Mich. 156, 52 N.W.2d 642 (1952); Sussex v. Snyder, 307 Mich. 30, 11 N.W.2d 314 (1943); Darst v. Awe, 235 Mich. 1, 209 N.W. 65 (1926).
In United States v. Third Nat. Bank & Trust Co., 111 F. Supp. 152, 156 (M.D. Pa. 1953), the court stated:
“. . . The attachment of the interest of a joint tenant operates as a severance of the joint ownership, makes them tenants in common and terminates the right of survivorship. Dover Trust Co. v. Brooks, Court of Chancery of N.J., 111 N.J. Eq. 40, 160 A. 890; In re Erie Trust Co., 19 Erie, Pa., 469.”
See also, American Oil Co., Ap., v. Falconer et al., 136 Pa. Super. 598, 605, 8 A.2d 418 (1939).
We believe this presumption of equal ownership should prevail in the absence of proof of ownership in some other proportion. Anyone attacking equal ownership should assume the burden of proof. If the debtor can demonstrate that he has an interest less than an equal share of the account the burden is upon him to come forward with such evidence. By the same token the debtor’s cotenant may come forward and demonstrate an ownership greater than the interest created by operation of the presumption upon severance. If it is within the power of the creditor-garnisher to demonstrate the debtor has an ownership greater than that of the other -cotenant, the garnisher is entitled to claim the greater share upon proper proof.
The trial court found the garnishment must be dissolved because the wife had no interest in the account. Yet the record indicates she wrote nearly all the checks on the account and made numerous deposits, including the proceeds of a $483.18 loan taken out and signed by her and her present husband. The finding of the trial court that Emma Stovall had no interest in the account seems to stem from the fact the garnisher could not prove exactly what her interest was in the account at the time of the garnishment, rather than from the fact she had absolutely no interest in the account. Without the presumption of equal ownership and applying the rule established by the court of appeals, the garnisher of a joint tenancy account can be defrauded by a debtor and the debtor’s cotenants by the act of commingling deposits and withdrawals to the point that no one can determine the origin of the proceeds of the account at the time of garnishment.
We hold that a garnishment upon a joint tenancy bank account severs the joint tenancy, creating a tenancy in common. A rebuttable presumption of equal ownership between the cotenants remains intact. The burden of proof on a claim the account is owned other than equally between the cotenants lies with the party asserting such claim. If married persons wish to avoid the effect of this rule they may maintain their property separate from that of their spouses and receive the protection of K.S.A. 1977 Supp. 23-201, et seq.
We reverse the decision of the court of appeals on the issue of garnishment of joint tenancy accounts and remand the case to the trial court with directions to grant a new trial in accord with rules of law established herein.
Affirmed in part and reversed in part with directions. | [
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The opinion of the court was delivered by
Holmes, J.:
This is an appeal by plaintiff-appellant from an order of the district court sustaining a motion by defendant for summary judgment.
In 1963, plaintiff, a manufacturer of ladies slippers and baby shoes, moved its business from San Francisco, California, to Neodesha, Kansas. Plaintiff entered into an arrangement with defendant for a line of credit whereby plaintiff would execute renewable 60-day notes to defendant. The notes, and loans evidenced thereby, were secured by an assignment of plaintiff’s accounts receivable and a copy of the invoice for each sale made by plaintiff was furnished to defendant. Checks received in payment of the accounts were deposited and 80% would be applied to the existing indebtedness with 20% credited to plaintiffs bank account. Each deposit slip was itemized as to invoice number and amount paid. At the time of each deposit defendant was to remove the invoices covered by the deposit and return them to plaintiff. In this way, defendant’s records at any given time should reflect only outstanding unpaid accounts.
On December 15, 1972, plaintiff executed a new 60-day note to defendant renewing its existing loan balance. This had been the customary procedure since 1963. At the time of the renewal of the note no concern was voiced by defendant’s officers about the status of plaintiff’s loans and no indication was given that defendant considered itself to be in an insecure position. Defendant now contends that its loan committee had lost confidence in plaintiff’s business as early as September, 1972.
In October, 1972, plaintiff, experiencing some difficulty collecting its ladies’ slipper accounts, authorized the bank to write letters to those ladies’ slipper customers with past-due accounts, inquiring as to the status of the accounts. Plaintiff contends defendant was not authorized to contact the baby shoe customers or customers whose accounts were current.
On December 19th and 20th, 1972, defendant wrote a form type letter, not only to the ladies’ slipper customers whose accounts were past-due, but also to others, including plaintiff’s baby shoe customers. This letter, on the bank’s letterhead and addressed to each individual customer, read:
“Gentlemen:
“We have recently made business loans to Pedi Bares, Inc., 417 Main Street, Neodesha, Kansas, secured by accounts receivable. At the present time, the company owes on an account with your company (invoice #_, dated -,). We would like for you to reply in the return envelope giving us the status of this account in the amount of $___
“Since you evidently owe the above amount, please remit your check made payable to the Pedi Bares, Inc. and the First National Bank of Neodesha, Kansas.
Sincerely yours, (Signed) G. E. Worley, dj
G. E. Worley, President”
This letter was then completed by inserting the invoice number, date of invoice and alleged amount of the account.
Of the baby shoe customers written by the bank on December 19th and 20th, 1972, plaintiff contends at least three had fully paid their accounts prior to December 14, 1972. Another eleven were allegedly paid by a deposit on December 14th. Defendant contends this deposit was not received and posted until December 20th, after the letters had been mailed. Plaintiff further contends letters were sent to eleven customers whose accounts were not due, to at least fifteen customers whose accounts were only a few days overdue and that only four were thirty days or more past-due. Defendant admits writing to 69 different customers of plaintiff.
Defendant, in its answers to interrogatories and in depositions of its officers, admits that a six-day delay in recording a bank deposit is not a normal delay; that it was not normal practice to write to accounts of its loan customers if such accounts were already paid; that it was not normal practice to write when payment of the account was not yet due; that it was not normal practice to write when an account was less than 30 days past-due; and that it was possible defendant had written to customers of plaintiff whose accounts were paid, not yet due or less than 30 days overdue.
Plaintiff alleges in its petition that before the letters were sent, it enjoyed a healthy, viable and profitable business. There is evidence both to support and refute this allegation. Plaintiff alleges the letters caused great and irreparable injury to the relationships between plaintiff and its customers which ultimately resulted in the total destruction of plaintiff’s business. Plaintiff alleges the acts of defendant were done either through defendant’s gross negligence, recklessness and carelessness or, in the alternative, amounted to the tort of malicious interference on the part of the defendant in that they were intentionally and maliciously carried out with intent to destroy plaintiff’s business. Subsequent to December 20th, 1972, plaintiff’s volume of business decreased and plaintiff eventually ceased doing business. Plaintiff in its petition prayed for both actual and punitive damages.
Many of the factual issues alleged by plaintiff, including the allegations of negligence and bad faith, are disputed by the defendant, although defendant takes the position that regardless of the facts involved, it had the “right to write” the December letters. Defendant further takes the position that the letters cannot be construed to be collection letters but were merely an attempt to ascertain the status of the accounts.
The original arrangement between the parties was supplemented by an assignment of accounts receivable in a security agreement executed in 1965. Pertinent portions of the agreement are:
“Until the Bank shall give notice to the Assignor to the contrary, the Assignor will, in the usual course of the Assignor’s business and at the Assignor’s own cost and expense, but as the agent of the Bank, demand and receive and use its best efforts to collect all moneys due or to become due on such Accounts Receivable. . . . It is agreed that, at any time the Bank so elects, it shall be entitled, in its own name or in the name of the Assignor or otherwise, but at the expense and cost of the Assignor, to collect, demand, receive, sue for or compromise any and all such Accounts Receivable, and to give good and sufficient releases therefor, to endorse any checks, drafts or other orders for the payment of money payable to the Assignor in payment thereof and, in its discretion, to file any claims or take any action or proceeding, either in its own name or in the name of the Assignor or otherwise, which the Bank may deem necessary or advisable. . . .”
Although plaintiff specifies twenty points on appeal, the basic issue concerns whether defendant had the right to write the December, 1972 letters and in so doing whether defendant was negligent or acted in bad faith.
The trial court on January 20, 1976, filed its memorandum sustaining defendant’s motion for summary judgment. The court found that the letters written by the defendant were not attempts to collect the accounts but were simply to verify the status of these accounts. The court reasoned that since the defendant had a right to let plaintiff’s customers know of the existence of the assignment, there were no factual issues in dispute, and summary judgment was therefore proper. In his memorandum, the court states in part:
“Plaintiff relies upon the provision of the assignment which permits the assignor to continue to collect the accounts, as agent of the assignee. Contrariwise, defendant relies upon the provision, in the same paragraph, that “at any time the Bank so elects” it may collect the accounts. The latter provision is interpreted by me to require that such election be brought to the attention of the assignor, and if this were the substance of the matter I would say that the plaintiff has a justifiable claim, but such is not the fact. The letters which defendant wrote did not constitute taking over the collection of the accounts. . . .”
In explaining his conclusion, the trial judge goes on to state:
“. . . there can be no actionable damage from giving actual notice to debtors of the assignor. Again I emphasize that the letters did not constitute a taking over of the accounts; they first sought a report on the status of the accounts, followed by a request that whatever was owing be paid to assignor and assignee jointly. I can see nothing wrong about that.
“In summary, plaintiff’s claim stands or falls on the question whether defendant did wrong in letting plaintiff’s customers know of the existence of the assignment and I have found against the plaintiff on that point.
“. . . . Plaintiff charges defendant with improper motives and intent. To make such matters relevant there must be a wrongful act, and my rulings are that the defendant committed no wrongful act.”
K.S.A. 60-256(c) provides in part that summary judgment “. . . shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. . . .”
Summary judgment under the provisions of K.S.A. 60-256(c) is to be granted only where the record conclusively shows there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. In considering such a motion plaintiff in this case is entitled to the benefit of all reasonable inferences and doubts that may be drawn from the facts under consideration. Vaughn v. Murray, 214 Kan. 456, 521 P.2d 262 (1974).
This court has further stated;
“. . . It is only when it can be said that reasonable persons could reach but one conclusion from the same evidence that an issue may be decided as one of law. Summary judgment should never be granted merely because the court may believe movant will prevail if the action is tried on the merits.” Williams v. Community Drive-in Theater, Inc., 214 Kan. 359, 364, 520 P.2d 1296 (1974).
The trial judge was premature in finding as a matter of law that the letters written by defendant were not for the purpose of collecting the accounts but only to verify the existence of the accounts. The language “Since you evidently owe the above amount, please remit your check made payable to the Pedi Bares, Inc. and the First National Bank of Neodesha, Kansas,” does not clearly substantiate a finding that the letters were merely to verify the accounts. The letters ask for remittance. The purpose of the letters would appear to be an issue for the trier of the facts.
Secondly, the trial court’s summation of the issue as being whether the defendant bank had a right to write the letters does not entirely dispose of plaintiff’s complaint. Plaintiff’s allegations not only center around whether defendant had a right to send the letters but also whether defendant was negligent or acted in bad faith.
Part of plaintiff’s agreement with the defendant was the security agreement, pertinent parts of which are set forth above. The Uniform Commercial Code speaks to the issue of collection rights of a secured party.
K.S.A. 84-9-502 in effect in 1972 provided:
“(I) When so agreed and in any event on default the secured party is entitled to notify an account debtor or the obligor on an instrument to make payment to him whether or not the assignor was theretofore making collections on the collateral, and also to take control of any proceeds to which he is entitled under section 84-9-306.”
Subsection (2) provided in part:
“A secured party . . . who undertakes to collect from the account debtors or obligors must proceed in a commercially reasonable manner . . . .”
In addition, K.S.A. 84-1-203 imposes upon every contract or duty an obligation of good faith upon the parties involved. The comment to K.S.A. 84-1-203 explains its purpose as follows:
“This section sets forth a basic principle running throughout this Act. The principle involved is that in commercial transactions good faith is required in the performance and enforcement of all agreements or duties. . . .”
Assuming the December, 1972, letters are found to be an attempt at collection, defendant was obligated to proceed in a commercially reasonable manner and to act in good faith. If the letters are found to be merely an attempt to determine the status of the accounts, defendant was still obligated to proceed without negligence and in good faith. Plaintiff has alleged in its petition that the defendant was either negligent or intentionally malicious and as a result plaintiff’s business was destroyed.
“Normally, the presence or the absence of negligence in any degree is not subject to determination by the court on summary judgment, for such a determination should be left to the trier of the facts. It is only when it can be said that reasonable men cannot reach differing conclusions from the same evidence that the issue may be decided as a question of law.” Vaughn v. Murray, supra, Syl. 2.
As there remain genuine issues of fact to be resolved, the summary judgment cannot stand.
The judgment is reversed and the case is remanded for further proceedings. | [
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The opinion of the court was delivered by
Prager, J.:
This is a direct appeal from convictions of two counts of kidnapping (K.S.A. 21-3420). The facts in the case are not disputed. The prosecution was the result of an occurrence within the walls of the Kansas State Industrial Reformatory at Hutchinson on March 10, 1976. On that date the defendant Ronald L. Dunn was serving a sentence for the crime of aggravated juvenile delinquency.
The defendant Dunn and two other inmates entered the office of Ray Atkins, an instructor at the reformatory. Atkins and his secretary, Avanelle Hardesty, were taken and confined as hostages in the office for a period of about five hours. The defendant told Atkins and Mrs. Hardesty that as long as they cooperated they would not be hurt. Both Atkins and Mrs. Hardesty described the defendant as calm and collected. They testified that defendant gave orders to the two other inmates involved. The defendant had numerous telephone calls with various prison officials. On several occasions defendant stated that he was not going to hurt the hostages if his orders were followed. He demanded a car full of gas to be placed in a certain location where the defendant and his companions could enter the car and leave the institution. Dr. Jose Sintos, a medical doctor at the institution who had counseled in the past with the defendant, suggested to defendant that he release Atkins and Mrs. Hardesty as hostages in exchange for Dr. Sintos and Major Hendry. In reply defendant stated, “No, I know what a good thing I have,” indicating that he felt the prison authorities would cooperate more if he had a woman as a hostage. The defendant made it clear that if his demands were not met he would kill the hostages.
The defendant relied upon the defense of insanity. He called to the stand a psychiatrist, Dr. Herbert Modlin of the Menninger Foundation in Topeka, who testified that he had examined the defendant Dunn several months after the incident occurred. He was of the opinion that the defendant had limited mental capacities, was mentally retarded with a low I.Q., and had difficulties in thinking — particularly when under stress. Defendant told Dr. Modlin that he decided if he was to get out of prison he had to take things in his own hands. In Dr. Modlin’s view, the defendant got the idea of taking hostages from viewing a television show. In regard to the defendant’s mental condition at the time he took and held the hostages, Dr. Modlin testified that the defendant “probably was aware that what he was doing other people would consider wrong, certainly rules breaking, but from his point of view he felt quite justified.” Prior to testifying, Dr. Modlin had an opportunity to read the transcripts of defendant’s various telephone conversations with prison officials. It was Dr. Modlin’s opinion that these telephone conversations would tend to make one believe that defendant was, in fact, very lucid and was in control of his faculties on the day in question. It is obvious why the jury brought in a verdict of guilty on both counts.
The first point raised on the appeal is that the evidence was not sufficient to establish kidnapping under K.S.A. 21-3420(b). K.S.A. 21-3420 provides as follows:
“Kidnapping. Kidnapping is the taking or confining of any person, accomplished by force, threat or deception, with the intent to hold such person:
“(a) For ransom, or as a shield or hostage; or
“(b) To facilitate flight or the commission of any crime; or
“(c) To inflict bodily injury or to terrorize the victim or another; or
“(d) To interfere with the performance of any governmental or political function.
“Kidnapping is a class B felony.”
The defendant relies upon State v. Buggs, 219 Kan. 203, 547 P.2d 720, which held that the word “facilitate” in K.S.A. 21-3420(b) means something more than just to make more conve nient. A taking or confining, in order to be said to “facilitate” a crime, must have some significant bearing on making the commission of the crime “easier.” If a taking or confining is alleged to have been done to facilitate the commission of another crime, to constitute kidnapping the resulting movement or confinement (a) must not be slight, inconsequential and merely incidental to the other crime; (b) must not be of a kind inherent in the nature of the other crime; and (c) must have some significance independent of the other crime in that it makes the other crime substantially easier of commission or substantially lessens the risk of detection. Relying on Buggs, the defendant argues that the evidence of the state does not show that the confinement of the two hostages made the crime of aggravated escape easier to commit, because the confinement actually had the effect of calling attention to the defendant and, in fact, made it more difficult for the defendant and his companions to escape from custody. We find no merit in the defendant’s contention.
Defense counsel completely ignores the fact that under K.S.A. 21-3420(a) the confining of any person, accomplished by force, threat, or deception, with the intent to hold such person as a hostage, constitutes the crime of kidnapping. Here the information alleged in the alternative that the defendant confined the two prison employees with the intention to hold them as hostages or to facilitate the commission of the crime of aggravated escape. The evidence is absolutely uncontroverted that the defendant confined Atkins and Mrs. Hardesty, stating that it was his intention to hold them as hostages until his demands for a car and free passage out of the reformatory were complied with. The evidence presented by the state was sufficient to establish that the two victims were confined with the intent to hold such persons as hostages under subparagraph (a) and also to facilitate the commission of the crime of aggravated escape under subparagraph (b)•
The defendant’s second point on appeal is that the trial court erred in failing to give to the jury a requested instruction on the crime of unlawful restraint (K.S.A. 21-3424) as a lesser included offense under kidnapping. K.S.A. 21-3424 defines unlawful restraint as knowingly and without legal authority restraining another so as to interfere substantially with his liberty. No specific intent is required. It is the position of the defendant that the psychiatric testimony of Dr. Herbert Modlin raised a fact issue as to defendant’s mental capacity to form the requisite specific intent to hold the persons confined as hostages or to facilitate flight or the commission of a crime required by K.S.A. 21-3420. Defendant argues that, because of his mental illness, he could not have had the specific intent to hold Atkins and Mrs. Hardesty for the purposes set out in the kidnapping statute and that the jury, if given the opportunity, might have convicted him of the lesser crime of unlawful restraint. We, of course, have adopted the rule that the failure to instruct on a lesser included offense is error when the omitted instruction is required by the evidence and under the circumstances the defendant might reasonably have been convicted of the lesser offense had the instruction been given. (State v. Masqua, 210 Kan. 419, 502 P.2d 728, cert. den. 411 U.S. 951, 36 L.Ed.2d 413, 93 S.Ct. 1939.)
We have concluded, however, that there was not sufficient evidence introduced at the trial to raise a legitimate factual issue as to whether defendant had the capacity to form the requisite specific intent so as to require an instruction on unlawful restraint. As pointed out above, although Dr. Herbert Modlin did testify that the defendant had limited mental capacities and some difficulties in thinking, especially when under stress, it was the doctor’s opinion that the defendant was probably aware that what he was doing other people would consider wrong and certainly that he was violating the rules. Dr. Modlin further testified that the transcript of defendant’s telephone conversation would lead one to believe that the defendant was lucid and was in control of his faculties on the day in question. The testimony of the state’s witnesses as to defendant’s demeanor was undisputed that the defendant knew exactly what he was doing, was at all times calm and collected, gave orders to the other two inmates, specifically referred to Atkins and Mrs. Hardesty as hostages, and demanded a car for the purpose of escaping the institution. On the basis of this undisputed evidence we have no hesitancy in concluding that the evidence did not justify an instruction on the lesser offense of unlawful restraint (K.S.A. 21-3424).
The defendant’s final point is that the trial court erred in failing to give a limiting instruction on the state’s evidence that at the time the hostages were taken, defendant was serving time in the reformatory for the offense of aggravated juvenile delinquency. This evidence was an important part of the factual circumstances existing when the hostages were taken by the defendant. Such evidence was admissible independently of K.S.A. 60-455 and therefore a limiting instruction was not required. (State v. Smolin, 221 Kan. 149, 557 P.2d 1241; State v. Ralls, 213 Kan. 249, 515 P.2d 1205.)
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The opinion of the court was delivered by
Fromme, J.:
Dennis G. Sanders was convicted of first degree murder (K.S.A. 21-3401) in the death of Linda Leebrick of Hill City, Kansas. Sanders relied on the defense of insanity and filed notice thereof in accordance with K.S.A. 22-3219. He appeals from that conviction. The evidentiary facts leading to the arrest of Sanders are not in conflict.
Linda Leebrick, a school teacher in the Hill City schools, failed to appear for classes. On investigation the officers found the door to her apartment had been smashed and she was not there. The police organized a manhunt and her body was located several days later in a secluded area near Hill City. Miss Leebrick had been badly beaten. She had suffered a skull fracture and a severed trachea. A tire print and the print of a tennis shoe were found at the scene of the crime. Several bloody tree limbs found at the scene appeared to be the murder weapons.
The Kansas Bureau of Investigation was called into the case. A coroner’s report and various laboratory reports confirmed that death had been caused by blows to the head and neck. There was no evidence of rape. The tire print had been made by a pickup truck which had a flap of rubber missing from one tire. The tennis shoe print had a rippled tread. Blood from the victim was spattered in the area where the body was located and blood was found on the limbs and leaves of a tree nearby. Sanders became a suspect when it was discovered a tire on his pickup truck had a flap of rubber missing which compared favorably with the defect discovered in the tire print left at the scene of the crime. It was further discovered that Sanders had a pair of tennis shoes with rippled soles. He voluntarily turned the shoes in to the sheriff. They had been laundered recently. A laboratory examination of the shoes uncovered the presence of human blood of the same type as that of the victim. Sanders was arrested and later confessed to committing the crime.
On appeal the defendant-appellant raises several alleged trial errors which we will consider in the order presented in his brief. He first challenges the qualifications of two jurors who sat during the trial and who had previously been spectators, either during portions of the preliminary hearing or during a pretrial hearing concerning this same case.
Our examination of the record discloses that these two jurors were examined separately on voir dire. Their attendance at these previous hearings was brought out during voir dire and neither juror was challenged separately for that cause.
Our statute K.S.A. 22-3410 contains a list of grounds upon which a juror may be successfully challenged for cause. This statute provides that a party may challenge any prospective juror for cause and each challenge shall be tried to the court. Presence as a spectator at some pretrial hearing in the case is not one of the grounds specified. The only ground listed in the statute which could possibly authorize disqualification of the two jurors is listed under (2) (i) which authorizes a party to challenge a juror for cause when:
“His state of mind with reference to the case or any of the parties is such that the court determines there is a doubt that he can act impartially and without prejudice to the substantial rights of any party.”
The statute requires all challenges for cause to be made before the jury is sworn to try the case.
Appellant cites no Kansas cases directly in point; however, in State v. Scott (1895), 1 Kan. App. 748, 42 Pac. 264, it is held:
“A juror who was in the court-room and heard the evidence upon a plea in bar is not thereby disqualified to serve as a juror in the original case.” (Syl. 3.)
There is no dearth of decisions in other jurisdictions on this point. The cases fall into two categories: (1) when a juror has participated in the trial of a criminal case or some related hearing involving the same defendant, and (2) when a juror’s presence at an earlier trial or some related hearing involving the same defendant was merely as a bystander, one who had no interest in the proceeding other than curiosity. See Anno: Juror—Disqualification—Criminal Case, 6 A.L.R.3d 519, § 2, p. 526. In the latter category it is generally held that mere presence as a spectator at a prior trial or at some hearing related to a present trial involving the defendant does not, standing alone, disqualify a juror for cause. This general rule is in accord with our statute and case law.
In State v. Paxton, 201 Kan. 353, 440 P.2d 650, cert. den. 393 U.S. 849, 21 L.Ed.2d 120, 89 S.Ct. 137, a juror’s wife was a first cousin of the wife of the complaining witness. The juror in the Paxton case was never challenged for cause prior to the trial and this court said:
. . . Ordinarily, a question touching upon a juror’s qualifications, if not raised until after the verdict is rendered, comes too late and is not available for the purpose of the defendant’s obtaining a new trial. [Citations omitted.] K.S.A. 62-1410 [now K.S.A. 22-3410] requires that all challenges for cause be made before the jury is sworn, except where the cause for challenge is not discovered until after the jury is sworn and before the introduction of evidence. When a party, knowing at the time of impanelling the jury that a juror is incompetent, fails to challenge for cause, he waives any right to make complaint upon that ground thereafter. [Citations omitted.]” (201 Kan. pp. 359-360.)
Under K.S.A. 22-3410 (2) (i) before a juror should be excused for cause the court must determine that the juror’s state of mind with reference to the case or any of the parties is such there is a doubt that the juror can act impartially and withour prejudice to the substantial rights of any party.
Whether a prospective juror is qualified to sit in the trial of a case is a question for determination by the trial court and its ruling will not be disturbed unless it is clearly erroneous or there has been an abuse of discretion. (State v. Amodei, 222 Kan. 140, Syl. 4, 563 P.2d 440.)
Accordingly appellant’s present challenges of these two jurors must fail for two reasons: First, the alleged cause for challenge was known during voir dire yet it was not raised before the jury was sworn; and second, it has not been shown the jurors’ states of mind prevented them from acting impartially and without prejudice to the substantial rights of the defendant. The trial court did not err in permitting the two jurors to serve.
The next point on appeal involves the admission into evidence of appellant’s oral confession. Appellant’s complaint of coercion is based upon (1) expert testimony which established that appellant had a low intelligence quotient and (2) the use of a polygraph examination by the investigating officers. Appellant contends the circumstances which preceded the taking of the statement constituted coercion, rendering the confession involuntary.
When the victim was discovered missing on April 21, 1976, the police interviewed appellant along with other neighbors who lived in the same neighborhood. Appellant lived across the street from Linda Leebrick. After the victim’s body was discovered and the distinctive tire track was discovered appellant was again interviewed and he consented to an examination of his pickup which included photographing and measuring the tires. At that time he was asked and denied owning tennis shoes but later that same evening appellant voluntarily appeared at the sheriff’s office and handed the K.B.I. agents a pair of tennis shoes. He advised them he had lied about not owning tennis shoes and didn’t know why. After an overnight laboratory examination was made of the shoes appellant was picked up. At this time he became the prime suspect.
After being advised of his Miranda rights he was questioned and he agreed to a polygraph examination which was administered. After the polygraph examination he was interviewed further by K.B.I. agent Lyons and then appellant confessed to the murder. Later he repeated his oral confession in the presence of K.B.I. agent Pruter. Before the two agents could arrange for a court reporter to obtain appellant’s statement in writing appellant asked for an attorney. The interrogation ceased at this point and no further effort was made to obtain a written statement.
A motion to suppress the confession was heard prior to trial. The trial judge after considering the evidence held the statement of the appellant was voluntarily given and was admissible at the trial.
The appellant testified at the hearing and contends on appeal that the statement was taken after he had requested and had been refused an attorney. He further contends that the use of the polygraph constituted coercion and rendered the statement involuntary because of his limited intelligence.
“Coercion in obtaining a confession from an accused can be mental as well as physical. In determining the voluntariness of a confession of crime, the question in each case is whether the defendant’s will was overborne at the time of the confession; if so, the confession cannot be deemed the product of a rational intellect and a free will. [Citation omitted.] In determining the admissibility of a statement of the defendant obtained during custodial interrogation the trial court must weigh any conflicting evidence and make its findings based on the totality of the circumstances. If there is substantial competent evidence to support the trial court’s findings that the defendant voluntarily, knowingly and intelligently waived his Fifth and Sixth Amendment rights, such findings will not be disturbed on appellate review. . . .” (State v. Soverns, 215 Kan. 775, 777, 529 P.2d 181.)
The testimony of the appellant at the suppression hearing was in sharp conflict with other testimony elicited by the state from the agents. These conflicts in the testimony raised questions of fact to be determined by the trial judge. See State v. Wilson, 220 Kan. 341, 552 P.2d 931, and State v. Kanive, 221 Kan. 34, 558 P.2d 1075. There was substantial competent evidence to support the trial court’s findings and they will not be disturbed on appeal.
Appellant’s contention that the use of the polygraph amounted to coercion has previously been addressed by this court in State v. Blosser, 221 Kan. 59, 558 P.2d 105, where we hold:
“The fact that incriminating statements are made by a defendant during the course of a polygraph examination does not of itself render such statements inadmissible. They are admissible where found to be voluntarily made.
“That incriminating statements were made during the course of a polygraph examination is a factor which may be considered on the issue of voluntariness but such fact does not of itself make the statements inadmissible.” (Syl. 3 and 4.)
There is an insufficient showing in the record to support the other arguments on coercion arising from the use of the polygraph. It does not appear that threats or promises were made. There is nothing to indicate whether appellant was or was not advised that the results of a polygraph examination could be used at the trial. No error appears on this point.
Appellant next argues that on voir dire all of the prospective jurors admitted that they had heard about the Sanders case and had read newspaper articles concerning the death of Linda Lee-brick and the arrest of the appellant Sanders. Appellant concludes that this establishes general prejudice in the community which prevented a fair trial. The publication of articles in newspapers and the news media does not per se establish prejudice in the community against the defendant. Prejudice in the community must be shown as a demonstrable reality. (State v. Gander, 220 Kan. 88, 551 P.2d 797; State v. Randol, 212 Kan. 461, 463, 513 P.2d 248.)
Appellant filed a motion for change of venue and in support of the motion introduced a large number of newspaper articles which had appeared in the Hill City and Hays papers. He obtained copies of many short news releases which were broadcast over the radio and television stations in Hays and Goodland. In addition he filed ten personal affidavits from residents in the Graham County area to the effect that the affiants were of the opinion after reading the reports in the news media that Sanders had committed the crime or that he could not have a fair trial because of prejudice in the county.
During argument on the motion the defense attorney suggested that Sanders was removed from the Hill City jail and transported to Hays for his own safety. He further suggested that community feeling must have been so high that there was a possibility of a lynch mob. This was refuted in newspaper articles which reported an interview with the sheriff at the time Sanders was moved to Hays. The sheriff stated that after a psychiatric evaluation of Sanders was made it was suggested by the county attorney and others that for Sanders’ own self protection he should be placed in a jail which had twenty-four hour supervision. There was some possibility of suicide. Hill City did not provide twenty-four hour supervision at the jail.
Some mention was made by the defense attorney at the hearing that there had been a further report of a cross burning in the front yard of the woman Sanders lived with prior to the time of the homicide. The alleged incident was not reported by any of the news media and was apparently without substance. No evidence was introduced to support this statement by defense counsel.
At the close of the hearing on the motion for change of venue the trial judge noted that neither the victim nor the appellant had relatives living in the county; that the news articles were objective and not inflammatory; that few people were interested enough to attend the widely publicized hearing for change of venue; and that because of the type of crime and the general publicity over the entire state it was doubtful if there were any other counties in the area where news of the crime had not reached the residents. The judge stated he was reserving his ruling on the motion for change of venue until after the jury selection and if during the selection of the jury prejudice in the community became apparent he would grant the motion. After the jury was selected the motion for change of venue was denied and the judge commented that 120 prospective jurors were summoned. Of the 120 only 70 persons were examined in obtaining the 37 jurors necessary before peremptory challenges were exercised. This provided a 12 person jury with one alternate. The judge noted the news media reporting had been on an objective basis without any attempt to influence the outcome of the trial and that a majority of the jurors chosen to serve were college graduates.
K.S.A. 22-2616(1) provides:
“In any prosecution, the court upon motion of the defendant shall order that the case be transferred as to him to another county or district if the court is satisfied that there exists in the county where the prosecution is pending so great a prejudice against the defendant that he cannot obtain a fair and impartial trial in that county.”
The scope of review on refusal to grant a change of venue has been discussed previously:
“It has long been the law of Kansas that a change of venue in a criminal case lies within the sound discretion of the trial court. Before a change of venue to another county can be granted, it must affirmatively appear that in the county in which the cause is pending there exists such prejudice as to make it reasonably certain the defendant will be denied a fair trial. The ruling of the trial court on this question will not be disturbed if supported by competent evidence and if there is no showing of prejudice to the substantial rights of the defendant. . . .’’(State v. McLaughlin, 207 Kan. 594, 597, 485 P.2d 1360.)
In State v. Gander, supra, the following rule is stated with approval:
“Before a change of venue is required prejudice must be shown as a demon strable reality. The publication of articles in local newspapers does not per se establish prejudice.” (220 Kan. 88, Syl. 6.)
In State v. Anderson, 202 Kan. 52, 446 P.2d 844, it is held:
“In a criminal action on a motion for change of venue the burden of proof is upon the defendant to make it affirmatively appear that such prejudice exists in the community that it will be reasonably certain he could not obtain a fair trial. Failing in such proof the defendant cannot be heard to complain of the trial court’s order overruling his motion.” (Syl. 1.)
When the defendant on a motion for change of venue fails to sustain the burden of proof to show prejudice in the community which would prevent a fair trial the state is not required to produce evidence refuting that of the defendant. (State v. Anderson, supra, p. 55; State v. McLaughlin, supra, p. 598; and State v. Randol, supra, p. 464.)
Thus, it has been held (1) the burden of proof is on defendant, (2) not only prejudice must be shown but it must be such prejudice as to make it reasonably certain the defendant cannot obtain a fair trial, (3) there must be more than speculation, (4) the state is not required to produce evidence refuting that of the defendant, and (5) granting a change of venue lies within the sound discretion of the trial court and its ruling will not be disturbed if supported by competent evidence and if there is no showing of prejudice to the substantial rights of the defendant.
We have reviewed the articles published by the news media and have considered those factors mentioned by the trial judge when the motion for change of venue was denied. We note the time lapse (five months) between the publication of a majority of the news articles and the actual trial of the case. We further note that the defense in this case was insanity. We cannot say under the circumstances that the trial court abused its discretion in refusing a change of venue.
As the final point on appeal appellant urges this court to abandon the M’Naghten test of insanity and order a separation of the question of guilt from the question of mental disease, insanity, in this and future trials.
We have this day declined to abandon the M’Naghten test of insanity in State v. Smith, 223 Kan. 203, 574 P.2d 548. In addition the point was not preserved for consideration on appeal. The appellant at the trial requested an instruction covering the M’Naghten test of insanity and the same was given. Now he cannot predicate error thereon after having made such request at the trial level.
As to appellant’s argument that error flowed from failure of the trial court to separate the question of guilt from the question of insanity we point to our statute, K.S.A. 1976 Supp. 22-3428(1), which provides:
“When a person is acquitted on the ground that he or she was insane at the time of the commission of the alleged crime the verdict shall be ‘not guilty because of insanity,’ and the person so acquitted shall be committed to the state security hospital for safekeeping and treatment.”
In State v. Lamb, 209 Kan. 453, 472, 497 P.2d 275, the denial of a bifurcated trial was claimed as.error. In Lamb this court held that a trial court does not err in refusing a request for a bifurcated trial. The verdict form required by K.S.A. 1976 Supp. 22-3428 contemplates an unbifurcated trial. The statute has not been changed and this court declines to adopt the rule urged by appellant in view of the statutory procedural rules now in effect.
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The opinion of the court was delivered by
Owsley, J.:
This is an appeal from an order granting summary judgment in favor of plaintiff, David Lines, requiring the City of Topeka to reinstate him in the position of city building inspector with back pay.
Plaintiff was appointed building inspector for the city in November, 1968. Prior to the time of his appointment the city enacted Topeka City Ordinance 8-101, et seq., relating to the creation of a building department and chief building inspector. Section 8-102 provides the chief building inspector shall be appointed by the mayor, with the consent of the other commissioners, to serve for an indefinite term. It refers to Charter Ordinance No. 14 for its removal provisions. Ordinance No. 14 required a vote of four commissioners for removal without cause. The other terms of that ordinance are irrelevant because Charter Ordinance No. 14 was repealed in 1973 and replaced by Charter Ordinance No. 22. The new ordinance required the city attorney, city clerk, city treasurer, city auditor, city engineer, superintendent of streets, superintendent of water works, fire chief, police chief, city forester, superintendent of public parks, airport manager, traffic engineer, building inspector, director of water pollution control, and the refuse director to be residents of the city in order to qualify and remain in their respective offices. Any of said officers could be removed from his respective office by a three-fifths vote of the commissioners, with or without cause. Neither the charter ordinance nor any other city ordinance defined the term “residence.” Ordinance 8-101, et seq., was never amended or repealed.
In June, 1974, plaintiff moved from a private home to an apartment located within the city limits of Topeka. On February 14, 1975, plaintiff married his present wife. At the time of their marriage she owned a home in rural Perry, Kansas. For reasons unnecessary to discuss in order to resolve this appeal, plaintiff began staying at the Perry home on occasion but continued to maintain his Topeka apartment. Whether the Perry home became his “residence” is disputed and was never resolved by the trial court.
On March 24, 1976, Commissioner Kenneth Elder questioned whether plaintiff was any longer a resident of the City of Topeka. Two responses by the city attorney’s office did not clear up the matter and on April 6, 1976, Mayor Bill McCormick proposed the city commission direct the city attorney’s office to draft an ordinance defining “residence” so that it might be enacted into law. More importantly, he recommended plaintiff “be continued in employment temporarily until the ordinance amendment becomes law, and, at that time he be notified to comply with the defined residence requirements or be terminated from his employment.” The proposal was passed and approved by a unanimous vote of the commissioners. The commission also granted plaintiff a reasonable time to comply with the ordinance following its enactment. For some unknown reason the proposed ordinance was prepared but was never enacted.
In a surprise move on April 29, 1976, Mayor McCormick recommended plaintiff be terminated for poor job performance. At the regular commission meeting on May 4, 1976, the commission refused to terminate plaintiff for the reason stated by the mayor. McCormick then proposed he be terminated because he was not a Topeka resident as required by Charter Ordinance No. 22. Three commissioners voted in favor of the proposal and plaintiff was terminated.
Plaintiff filed suit in district court challenging the constitutionality of Charter Ordinance No. 22, contesting the legality of the termination proceedings, and seeking reinstatement to the position of chief building inspector with payment of back wages. After completing discovery both parties moved the trial court to grant summary judgment in their favor. On May 19,1977, the trial court declared that Charter Ordinance No. 22 was unconstitutional for vagueness and uncertainty, and ordered that plaintiff be reinstated as chief building inspector with payment of back wages.
The city appeals, arguing the trial court erred in (1) declaring Charter Ordinance No. 22 unconstitutional, (2) granting plaintiff’s motion for summary judgment, (3) failing to grant its motion for summary judgment, and (4) failing to consider whether defendant is entitled to a set-off on damages for other income earned by plaintiff. Plaintiff cross-appeals, arguing the trial court erred in (1) failing to declare Charter Ordinance No. 22 unconstitutional because it places an unreasonable restriction on travel and violates the equal protection clause, and (2) failing to award plaintiff attorney’s fees.
Before considering the issues raised by the parties it is necessary to determine which ordinance governs the removal of the chief building inspector. Plaintiff contends 8-102 controls; the city contends Charter Ordinance No. 22 controls. We agree with the city’s position.
Although Charter Ordinance No. 14 and 8-102 governed the removal of the building inspector when plaintiff was appointed to that position in November, 1968, there is no rule of law which prohibits the city from changing the method by which it removes its department heads. No person has a vested right in any rule of law entitling him to insist it shall remain unchanged for his benefit. (State ex rel. Schneider v. Liggett, 223 Kan. 610, 576 P.2d 221 [1978].)
Because Charter Ordinance No. 22 was enacted after 8-102, its removal provisions apply. It is well established that the latest expression of the governing body upon a subject applies, and it operates to repeal the earlier inconsistent provisions even though both may remain on the book. (Mannel v. Mannel, 186 Kan. 150, 348 P.2d 626 [1960]; Lawton v. Hand, 183 Kan. 694, 331 P.2d 886 [1958].)
The first issue on appeal concerns the constitutionality of Charter Ordinance No. 22. The answers to the following questions determine this issue: Is the ordinance impermissibly vague? Does the ordinance impermissibly restrict the right of travel protected under the constitution? Does the ordinance violate equal protection because it applies to some city employees but not others?
It must be remembered that it is the duty of this court to uphold legislation rather than defeat it. If there is any reasonable way to construe the law as constitutionally valid, or if any set of facts can justify the legislation, that should be done. (State v. Kirby, 222 Kan. 1, 563 P.2d 408 [1977]; Brown v. Wichita State University, 219 Kan. 2, 547 P.2d 1015 [1976]; Henry v. Bauder, 213 Kan. 751, 518 P.2d 362 [1974]; Dandridge v. Williams, 397 U.S. 471, 25 L.Ed.2d 491, 90 S.Ct. 1153, reh. denied 398 U.S. 914, 26 L.Ed.2d 80, 90 S.Ct. 1684 [1970].)
The basic test as to what constitutes a vague and indefinite statute was stated in Connally v. General Const. Co., 269 U.S. 385, 70 L.Ed. 322, 46 S.Ct. 126 (1926). There the Court held that the terms of a penal statute must sufficiently inform those who are subject to it what conduct will subject them to its penalties, and an act which forbids or requires the doing of the act in terms so vague that persons of common intelligence must necessarily guess at its meaning and application violates due process. (See, Kansas City Millwright Co., Inc. v. Kalb, 221 Kan. 658, 562 P.2d 65 [1977].) A statute will not be considered vague, however, if it employs words commonly used, previously judicially defined, or having a settled meaning in the law. (Unified School District No. 255 v. Unified School District No. 254, 204 Kan. 282, 463 P.2d 499 [1969].)
Here the issue is whether the term “residence” is so vague as to require persons to guess at its meaning and application. We think not.
Although the terms “domicile” and “residence” may have different legal meanings, “residence” as defined in the statute is substantially the equivalent of “domicile” — the adoption of a place of habitation with the intent to return thereto. (Stumfoll v. Inman, 188 Kan. 553, 363 P.2d 443 [1961]; Irvin v. Irvin, 182 Kan. 563, 322 P.2d 794 [1958]; Amette v. Amette, 162 Kan. 677, 178 P.2d 1019 [1947]; Gleason v. Gleason, 159 Kan. 448, 155 P.2d 465 [1945]; Littell v. Millemon, 154 Kan. 670, 121 P.2d 233 [1942]; Blair v. Blair, 149 Kan. 3, 85 P.2d 1004 [1939].) While in a technical sense a person may have more than one residence, he has only one domicile. (McCarthy, Aplnt. v. Phila. Civ. Svc. Com., 19 Pa. Commw. Ct. 383, 339 A.2d 634 [1975], aff’d 424 U.S. 645, 47 L.Ed.2d 366, 96 S.Ct. 1154 [1976].) Much of the confusion in terms was eliminated by the passage of K.S.A. 77-201 Twenty-third, which states:
“The term ‘residence’ shall be construed to mean the place adopted by a person as such person’s place of habitation, and to which, whenever such person is absent, such person has the intention of returning. When a person eats at one place and sleeps at another, the place where such person sleeps shall be deemed such person’s residence.”
Although 77-201 was designed by the legislature to apply to construction of statutes, the rules contained therein apply to ordinances when those ordinances do not contain their own definitions or rules of construction. (See, Phillips v. Vieux, 210 Kan. 612, 504 P.2d 196 [1972]; Desser v. City of Wichita, 96 Kan. 820, 153 Pac. 1194 [1915]; Denning v. Yount, 9 Kan. App. 708, 59 Pac. 1092, aff’d 62 Kan. 217, 61 Pac. 803 [1900].) Taking into consideration prior judicial constructions and 77-201 Twenty-third, we have no hesitancy in holding that the term “residence” has a common understanding and the term is not so vague as to render Charter Ordinance No. 22 unconstitutional.
Plaintiff presents two constitutional challenges on the residency requirement. First, he argues it infringes upon his “right to travel.” Second, he argues it violates the equal protection clause.
Plaintiff argues the “compelling state interest” test should apply because the right to travel is a fundamental interest, citing Shapiro v. Thompson, 394 U.S. 618, 22 L.Ed.2d 600, 89 S.Ct. 1322 (1969); and Donnelly v. Manchester, 111 N.H. 50, 274 A.2d 789 (1971). We do not find those cases persuasive. An examination of Shapiro and its progeny, Dunn v. Blumstein, 405 U.S. 330, 31 L.Ed.2d 274, 92 S.Ct. 995 (1972), and of Memorial Hospital v. Maricopa County, 415 U.S. 250, 39 L.Ed.2d 306, 94 S.Ct. 1076 (1974), convinces us that the aspect of the right to travel with which these cases were involved is not present here. They were involved with the validity of durational residency requirements and the effect of those requirements on interstate travel.
Our conclusion that the Shapiro line of cases and Donnelly v. Manchester, supra, do not apply is bolstered by two recent United States Supreme Court decisions. In D.P.O.A. v. City of Detroit, 385 Mich. 519, 190 N.W.2d 97 (1971), dismissed for want of substantial federal question in 405 U.S. 950, 31 L.Ed.2d 227, 92 S.Ct. 1173 (1972), the Michigan Court applied the “rational basis” test in a case requiring Detroit police officers to be residents of that city. The fact the United States Supreme Court dismissed the case for want of a substantial federal question is a decision on the merits affirming the appealed case. (Hicks v. Miranda, 422 U.S. 332, 344, 45 L.Ed.2d 223, 95 S.Ct. 2281 [1975]; Ahern v. Murphy, 457 F.2d 363 [7th Cir. 1972].) Later, in McCarthy v. Philadelphia Civil Serv. Comm’n, 424 U.S. 645, 47 L.Ed.2d 366, 96 S.Ct. 1154 (1976) (Per Curiam), the United States Supreme Court affirmed the decision of the Pennsylvania Commonwealth Court (McCarthy, Aplnt. v. Phila. Civ. Svc. Com., supra) in a residency requirement case, stating:
“We have not, however, specifically addressed the contention made by appellant in this case that his constitutionally recognized right to travel interstate as defined in Shapiro v. Thompson, 394 U.S. 618 (1969); Dunn v. Blumstein, 405 U.S. 330 (1972); and Memorial Hospital v. Maricopa County, 415 U.S. 250 (1974), is impaired. Each of those cases involved a statutory requirement of residence in the State for at least one year before becoming eligible either to vote, as in Dunn, or to receive welfare benefits, as in Shapiro and Memorial Hospital. Neither in those cases, nor in any others, have we questioned the validity of a condition placed upon municipal employment that a person be a resident at the time of his application. In this case appellant claims a constitutional right to be employed by the city of Philadelphia while he is living elsewhere. There is no support in our cases for such a claim.” (pp. 646-47.)
Applying the “rational basis” test which has been customarily applied in cases of this nature (see, Wardwell v. Bd. of Ed. of City School Dist., Etc., 529 F.2d 625, 628 [6th Cir. 1976]; Wright v. City of Jackson, Mississippi, 506 F.2d 900, 903 [5th Cir. 1975]; Miller v. Krawczyk, 414 F. Supp. 998, 1001 [E.D. Wis. 1976]; Ector v. City of Torrance, 10 Cal. 3d 129, 135, 109 Cal. Rptr. 849, 514 P.2d 433 [1973], cert. denied 415 U.S. 935, 39 L.Ed.2d 493, 94 S.Ct. 1451 [1974]; City of Memphis v. Intern. Broth. of Elec. Wkrs. U., 545 S.W.2d 98, 102 [Tenn. 1976]), we are only required to find that the legislation bears a reasonable relationship to the attainment of some legitimate state goal.
Various reasons have been given for enacting residency requirements. In Ector v. City of Torrance, supra at 135, the court provided several purposes:
“. • • [T]he promotion of ethnic balance in the community; reduction in high unemployment rates of inner-city minority groups; improvement of relations between such groups and city employees; enhancement of the quality of employee performance by greater personal knowledge of the city’s conditions and by a feeling of greater personal stake in the city’s progress; diminution of absenteeism and tardiness among municipal personnel; ready availability of trained manpower in emergency situations; and the general economic benefits flowing from local expenditure of employees’ salaries. . . .”
The city justifies its residency requirement on the “emergency availability” and “salary expenditure” criteria; however, we are not limited to those choices. Were that the case the city’s classification might be endangered on equal protection grounds because it does not require all employees of the city to reside therein. We feel the proper justification for the city’s residency requirement lies in an examination of the class of employees required to live in the city under Charter Ordinance No. 22. The group involved is narrowly drawn to include only department heads and major officers. All other employees are excluded. We feel the city is justified in requiring major officeholders to have a commitment and involvement with the city, its taxpayers and its activities in order to hold such an office. Thus, we see many criteria set forth in Ector applicable to the residency requirement.
There is no impermissible restriction on the right to travel in requiring city employees to live within the city limits. (Wardwell v. Bd. of Ed. of City School Dist., Etc., supra; Wright v. City of Jackson, Mississippi, supra; Miller v. Krawczyk, supra; Ector v. City of Torrance, supra; D.P.O.A. v. City of Detroit, supra; Hattiesburg Firef’t’rs Local 184 v. City of Hattiesburg, 263 So. 2d 767 [Miss. 1972]; Abrahams v. Civ. Serv. Comm., 65 N.J. 61, 319 A.2d 483 [1974]; Trainor v. City of Newark, 145 N.J. Super. 466, 368 A.2d 381 [1976]; Mandelbaum v. State Dept. of Civil Service, 142 N.J. Super. 323, 361 A.2d 560 [1976].)
The equal protection clause does not prohibit differentiation between two classes of persons if there is a rational difference for the distinction in treatment accorded them. (State ex rel. Schneider v. Liggett, supra.) In Rinaldi v. Yeager, 384 U.S. 305, 16 L.Ed.2d 577, 86 S.Ct. 1497 (1966), the Court stated:
“. . . Hence, legislation may impose special burdens upon defined classes in order to achieve permissible ends. But the Equal Protection Clause does require that, in defining a class subject to legislation, the distinctions that are drawn have ‘some relevance to the purpose for which the classification is made.’ [Citations omitted.]” (p. 309.)
The question raised by plaintiff is whether the equal protection clause is violated because Charter Ordinance No. 22 applies to him, but not to firemen and policemen. If the “emergency availability” rationale were the only justification for requiring residency, plaintiff might prevail; but, as we stated earlier, we are allowed to consider any valid reason for the residency requirement applying to the class of persons of which plaintiff is a member. We feel it is a legislatively permissible goal to require high level city officials, such as those enumerated in Charter Ordinance No. 22, to reside in the city, without making the same requirement of all other employees. We perceive a difference between management employees and other employees.
Although we disagree with the trial court on the constitutional issue, we are not reversing. We hold that as a matter of law the city was estopped from dismissing plaintiff at the time he was terminated. In United American State Bank & Trust Co. v. Wild West Chrysler Plymouth, Inc., 221 Kan. 523, 527, 561 P.2d 792 (1977), we stated:
“. . . Equitable estoppel is the effect of the voluntary conduct of a person whereby he is precluded, both at law and in equity, from asserting rights against another person relying on such conduct. A party asserting equitable estoppel must show that another party, by its acts, representations, admissions, or silence when it had a duty to speak, induced it to believe certain facts existed. It must also show it rightfully relied and acted upon such belief and would now be prejudiced if the other party were permitted to deny the existence of such facts. (Wichita Federal Savings & Loan Ass’n v. Jones, 155 Kan. 821, 130 P.2d 556; 31 C.J.S., Estoppel, § 59, p. 367.)”
On several occasions this court has applied the doctrine of equitable estoppel against cities where the facts of the case so required. (See, Skaggs v. City of Pratt, 183 Kan. 424, 327 P.2d 1083 [1958]; Derby Oil Co. v. City of Oxford, 134 Kan. 59, 4 P.2d 435 [1931]; State, ex rel., v. City of Hutchinson, 103 Kan. 370, 175 Pac. 147 [1918]; City of Belleville v. Hallowell, 41 Kan. 192, 21 Pac. 105 [1887]; City of Leavenworth v. Laing, 6 Kan. 274 [1870].)
In Benson v. City of DeSoto, 212 Kan. 415, 422, 510 P.2d 1281 (1973), it was said:
“. . . It is generally recognized that with respect to matters within the scope of its power and authority to act, a municipal corporation is subject to the rules of estoppel in those cases wherein equity and justice require their application and where such application will not interfere with the proper exercise of governmental functions; but where there is an entire absence of such power on its part, there can be no estoppel as against the municipality or its inhabitants. (28 Am. Jur. 2d, Estoppel and Waiver, § 128.) . . .”
The facts in this case require the application of the doctrine of equitable estoppel against the city. The record clearly and unequivocally shows that the commissioners told plaintiff his job would not be in jeopardy until the city passed an ordinance defining “residence” and until he had been given a reasonable time thereafter to comply with the newly enacted ordinance. Later, without advance notice or warning, the city terminated plaintiff for failure to maintain a Topeka residence and the proposed ordinance had never been passed. The minutes of the commission meeting of May 4, 1976, indicate plaintiff relied on the prior assurances by the city and therefore had not moved into the city, and was surprised by the change in the city’s position. While it may not have been necessary for the city to enact the ordinance defining “residence,” once it told plaintiff it was going to do so and he would have a reasonable time to comply with it after enactment, the city was bound by those statements when plaintiff relied upon them.
The decision of the trial court, although based upon the wrong reason, was correct in ruling plaintiff’s dismissal to be improper. The judgment on the liability of the city will not be disturbed. (Boldridge v. Estate of Keimig, 222 Kan. 280, 288, 564 P.2d 497 [1977].)
Because of what we have heretofore held, it is unnecessary to consider the city’s contention that it should have been granted summary judgment.
The city argues there should have been a hearing on the issue of damages because the issue was not reached by the motion for summary judgment. It is a general rule that a party is entitled to recover only his actual damages less those he might have reasonably prevented. (See, Iseman v. Kansas Gas & Electric Co., 222 Kan. 644, 647, 567 P.2d 856 [1977]; Theis v. duPont, Glore Forgan Inc., 212 Kan. 301, 510 P.2d 1212 [1973]; In re Estate of Stannard, 179 Kan. 394, 295 P.2d 610 [1956].) In a case involving wrongful discharge from employment the proper measure of damages is the amount the salary for the period would have been less the amount plaintiff earned, or which with reasonable diligence he could have earned, had he applied the same ability and devotion in a comparable job. (Haskell v. Stryker, 135 Kan. 611, 614, 11 P.2d 700 [1932]; Bench v. Hayes Equipment Mfg. Co., 134 Kan. 865, 8 P.2d 346 [1932]; Griffin v. Oklahoma Natural Gas Corp., 132 Kan. 843, 297 Pac. 662 [1931].) For cases applying the rule to public officials, see, McReynolds v. Civil Service Com., 18 Ill. App. 3d 1062, 311 N.E.2d 308 (1974); Matter of Brayer v. Lapple, 52 A.D.2d 1034, 384 N.Y.S.2d 584 (1976); Smith v. Helbraun, 24 A.D.2d 518, 261 N.Y.S.2d 829 (1965); Sutliffe v. City of New York, 132 App. Div. 831, 117 N.Y.S. 813 (1909).
Because the issue of damages was not reached by the motion for summary judgment the case should be remanded to the trial court with directions to hold a hearing on this issue.
Finally, plaintiff argues he should have been granted attorney’s fees as costs in the action. Generally, attorney’s fees are not allowable as damages in the absence of a statute. (Will v. City of Herington, 205 Kan. 422, 424, 469 P.2d 256 [1970]; Barten v. Turkey Creek Watershed Joint District No. 32, 200 Kan. 489, 510, 438 P.2d 732 [1968]; Ablah v. Eyman, 188 Kan. 665, 682, 365 P.2d 181 [1961].) Exercising its equity jurisdiction this court has on occasion taken exception to this rule. In Barten, this court approved an allowance of attorney’s fees on the theory the District had acted in “bad faith.” Plaintiff urges us to award fees here on the same theory. We have examined the record and conclude the case before us does not compare with Barten. The mere fact a party loses a lawsuit does not justify imposing attorney’s fees upon him as costs. Likewise, there is no showing the city was totally unreasonable in its acts under all the circumstances. The district court was correct in denying attorney’s fees.
In conclusion, we hold Charter Ordinance No. 22 is not unconstitutional but the city was estopped from dismissing plaintiff from his position as chief building inspector because of the acts of the commissioners. The decision of the trial court ordering plaintiff’s reinstatement is affirmed and the case is remanded to the trial court for a hearing on the issue of plaintiff’s damages.
The judgment is affirmed in part and reversed in part and remanded with directions.
McFarland, J., not participating. | [
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The opinion of the court was delivered by
Miller, J.:
This is a direct appeal by Silas Taylor, Jr., following his conviction by a jury of aggravated robbery in violation of K.S.A. 21-3427. The basis for the only error claimed lies in the prosecutor’s cross-examination of the defendant.
The state’s evidence was that the defendant and another man, Julius Richardson, came to a used car lot in Topeka on May 10, 1976. Taylor and Richardson came together, and together they looked at several cars. Taylor then went into the office and engaged Lloyd Ferguson, a salesman, in conversation. Ferguson knew the defendant, but he was not acquainted with Richardson. Richardson soon entered, pulled a handgun, and robbed Ferguson of some five hundred dollars. Richardson then ran out the door, closely followed by Taylor; both men jumped in a waiting automobile, driven by a third man, and made their escape.
Taylor testified on direct examination that he went to the used car lot by himself. He was not with Richardson, and did not know him. Taylor was in the office, talking to Ferguson, when Richardson entered, pulled a gun, and robbed Ferguson. Richardson then turned to Taylor and asked, “You got any money?” Taylor replied, “I ain’t got no money.” Richardson then told Taylor to “Go,” and Taylor left. He did not get into a waiting car, but left the scene on foot. He was scared and he ran. He was not with Richardson, neither came nor left with him, and had nothing to do with the robbery.
Taylor’s cross-examination proceeded as follows:
“Q. What your testimony, is, then, that you are a witness to a robbery, just an innocent bystander. Is that correct?
“A. Yes, sir.
“Q. Did you report it to the police?
“A. No, sir.
“Q. Why?
“A. Scared.
“Q. An attempted robbery was pulled on you too; wasn’t it?
“A. Oh, yes, sir.
“Q. . . . Why were you scared?
“A. Just scared.
“Q. Of what?
“A. I don’t know.
. “Q. Did you see anybody on your way out the door on the car lot?
“A. There was a couple of people in the car lot.
“Q. Did you see them?
“A. Yes, sir.
“Q. Did you warn them that there was a robbery going on?
“A. No, sir.
“Q. Didn’t tell anybody; did you?
“A. No, sir.
“Q. First time today you’ve told anybody that you saw a robbery going on; isn’t it?
“[Defense counsel:] Object to that, Your Honor.
“THE COURT: The question, the first time he told anybody. Is that the objection?
“[Defense counsel:] Yes, Your Honor.
“THE COURT: Well, you can ask the question—
“Q. Is this the first time today you’ve told anybody that question — that answer about the robbery?
“A. Yes, sir.”
Defense counsel moved for a mistrial, contending that the state had cross-examined the defendant about his pretrial silence in violation of the rules laid down in Doyle v. Ohio, 426 U.S. 610, 49 L.Ed.2d 91, 96 S.Ct. 2240 (1976) and United States v. Hale, 422 U.S. 171, 45 L.Ed.2d 99, 95 S.Ct. 2133 (1975). In overruling the motion the trial court said:
“It’s very clear from the testimony that this is not a situation when the defendant was immediately arrested or at the site arrested, and any comment he would have made would have had to have been in an arrest or custody situation. The testimony is that he contends that he was an almost victim of the crime himself; he just happened to be present; that immediately upon leaving, his testimony was there were two people whereas other testimony was that there were three. In addition, there was a period of some 17 days . . . before he was arrested. In that period of time, he went over and talked to one of the other witnesses, Scofield, and was irritated because Scofield had implicated him and apparently didn’t say that he was an almost victim. There were various opportunities that he could have talked to other people about his exact role anytime or could have called the police or could have reported himself the victim; and it does not infringe on his right to remain silent because these are just things before he was under arrest or in custody. So the motion will be overruled.”
In Hale, supra, the defendant was cross-examined about his failure to offer exculpatory information to the police at the time of his arrest. Noting that he was in custody and had been given the Miranda warnings, the Supreme Court said:
“. . . [W]e hold that under the circumstances of this case it was prejudicial error for the trial court to permit cross-examination of respondent concerning his silence during police interrogation . . . .” (p. 181.) (Emphasis supplied.)
Doyle, supra, involved similar facts. The defendant there had been cross-examined about his failure to tell his story to the arresting officer. The court held:
“. . . [T]he use for impeachment purposes of petitioners’ silence, at the time of arrest and after receiving Miranda warnings, violated the Due Process Clause of the Fourteenth Amendment. . . .” (p. 619.)
We followed Doyle in State v. Mims, 220 Kan. 726, 556 P.2d 387, where we said:
“We interpret the decision of the United States Supreme Court in Doyle to settle the question so as to make it constitutionally impermissible for a state prosecutor to impeach a defendant’s exculpatory story told for the first time at the trial by cross-examining him as to his post-arrest silence after receiving the warnings required by Miranda . . . .” (p. 730.)
The rule was further discussed and applied in State v. Heath, 222 Kan. 50, 563 P.2d 418; State v. Clark, 223 Kan. 83, 574 P.2d 174; and State v. Jordan, 223 Kan. 197, 574 P.2d 194.
Defendant calls our attention to People v. Sheperd, 37 Colo. App. 336, 551 P.2d 210 (1976). The facts of that case, however, distinguish it from the case at hand. Sheperd was charged with forcible rape; the defense was consent. During cross-examination of the defendant, an objection was interposed by defense counsel before the district attorney was able to complete the following question:
“ ‘You didn’t go turn yourself into the police to try and straighten the situation — ’ ” (p. 337.)
On appeal, Sheperd contended that the trial court erred in denying his motion for a mistrial, even though his objection to the question was sustained. The Colorado Court of Appeals said:
“. . . Silence, in the form, of failing to appear voluntarily before the police and give a statement, prior to being arrested, is of such little probative value that it should not be introduced to impeach defendant’s trial testimony as to his innocence. . . .” (p. 337.) (Emphasis added.)
The court held that while the reference to silence was improper, it was not prejudicial under the circumstances, and was not reversible error.
Taylor, unlike Sheperd, claims that he was the victim upon whom the offense was perpetrated. Cross-examination disclosed that Taylor did not act as a normal individual would under the claimed circumstances. He did not shout warnings to or seek aid from bystanders; he did not raise the “hue and cry” of one who has been held up by an armed robber; and as the trial court pointed out, he did not tell a friend, who accused him of committing the robbery, that he himself had been robbed. An accused has no duty to volunteer his exculpatory story following arrest (State v. Clark, supra), and the prosecution may not introduce evidence, cross-examine, comment, argue, or otherwise emphasize the failure of an accused to make such a disclosure upon or following his arrest.
However, the rule does not preclude the state from attempting to show, upon cross-examination, that the defendant’s actions and responses at and after the occurrence, and long prior to arrest, were not the usual actions and responses of one who has been robbed. Had Ferguson made no outcry, the defense would indeed be lax if it failed to inquire as to his failure to do so. Although the prosecutor’s final question covered all time since the occurrence, and thus included the time the defendant was in custody, there was no emphasis on the latter period and no argument was made to the jury that the defendant failed to tell his story to the officers following arrest or while in custody.
Under the circumstances, we think the defendant’s failure to alert others that an armed robbery was in progress, and his failure to tell others that someone attempted to rob him, is of probative value and was properly admitted in evidence. That the final question was broad does not, under the circumstances, constitute error of constitutional or prejudicial proportions. The questioning really had nothing to do with defendant’s silence after arrest and after receiving the Miranda warnings. His silence at that stage was not emphasized, and was not used for impeachment purposes contrary to Doyle.
What is constitutionally prohibited under Doyle is the prosecution’s use, for impeachment, of the defendant’s failure to respond to police interrogation- — -his silence after receiving the Miranda warnings. Pre-arrest statements or admissions made by a defendant to non-governmental witnesses are not constitutionally protected. State v. Little, 201 Kan. 94, 98, 439 P.2d 387. Likewise, the constitution does not protect an accused’s pre-arrest silence in the presence of persons who are neither governmental officials or their agents. The probative value of the statements, admissions, or silence, is a matter to be determined by the trial court.
The judgment is affirmed.
McFarland, J., not participating. | [
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Per Curiam:
This is an appeal by the State of Kansas from a judgment entered by the district court of Shawnee County, determining that the defendant, Jerry Hill, is not engaged in the unauthorized practice of law, and denying injunctive relief.
The district court’s order, omitting formal portions, is as follows:
“The action is brought by the state, on the relation of the Attorney General, against the defendant seeking a declaratory judgment determining that the defendant is engaged in the unauthorized practice of law and an injunction against the defendant prohibiting him from doing certain acts in conjunction therewith.
“The facts are not really disputed and may be summarized as follows. The defendant, under a type of franchise arrangement, buys kits for resale purporting to contain all forms needed for the filing and obtaining of a divorce in Kansas, sample forms filled out, and instructions, both written and via tape recording on the use of the kit. Defendant then advertises said kits and sells same at a mark-up. He sells them for $48.00. He has not represented himself to be an attorney and has advised at least some customers that he was not. The tape is played by the defendant to customers to answer their questions and ‘sell’ them on the kit. Defendant did not participate in the preparation of the kit. The forms or samples are not tailor made for any customer and the customer has the responsibility for completing same. A refund is to be paid if a divorce is not granted due to insufficiencies of the kit. The tape contains a direct ‘sales pitch’ and encourages people to buy the same and avoid ‘high legal fees’ of $350.00 to $500.00.
“The court must note that there is little doubt but that many people can get into a great deal of difficulty with a do-it-yourself divorce. This is true of do-it-yourself electricians, home remodelers, plumbers, auto mechanics, health treatments, etc. The kit in question does not even contain the temporary support, custody, alimony, etc. forms which are the only acceptable forms for same in this Judicial District. Tax consequences of a divorce and many other areas are not adequately dealt with by the kit. However, whether the kit is well-prepared, adequate for purpose intended, or ‘worth the money’ are not issues in this case. As the Supreme Court said in State, ex rel., v. Schmitt, 174 Kan. 581 which is also an unauthorized practice of law case:
“ ‘We are not concerned with the legal sufficiency of this document nor whether it accomplishes the results claimed for it, and therefore do not review it.’
“If one sells a product that is not fit for its intended purpose, perpetrates a fraud in sales practices, misrepresents products, etc., one may expose himself to various actions, but none of these types of activities are issues in this case. The sole issue before this court in this case is whether or not the defendant engages in or has engaged in the unauthorized practice of law.
“The defendant contends he is selling an inanimate object; to wit; a book. The book is not bound but defendant contends it is still legally a book. In essence, defendant places his activity in the same class as one who would purchase for resale, promote, and resell at a profit the well-known and highly controversial book, ‘How to Avoid Probate’ by Norman F. Dacey.
“The definition of the authorized practice of law has never been concise as the circumstances in the individual cases defy a simple and direct definitive statement. State ex rel., v. Perkins, 138 Kan. 899 states:
“ ‘One who confers with clients, advises them as to their legal rights, and then takes the business to an attorney and arranges with him to look after it in court is engaged in the practice of law.’
“In the Schmitt case, supra, defendant was selling a Trust service for fees up to $3,000.00. The value of the assets of the prospective trust creator had a bearing on the fee. The court found the form for the trust indenture could not cost over $10.00. From the price charged, one could assume that something more than a form was being sold. The court found the defendant personally gave legal opinions as to tax effects and on other complex legal questions to customers and prospective customers.
“111 A.L.R. 19, 125 A.L.R. 1173, and 151 A.L.R. 781 contain exhaustive discussions of the unlawful practice of law. Some of the factors involved as to whether drawing a document is or is not such a practice are if a fee is charged for the drawing of it; whether it is simple or requires legal training, whether such a drawing is incidental to another business. Generally preparing income tax returns and real estate form contracts are held not to be the practice of law. The main general test in unlawful practice of law cases seems to be whether or not an attorney-client relationship exists. That is, whether the person whose conduct is under scrutiny represented or implied he had legal knowledge beyond that of a layman and provided ‘professional’ assistance to a ‘client’. The customer pays for the ‘skill’, ‘special knowledge’ or ‘expertise’ of the seller. There is a personalization of services provided. That is, the customer provides the data or raw material and the ‘expert’ assembles, compiles, organizes, etc. and using the ‘expertise’ (real or imagined) provides a legal service.
“In the case at hand the defendant never held himself out as an expert on anything. He has a product to sell and plays a recorded ‘sales pitch’ that is not made by him but by the maker of the kit. Customer’s and prospective customer’s questions are theoretically to be answered by the tape and printed instructions. The defendant personally gives no legal advice. He may encourage customers to listen to the tape and/or buy the kit, but he has no attorney-client relationship with the customers.
“The court hereby finds and concludes on the basis of the evidence that the defendant is not engaged in the unlawful practice of law. This is not, in any way, to mean that the product sold is found to be wholesome, harmless, adequate, worthwhile, useful, etc., but only that the defendant is not practicing law. The injunction is denied. . .
Chief Justice Schroeder, Justice Fromme, and Justice Holmes would reverse; Justices Owsley, Prager, and Miller would affirm.
The judgment of the trial court is therefore affirmed by an equally divided court.
McFarland, J., not participating. | [
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The opinion of the court was delivered by
Fromme, J.:
Ivan W. Treadwell was found guilty of aggravated robbery (K.S.A. 21-3427). The charge stemmed from a robbery at the Leahy Liquor Store in Wichita on November 4, 1976. Two men entered the store at 9:45 p.m. on that date and ordered Joseph Catron to put money in a sack. The taller of the two men held a gun on Mr. Catron while he turned over $344.00 in currency. The man with the gun was identified as David Wright but Catron was unable to make a positive identification of the defendant Tread-well. The two men made their escape.
A month later the defendant and Wright were stopped by the police for routine questioning in Phoenix, Arizona, and a vehicle check disclosed the vehicle they were driving had been stolen in Wichita. They were arrested and interrogated by Officers Camp bell and Morales in Phoenix. This interview was recorded on tape, and in the course of the interview defendant admitted robbing the Leahy Liquor Store and attempting to rob another liquor store in Wichita. The two suspects were returned to Kansas for trial. During the trial the defendant retracted his confession and denied participation in the Leahy robbery.
The defendant-appellant claims error because of the admission in evidence of the recorded confession. Three reasons are alleged as the basis for such claim. He first claims the statement was not freely and voluntarily given. As a basis for this claim he points to his testimony that he had been drinking intoxicating liquor, taking drugs and had no recollection of giving the statement. In addition he points to the testimony of Officer Campbell that the recorder was not turned on throughout the interrogation. Appellant claims the state failed to produce evidence concerning the unrecorded intervals which would have shown he was deprived of his free will. The unrecorded intervals in the tape will be discussed later.
The trial court conducted the required hearing to determine the voluntariness of the confession. See K.S.A. 22-3215 for such requirement. Officer Campbell identified the tape on which the statement was recorded. He testified that everything of substance was on the tape and any conversations not on the tape were not related to the crimes discussed. He further testified that defendant appeared normal when the statement was recorded and showed no physical or mental signs of liquor or drugs.
The trial court listened to the tape and found that the appellant had been properly advised and understood his constitutional rights before the statement was recorded. The court further found the confession was freely and voluntarily given and that appellant was under no duress or coercion, either mental or physical.
As stated in State v. Duncan, 221 Kan. 714, 720, 562 P.2d 84:
“. . . The burden of proving the admissibility of a statement or confession is upon the prosecution. (K.S.A. 22-3215[4].) On motion it is the duty of the trial court, before admitting a purported confession into evidence, to conduct a hearing separate and apart from the jury to determine from the evidence as a preliminary matter whether the confession was freely and voluntarily made by the accused. (State v. Wilson, [220 Kan. 341, 552 P.2d 931] supra.) The inquiry is to determine whether the statement or confession was voluntary, and the determination must be based upon a consideration of the totality of the circumstances bearing on voluntariness. If the court determines that the statement or confession was the product of a rational intellect and a free will the statement or confession should be admitted into evidence. (State v. Milow, 199 Kan. 576, 433 P.2d 538; State v. Wilson, supra.)”
In State v. Kanive, 221 Kan. 34, 558 P.2d 1075, the court stated the standard for review:
“When a trial court conducts a full pre-trial hearing on the admissibility of an extrajudicial statement by an accused, determines the statement was freely, voluntarily and knowingly given and admits the statement into evidence at the trial, the appellate court should accept that determination if it is supported by substantial competent evidence.” (Syl. 5.)
Sufficient evidence was introduced at a separate hearing to establish the voluntariness and to justify the admission of the taped confession at the trial.
The second reason alleged for claiming the taped confession was improperly admitted in evidence is lack of a sufficient chain of custody.
Officer Campbell testified that after the confession was completed the tape was given to a stenographer in the criminal investigation bureau. It was then given to the robbery detail. A Detective Herskovitz in the detective division gave it to a Detective Gordo, who kept it in his desk until Officer Campbell brought it to Wichita for the preliminary hearing. After it was entered as evidence at the hearing it was given to Detective Zortman, and Detective Campbell could not attest to its whereabouts after that. Officer Campbell testified he marked the original tape with his signature for identification purposes. The tape was in a standard cassette. He identified the tape cassette at the trial as being the one taken in Phoenix.
The state’s failure to produce the other witnesses in this long chain of police custody is not fatal. The admissibility of a statement or confession is within the sound discretion of the trial court. See State v. Robinson, 203 Kan. 304, 311, 454 P.2d 527, and State v. Patterson, 200 Kan. 176, 181, 434 P.2d 808. The state made a sufficient showing that there had been no material alterations in the tape under the requirements relating to physical evidence as set forth in State v. Beard, 220 Kan. 580, 552 P.2d 900.
In 1 Underhill’s Criminal Evidence, 6th ed., § 115, the author states:
“Where objects have been kept in police custody the chain of possession must be reasonably complete, but this rule is relaxed where there is positive identifi cation of the object, and in any event there is no requirement that everyone who had access to the object be called to testify.” (p. 261.)
The whereabouts of the tape was satisfactorily accounted for by Officer Campbell; it was definitely identified and there was no allegation or evidence that the tape had been altered or in any way mutilated.
When objects of physical evidence have been kept in police custody the chain of possession must be reasonably complete, but this rule may be relaxed when the object is positively identified at the trial and it is established the object remains unaltered.
The point is without merit.
The third reason alleged for claiming the taped confession was improperly admitted in evidence apparently has not been previously raised or considered by this court. It relates to unrecorded intervals in the tape.
At the hearing to suppress the tape recording the testimony of Officer Campbell established that, although the interrogation of defendant lasted an hour and ten minutes, the taped statement covered only twenty minutes. The tape revealed that there were sixteen breaks in the continuity where the tape recorder had been turned off, and there was a rather long pause near the end of the tape. Officer Campbell testified that the tape recorder was not operated continuously during this interrogation. He explained that this was the first recorded statement he had conducted and that he had turned the recorder off at various times while he was formulating his questions. Morales, the other officer, talked to defendant during these unrecorded intervals.
In State v. Wilson, 220 Kan. 341, 552 P.2d 931, objections were lodged to the duplication of evidence involved in the use of both a video recording of a confession and an ordinary audio recording taken separately but simultaneously. In that case the sound portion of the video recording was inaudible because of a malfunction in the machine. The audio recording was taken on a separate machine as a backup precaution. It was held when the authenticity of both tape recordings was established and found to be of sufficient clarity and quality to assist the jury in its deliberations both were properly admitted in evidence, even though portions of the tapes were not first quality productions of what was said and done. It was held their admissibility rested largely in the discretion of the trial court.
In our present case we have omissions where portions of the interrogation were not recorded. The subject has been addressed in various other jurisdictions and is covered by an annotation, Admissibility of Inaudible Sound Recording, 57 A.L.R.3d 746. Generally it is held a relevant sound recording which is inaudible at times or which reproduces only a portion of a statement is admissible in evidence unless the inaudible portions or the omissions are so substantial they render the recording untrustworthy as a whole. (United States v. Jones, 540 F.2d 465 [10th Cir. 1976]; United States v. Hodges, 480 F.2d 229 [10th Cir. 1973]; People v. Porter, 105 Cal. App. 2d 324, 331, 233 P.2d 102, 107; People v. Curry, 192 Cal. App. 2d 664, 13 Cal. Rptr. 596.)
Under certain conditions recorded statements which contain a high percentage of inaudible or unrecorded intervals, not satisfactorily accounted for, have been excluded from evidence as being untrustworthy. See United States v. Frazier, 479 F.2d 983 (2nd Cir. 1973); People v. Velella, 216 N.Y.S.2d 488, 28 Misc. 2d 579; and People v. Odneal, 559 P.2d 230 (Colo. 1977).
In our present case the unrecorded intervals in the tape were explained to the satisfaction of the trial court. The sentences in the recording followed in logical sequence. No specific inaccuracy in the tape was pointed out. No claim was made that the original tape was altered. The trial court found that the recorded tape was trustworthy as a whole and of sufficient clarity and quality to assist the jury in its deliberations. We find no abuse of the trial court’s discretion in admitting this tape.
The final point raised by appellant concerns a portion of the recorded tape where defendant referred to another crime which he and Wright had attempted. During the interrogation defendant told of the attempt by him and Wright to rob another liquor store after the Leahy robbery. The attempted robbery had been foiled when a woman employee was able to call the police after she became suspicious of the two men.
The rules relating to the admission of evidence of other crimes under K.S.A. 60-455 have been discussed by this court on many occasions. The guidelines are set forth in State v. Faulkner, 220 Kan. 153, 551 P.2d 1247, and State v. Johnson, 222 Kan. 465, Syl. ¶ 2, 565 P.2d 993. At the trial appellant retracted his confession and obtained testimony from his friend Wright that appellant was not with him on the day in question. Wright testified they had been living together until a day or two before the Leahy robbery at which time appellant moved out. He further testified appellant moved back with him two or three days after the Leahy robbery. Later the two took a vacation in Arizona. Although he maintained that his accomplice in the Leahy robbery was not the appellant, he refused to disclose the name of said accomplice. The identity of the person with Wright at the time of the Leahy robbery was definitely in issue. Since the taped statement was given by appellant it is strong evidence that appellant and Wright participated in both crimes and remained together until they were picked up in Phoenix. The probative force of such a statement concerning the similar crime participated in by the same parties after the Leahy robbery can hardly be questioned. The similarities of the two crimes and common participation by these two persons established the required relevancy on issue of identity. The additional crime was part of the sequence of events involving both appellant and Wright from the time of the Leahy Liquor Store robbery until they were arrested in Arizona a month later. There was no abuse of discretion by the trial judge in admitting the entire taped statement. See State v. Stephenson, 191 Kan. 424, 427-430, 381 P.2d 335, and State v. Taylor, 198 Kan. 290, 424 P.2d 612.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Schroeder, C.J.:
This is an appeal in a joint criminal action from a jury verdict which found Nathaniel Watie, Linda Heard and Junious Heard (defendants-appellants) each guilty of two counts of aggravated robbery (K.S.A. 21-3427) and one count of conspiracy to commit aggravated robbery (K.S.A. 21-3302).
Various trial errors are assigned on appeal for reversal of the convictions and judgment.
A brief summary of the facts leading to the appellants’ arrest and trial will suffice. On the evening of April 3, 1975, a car was taken at gunpoint from Karen Beard at Nemer’s Food Market on East Central Street in Wichita, Kansas, by a young black man. Ms. Beard later identified the appellant Junious Heard as the man.
At approximately 6:45 p.m. that same evening, Eugene P. Wetzel Jewelers, Inc., in Wichita was robbed at gunpoint by four black men of cash and jewelry valued in excess of $100,000. Shortly thereafter the men were seen getting into Karen Beard’s stolen car and leaving the vicinity of the crime. Ms. Beard’s car was later recovered and was found to contain a ring identified by Mr. Wetzel as one taken in the robbery. Three employees present in the Wetzel store during the robbery identified the appellants Nathaniel Watie and Junious Heard as the robbers.
Eventually, all three appellants along with Terry Beasley, Linda Heard’s brother, were arrested by the Wichita police on April 23, 1975. Another brother, Jerry Beasley, was later arrested in July of 1975 and had a separate preliminary hearing on August 29, 1975. At both the appellants’ preliminary hearing and Jerry Beasley’s preliminary hearing, Bulynda Roxanna Ricks, a/k/a Linda Lewis, testified that the appellant Linda Heard had attempted to sell her stolen diamonds on April 4, 1975. Linda Lewis stated the appellant was a longtime acquaintance who had admitted during their conversation that “me and my brothers robbed this place” referring to the Wetzel store. The appellants were subsequently bound over for trial.
Their cases were consolidated for trial on November 3, 1975, before the Honorable David Calvert. At the time of the trial, Linda Lewis was in Fort Worth, Texas, in federal custody undergoing a drug treatment program. After the state made several unsuccessful attempts to secure her presence as a witness, the trial court found Linda Lewis was unavailable pursuant to K.S.A. 60-459(g)(4) and allowed her testimony from the preliminary hearing to be read at the trial.
Each of the appellants testified in his own behalf and presented an alibi defense. The appellant Watie testified he was playing cards at his sister’s house and with friends throughout the day. His story was corroborated by his sister and wife. The Heards testified they were buying drugs at a neighborhood store during the hours of the robberies.
Nevertheless, the jury found each appellant guilty of aggravated robbery and conspiracy. Their motions for new trial were denied and this appeal ensued.
The appellants contend the trial court erred in finding Linda Lewis was unavailable as a witness for purposes of the confrontation clause of the United States Constitution and in thereby permitting the reading of the preliminary transcripts of her testimony.
A brief discussion of the facts is necessary. During the week preceding the trial the state issued subpoenas for its witnesses. After checking with her parole officer the state prosecutor, Mr. Arbuckle, issued a subpoena for Linda Lewis at her last known address. On the morning of trial Mr. Arbuckle checked his subpoena list and discovered Linda Lewis had not been found. Later that afternoon after the trial had begun, Mr. Arbuckle was told Linda Lewis was in the custody of federal officials in Fort Worth, Texas, undergoing a narcotics evaluation. The next morning Mr. Arbuckle had an application for a writ of habeas corpus ad testificandum drawn up and delivered to a United States Marshal. Later that day federal officials informed the state they would not comply with the order because it was not within Linda Lewis’ best interests to be taken out of her drug program. Mr. Arbuckle then contacted Federal Judge Frank G. Theis who had control of Linda Lewis’ case in the federal court. Judge Theis refused to order Linda Lewis’ return. The presiding district court judge, Honorable David Calvert, also contacted Judge Theis and unsuccessfully requested Linda Lewis’ return. At this time the state requested the testimony Linda Lewis gave in the appellants’ preliminary hearings be admitted at the trial. The trial court then found Linda Lewis was unavailable in accordance with K.S.A. 60-459(g)(4) and allowed the testimony.
The appellants assert Linda Lewis was not unavailable because the mere absence of a witness from the jurisdiction because she is in prison does not provide a sufficient ground for suspension of a defendant’s right of confrontation.
K.S.A. 60-459(g) defines the term “unavailable as a witness” as follows:
“ ‘Unavailable as a witness’ includes situations where the witness is . . . (4) absent beyond the jurisdiction of the court to compel appearance by its process. . .
If the trial court finds the witness is unavailable it may allow the use of the testimony of the witness given at a preliminary hearing in accordance with K.S.A. 60-460(c) as an exception to the hearsay rule.
The standards for determining if a witness is unavailable for purposes of a criminal trial were recently discussed in State v. Alderdice, 221 Kan. 684, 561 P.2d 845. Our court reiterated the so-called “reasonable diligence rule” holding the prosecutor must make a good faith effort to obtain the witness’s presence at trial. The court also addressed the confrontation issue stating:
. . We have long held that preliminary hearing transcripts may be admitted upon trial under similar circumstances, and that the right of cross-examination initially afforded provides substantial compliance with the purposes behind the confrontation requirement. . . (p. 687.)
Of course, each case turns on its own facts and circumstances. (State v. Steward, 219 Kan. 256, 547 P.2d 773; and State v. Kirk, 211 Kan. 165, 169, 505 P.2d 619.) Here the prosecution did everything possible to obtain the presence of the witness. The appellants were each afforded an opportunity to cross-examine Linda Lewis at their preliminary hearing, and they were each represented by the same counsel at both the trial and the preliminary hearing. Clearly no error exists in the admission of the testimony.
Furthermore, the finding of unavailability of the witness by the trial court was entirely within its discretion. The appellants have not alleged or shown an abuse of that discretion; thus, the finding of unavailability must stand. (State v. Mims, 222 Kan. 335, 338, 564 P.2d 531.)
The appellants, Linda Beasley Heard and Junious Heard, further contend their rights were prejudiced because the testimony of Linda Lewis was read to the jury again at its request. This contention is without merit. If the jury requests the trial court to have the testimony of any witness read to them it is proper for the trial court to require the official court reporter to do so in the presence of the parties to the action. (See State v. Andrews, 218 Kan. 156, 542 P.2d 325 and cases cited therein.) Upon the request of the jury that the testimony be read back to them, it was entirely within the trial court’s discretion to allow the court reporter to read that testimony back to the jurors.
The appellant Watie also claims the trial court erred in not granting his motion to continue the trial until the witness, Linda Lewis, would be available to testify in person or to permit her to testify out of sequence.
The granting of a continuance in a criminal action is entirely within the sound discretion of the trial court. (State v. Holt, 221 Kan. 696, 699, 561 P.2d 435; State v. Howard, 221 Kan. 51, 557 P.2d 1280 and cases cited therein.)
The factors to be considered by the trial court were recently discussed in State v. Howard, supra, where it is said:
“When a continuance is requested during the trial of a case, the trial judge must weigh the many factors involved — possible prejudice to the defendant, the diligence (or lack of it) disclosed in attempting to secure the attendance of the witness, the materiality and importance of the probable testimony, and the probability of the witness’ appearance at a later date if the continuance is granted. . . .” (p. 55.)
The appellant Watie argues a continuance would have permitted him to confront Linda Lewis at trial. This argument is based upon an assertion, unsupported in the record, Linda Lewis would be returned to Wichita within the time span of the trial. The only statements in the record that might indicate when Linda Lewis would return from Texas were statements to the effect she was undergoing a 30-60 day narcotics evaluation.
The appellant Watie further contends the state should have requested a continuance in lieu of using the transcript from the preliminary hearing. Under the circumstances the state was not required to request a continuance. In fact, it would have been meaningless for the state to request a continuance after the appellant’s motion was overruled. Therefore, the trial court acted within its realm of discretion in refusing to grant a continuance and no abuse of discretion has been shown.
All of the appellants contend the trial court erred in permitting them to be tried together.
The original complaint in this action charged the appellants, together with Terry Beasley and Jerry Beasley, with the aggravated robbery of Karen J. Beard in Count One, the aggravated robbery of Wetzel’s Jewelry Store in Count Two and the conspiracy to commit aggravated robbery in Count Three. Nathaniel Watie was additionally charged with corruptly influencing a witness but was subsequently acquitted of the charge. (The prosecution subsequently dismissed its case against the two Beasleys.)
Before the trial the appellant Watie filed a written motion for severance ánd the other appellants orally joined in the motion. The motion was denied and the case proceeded to trial.
The rules for joinder are well established in Kansas. K.S.A. 1977 Supp. 22-3202 provides two or more defendants can be tried together whenever the charges arise out of the same act or transaction. (State v. Roberts, 223 Kan. 49, 574 P.2d 164; State v. Cameron & Bentley, 216 Kan. 644, 533 P.2d 1255; and State v. Wheeler, 215 Kan. 94, 523 P.2d 722.) Under the provisions of K.S.A. 22-3204 the granting of separate trials rests within the sound discretion of the trial court and will not be overturned absent a showing of an abuse of discretion. (State v. Coe, 223 Kan. 153, 574 P.2d 929; and State v. Jones, 222 Kan. 56, 58, 563 P.2d 1021.) In the case at bar all of the charges arose out of the same transactions and basically all of the appellants were charged with the same crimes. Under these circumstances we find the trial court did not abuse the exercise of its power of discretion.
The appellant Watie also unsuccessfully renewed his motion at trial. As previously indicated the state’s motion to introduce the prior testimony of Linda Lewis was granted pursuant to K.S.A. 60-460(c). The trial court then addressed its attention to the issue of what portions of the transcripts were admissible. The preliminary hearing for the defendant Jerry Beasley was held separately from the other appellants. The trial court announced this transcript would be used solely against the defendant Jerry Beasley over the appellant Watie’s objection. Thereafter the appellant Watie moved to sever. On appeal, he claims it was error for the trial court to overrule his motion to delete certain portions of Linda Lewis’ testimony taken at Jerry Beasley’s preliminary hearing because its prejudicial impact outweighed its evidentiary value. He also claims it was error for the trial court to overrule his motion for a separate trial on the basis that the reading of portions of Linda Lewis’ testimony taken at Jerry Beasley’s separate preliminary hearing on August 29 would be a denial of his right to confront the witness and in overruling his objection to the reading of such testimony to the jury.
The appellant’s argument overlooks the fact the trial court instructed the jury the testimony of Linda Lewis from the preliminary hearing of Jerry Beasley would apply only to that defendant and would not apply to the codefendants including the appellant Watie. Specifically the trial court instructed:
“You are also instructed that you should give separate consideration to each defendant. Each is entitled to have his case decided on the law and the evidence which is applicable to him.
“Any evidence which was limited by me to one defendant should not be considered by you as to any other defendant. In particular, that testimony by Linda Ricks concerning the defendant Jerry Beasley and given in his preliminary hearing should be considered by you only as to him and none of the other defendants; the testimony from the preliminary hearing of Junious Heard, Linda Beasley Heard, Terry Beasley and Nathaniel Watie should be considered by you only as to those defendants and not as to the defendant Jerry Beasley.”
The particular testimony to which the appellant Watie objects pertained to references Linda Lewis made concerning him. The witness testified she was told by Linda Beasley Heard she could get some rings from the appellant Watie. She also referred to him by his nickname “Oklahoma.” However, the testimony of the same witness admitted from the preliminary hearing of the appellant Watie was substantially the same. Linda Lewis’ first reference to the appellant as “Oklahoma” was made in reference to the same conversation when she said:
“She say if I ever need anything like Master Charge cards or checks, or one of them rings, to get in touch with Oklahoma.”
In a later reference to “Oklahoma” at the same preliminary hearing she testified:
“A. I told you she said if I needed any more to go to Oklahoma. . . .
“Q. Do you know who Linda was referring to when she said Oklahoma?
“A. Oklahoma’s over there.” (The record reflects the witness identified the appellant Watie.)
The appellant Watie was not implicated directly in the robbery of the jewelry store in the transcript of either preliminary hearing by Linda Lewis. The transcripts from both preliminary hearings were substantially the same, limiting instructions were given and the trial court amply guarded against any prejudice to the appellant.
Similarly, the appellant Watie’s argument he was not allowed to confront Linda Lewis because her testimony from Jerry Beasley’s preliminary hearing was admitted is not convincing. The record reflects the appellant had the opportunity and did confront Linda Lewis at his own preliminary hearing. The testimony of the same witness given at Jerry Beasley’s preliminary hearing was admitted only in relation to the codefendant Jerry Beasley. The appellant Watie’s right to confrontation was amply satisfied.
Next the appellant Junious Heard questions the fairness of his lineup. On April 24, 1975, at a police lineup Karen Beard identified the appellant Junious Heard as the individual who had stolen her car at gunpoint. Mary Jane Winchester, an employee of Wetzel’s Jewelry Store, also identified Junious Heard as one of the robbers of the jewelry store. The appellant failed to file a pretrial motion to suppress the evidence of the out-of-court identification or to object to the testimony at trial. The appellant’s failure to preserve this matter for appeal by a motion to suppress a suggestive lineup or by an objection pursuant to K.S.A. 60-404 precludes review of that lineup on appeal. (State v. Hornbeak, 221 Kan. 397, 559 P.2d 385; and Cook v. State, 220 Kan. 223, 552 P.2d 985.)
The appellant Watie contends the trial court erred in excluding evidence of inconsistent statements of the witness, Linda Lewis.
Subsequent to the admission of Linda Lewis’ testimony the appellant proffered evidence of inconsistent statements made by Linda Lewis to her mother. Allegedly Linda Lewis told her mother that she knew nothing about the robbery of the jewelry store. The trial judge excluded the evidence on the ground that the witness had not been confronted with those statements and given the opportunity to explain or deny those statements.
The appellant Watie contends K.S.A. 60-462 requires the admission of the prior inconsistent statements here. The statute provides:
“Evidence of a statement or other conduct by a declarant inconsistent with a statement received in evidence under an exception to K.S.A. 60-460, is admissible for the purpose of discrediting the declarant, though he or she had no opportunity to deny or explain such inconsistent statement. . . .”
The appellant’s argument overlooks the inherent discretion of the trial judge to avoid unfairness in the presentation of the evidence at trial. Our court discussed the use of a similar impeachment attempt in State v. Ford, 210 Kan. 491, 502 P.2d 786, stating:
“. . . [FJreedom to impeach is subject to the qualification of K.S.A. 60-422(b) that the impeaching statement ‘may in the discretion of the judge be excluded unless the witness was so examined while testifying as to give him an opportunity to identify, explain or deny the statement.’ . . .” (p. 496.)
(See also Thompson v. Norman, 198 Kan. 436, 424 P.2d 593.)
Thus, the exclusion of the evidence in question may be said to be within the sound discretion of the trial court and should not be disturbed in the absence of an abuse of discretion. The appellant Watie does not allege an abuse of discretion and the exclusion of the evidence as to him must stand.
The appellant Watie also complains the trial court erred in failing to provide him with copies of the lay witnesses’ statements who testified against him at trial.
Before the trial the appellant attempted to discover certain reports made by police officers subsequent to interviews they had with witnesses. The police officers’ statements were neither read nor signed by any witnesses. The trial court refused to order production of those documents before the state attempted to introduce any testimony regarding them, and the appellant was instructed to renew his motion at the trial. He now contends the reports constituted a manual recording of a substantially verbatim recital of an oral statement made by a witness and recorded contemporaneously with the making of the statement pursuant to K.S.A. 22-3213.
Our court discusses this statute, frequently referred to as “The Little Jencks Act,” at length in State v. Smallwood, 223 Kan. 320, 574 P.2d 1361. There is no support in the record for any contention the witnesses adopted, approved or signed the reports made by the police officers. Furthermore, the trial court stated:
“. . . [A] statement is either a written statement made by the witness and signed or otherwise adopted or approved by him. And if a witness has read an officer’s report containing the statement of that witness and has adopted that officer’s report, then that is an adoptive statement and you are entitled to see it. But if it is simply the officer’s recollection of what the witness said, then it is not a statement and doesn’t fall into that definition or into the next definition which contemplates a statement being made before a court reporter or on a tape recorder. So that is the definition of a statement. . . .”
This determination by the trial court was entirely proper and no error is indicated by the record.
Finally, the appellant Watie argues the trial court erred in overruling his motion for judgment of acquittal. He argues the evidence in this case is insufficient to sustain a conviction.
On many occasions this court has discussed the test concerning a motion for acquittal. (See State v. Martin, 223 Kan. 78, 573 P.2d 576; State v. Jones, supra; State v. Holt, supra; and State v. Daugherty, 221 Kan. 612, 562 P.2d 42.)
We said in State v. Gustin, 212 Kan. 475, 510 P.2d 1290:
“A trial judge in passing upon a motion for judgment of acquittal must determine whether upon the evidence, giving full play to the right of the jury to determine credibility, weigh the evidence, and draw justifiable inferences of fact, a reasonable mind might fairly conclude guilt beyond a reasonable doubt. If he concludes guilt beyond a reasonable doubt is a fairly possible result, he must deny the motion and let the jury decide the matter. If he concludes that upon the evidence there must be such a doubt in a reasonable mind, he must grant the motion.” (Syl. 3.)
The evidence in this case against the appellant Watie consisted primarily of the identification by all the eyewitnesses who were victims of the robbery. The appellant offered an alibi defense. The law is well settled it is entirely up to the jury to determine the weight and credibility to be given the testimony of any witness. The evidence in this case was sufficient for a reasonable mind to find guilt beyond a reasonable doubt. The trial court did not err in overruling the appellant’s motions.
As their final point on appeal the appellants Linda Beasley Heard and Junious Heard assert the trial court erred in denying their motion for a new trial because the witness, Linda Lewis, allegedly recanted her testimony. Apparently while Linda Lewis was incarcerated in the Sedgwick County jail with the appellant Linda Beasley Heard, she wrote a letter professing to change her testimony.
When a new trial is sought on the basis of recanting testimony of a prosecution witness, the weight to be given such testimony is for the trial judge passing on the motion for new trial to determine. (State v. Larkin, 212 Kan. 158, 510 P.2d 123, cert. denied, 414 U.S. 848, 38 L.Ed.2d 95, 94 S.Ct. 134; and State v. Theus, 207 Kan. 571, 485 P.2d 1327.) The trial judge is required to grant a new trial only when he is satisfied the recantation of the witness’s testimony is true. (State v. Green, 211 Kan. 887, 895, 508 P.2d 883.)
Clearly the evidence in this case against the appellant Junious Heard was abundant. He was identified by Karen Beard as the man who stole her car at gunpoint. Like the appellant Watie, he was identified by all three eyewitnesses at the jewelry store, he was unable to effectively explain his whereabouts to the satisfaction of the jury, and the testimony of Linda Lewis introduced over his objection was merely cumulative.
On the other hand, the trial was inherently unfair to the appellant Linda Beasley Heard and the failure of the trial court to grant her a new trial was prejudicial error. Unlike the other appellants Linda Beasley Heard was never identified by any eyewitness to the crime. She was tied to the scene of the robbery solely on the basis of incriminating statements she allegedly made to Linda Lewis. Whether she was permitted to effectively cross-examine this witness at the preliminary hearing remains a serious question. The main purpose of the preliminary hearing is to determine whether a crime has been committed and whether there is probable cause to believe the defendant committed it. It is not uncommon for counsel for the defendant to refrain from cross-examination because of the nature of the proceedings. The record here discloses no cross-examination on behalf of this appellant. Further, Linda Beasley Heard’s own attempts to introduce evidence of Linda Lewis’ recanting statements, together with attempts to introduce the allegedly inconsistent statements made by the witness to her mother were all denied by the trial court. Taken individually these points do not merit reversal, but in view of the meager evidence against Linda Beasley Heard and the cumulative effect of the rulings of the trial court adverse to her, we hold the trial court committed prejudicial error in failing to grant a new trial to the appellant Linda Beasley Heard, and her conviction must be reversed.
The judgment of the lower court is affirmed as to the appellants Nathaniel Watie and Junious Heard, but the conviction and judgment of Linda Beasley Heard is reversed and the case is remanded for a new trial.
Holmes, J., not participating. | [
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The opinion of the court was delivered by
Miller, J.:
Mayo Mullins was convicted of aggravated robbery, in violation of K.S.A. 21-3427, and he appeals. The sentence imposed was confinement for not less than 15 years, without parole eligibility until that minimum sentence is served.
Mullins contends that it was a denial of his constitutional right to trial by jury for the court to make a finding of fact, i.e., that Mullins used a firearm in the commission of the offense, when the court invoked K.S.A. 1977 Supp. 21-4618 at the time of sentencing; that the evidence was insufficient to sustain the conviction; and that the court erred in admitting certain evidence, in failing to impose sanctions on the state, and in failing to instruct on simple robbery.
The robbery occurred at a Pizza Hut in Wichita about noon on February 26, 1977. Two employees, “Debbie” and “Keith,” were the only employees in the building. Two black men entered; one ordered a pizza from Debbie, and the other headed toward the restroom. Shortly thereafter, one of the men pointed a revolver at Keith, and ordered him to go to a small shed at the rear of the premises. A few minutes later Debbie came to the shed to get supplies; one of the men pointed a gun at her and told her to tear the strings from an apron and tie Keith; Debbie was unable to loosen the strings, so the men tied both Debbie and Keith. One of the men pulled Debbie’s slacks and underwear down; she protested, and told him that she had gonorrhea. (She didn’t.) He then left her alone, and she pulled her clothes up. The men took the money from the cash register and the safe with them when they left.
Both Debbie and Keith identified Mullins as one of the robbers. Debbie said one of the men had a revolver; she was not sure about the other. Keith said both men had a gun, or at least that at different times each man pointed a gun at Keith; it could have been the same gun.
Detective Godinez testified that Mullins told him that he (Mullins) was armed with a .38-caliber revolver when he entered the Pizza Hut, and that he used that weapon in the robbery. Detective Malone, called as a rebuttal witness, also testified that Mullins admitted participating in the robbery.
We turn first to what we consider the principal point raised in this appeal, one upon which we have not previously ruled: defendant’s claim that the trial court denied defendant his constitutional right to a trial by jury when the judge, and not the jury, made a finding upon sentencing that the defendant used a firearm in the commission of the robbery. (Mullins was charged and convicted of using a “dangerous weapon.”) There was no evidence, however, that Mullins used any weapon except a revolver. Be that as it may, K.S.A. 1977 Supp. 21-4618 does not come into play until after conviction, at the time of sentencing.
A similar question was presented to the Court of Appeals in the recent case of State v. Kleber, 2 Kan. App. 2d 115, 575 P.2d 900 (1978). The court said:
. . Defendant argues that the mandatory provisions of K.S.A. 1977 Supp. 21-4618 may not be applied unless the question whether a firearm was used in the commission of the offense is determined in the affirmative by the trier of fact. It is undisputed that the jury was not instructed to determine, and did not determine, whether defendant committed the aggravated battery with the use of a firearm. . . .
“The cases relied upon by defendant are not controlling since they concern statutes from other jurisdictions wherein an additional and enhanced sentence may be imposed upon a defendant who commits a crime with a firearm. Such statutes frequently provide that one who commits a felony with a firearm may receive a separate sentence for the use of the firearm in addition to whatever sentence may be imposed for the felony. In construing such statutes, it has been held that the question as to whether a firearm was used must be determined by the trier of fact before the additional sentence may be imposed. Jordan v. United States District Court for the Dist. of Col., 233 F.2d 362, 367 (D.C. Cir. 1956); People v. Najera, 105 Cal. Rptr. 345, 8 Cal. 3d 504, 503 P.2d 1353 (1972); State v. Blea, 84 N.M. 595, 506 P.2d 339 (1973); Johnson v. State, 249 Ark. 208, 458 S.W.2d 409 (1970). It has been said that such statutes define a new class of crimes by adding a new element, use of a firearm, and the existence of the new element requires an additional finding of fact. State v. Blea, supra, p. 342.
“We believe K.S.A. 1977 Supp. 21-4618 is distinguishable from those statutes of other jurisdictions construed in the cases cited by defendant. K.S.A. 1977 Supp. 21-4618, when read in conjunction with K.S.A. 1977 Supp. 22-3717(8), has the effect of imposing a mandatory minimum sentence for all Article 34 crimes in which the defendant used a firearm in the commission of the crime. State v. Freeman, 223 Kan. 362, 364, 574 P.2d 950. We have construed K.S.A. 1977 Supp. 21-4618 as precluding the suspension of sentence where defendant has been found guilty of an Article 34 crime with the use of a firearm. Esters v. State, 1 Kan. App. 2d 503, Syl. 4, 571 P.2d 32; State v. Stuart and Jones, 223 Kan. 600, 575 P.2d 559 [1978], While K.S.A. 1977 Supp. 21-4618 limits the range of authorized dispositions available to the trial court in some instances, it does not create a new class of crimes, add a new element to the statutory definition of already existing crimes, or provide for an additional sentence. Use of a firearm under the statute is not made an element of the offense charged, and is only pertinent to the authorized disposition the court may consider in the event of a conviction.
“We believe the situation is analogous to sentencing under the provisions of the habitual criminal act, K.S.A. 21-4504. The State is not obliged to prove the prior conviction during the presentation of its evidence before the jury in such cases, and evidence of the prior conviction should be presented to the court after conviction. State v. Loudermilk, 221 Kan. 157, 161, 557 P.2d 1229; State v. Messmore, 175 Kan. 354, Syl. 1, 264 P.2d 911.
“Therefore, we conclude that the question of defendant’s use of a firearm did not have to be submitted to the jury for determination. We do not believe the failure of the State to include in the information an allegation that the crime was committed with the use of a firearm precluded use of K.S.A. 1977 Supp. 21-4618 in denying defendant probation.” (pp. 119-120.)
We agree with the construction given the statute by the Court of Appeals, and with the court’s conclusions. K.S.A. 1977 Supp. 21-4618 does not add an additional element to the criminal offenses defined in Article 34; trial is to be conducted on the issues governing each offense, and the state is not obligated to charge, or to prove during trial, that the defendant used a firearm in the commission of the offense, in order that the statute be invoked.
We hold that whether a defendant used a firearm in the commission of an Article 34 offense is a matter to be determined by the trial judge at the time of sentencing. It need not be submitted to the jury.
Appellant argues that he was not sufficiently identified as one of the robbers, and that the “gun” might have been a toy. Two witnesses positively identified Mullins, and two detectives said Mullins admitted to them that he pulled the robbery. There was no evidence that the gun used was a toy; both store employees said one or more guns were used, and Mullins admitted to Detective Godinez that he (Mullins) used a .38-caliber revolver in the robbery. Clearly, the evidence was sufficient to support the conviction, and to withstand defendant’s motion for judgment of acquittal. State v. Holt, 221 Kan. 696, 561 P.2d 435 (1977); State v. Gustin, 212 Kan. 475, 510 P.2d 1290 (1973).
Detective Godinez testified during the state’s case in chief as to Mullins’ confession. Mullins later took the stand in his own behalf and denied that he told Godinez or anyone that he had been involved in the Pizza Hut robbery. On cross-examination he denied that he said anything about that robbery to Detective Malone. Malone was then called by the state in rebuttal; over objection he testified that Mullins told him that he (Mullins) and Craig Sanders pulled the Pizza Hut robbery; that Sanders had the gun; and that they got about $80.
Defendant claims the court erred in admitting Detective Malone’s testimony, and in failing to impose sanctions against the state for failure to comply with a discovery order. It developed on trial that Detective Malone had prepared a one-page typewritten report, which the prosecutor had overlooked, but which was furnished to defense counsel before the cross-examination of Malone was completed. Under the circumstances, the trial court did not err in failing to impose sanctions on the state. The failure to furnish the report was inadvertent, the report was furnished in time to be useful to defense counsel, and we find no prejudice.
Detective Malone’s testimony was admissible in rebuttal on the issue of whether Mullins had admitted participation in the robbery. We find no abuse of discretion in its admission. State v. Emery, 218 Kan. 423, 543 P.2d 897 (1975); State v. Burnett, 221 Kan. 40, 558 P.2d 1087 (1976); State v. Clark, 223 Kan. 83, 88-89, 574 P.2d 174 (1977).
Defendant claims error in the admission of evidence about the sexual molestation of Debbie. There was no contemporaneous objection to the mention of this incident during the state’s opening statement, nor was any objection voiced to the testimony when it was received. The contemporaneous objection rule, K.S.A. 60-404, precludes use of the admission of this evidence as the basis for reversible error. State v. Fisher, 222 Kan. 76, Syl. 7, 563 P.2d 1012 (1977). And even if objection had been made, the sexual molestation was an integral part of the robbery, and the evidence was admissible. State v. Ferris, 222 Kan. 515, 517, 565 P.2d 275 (1977).
Finally, defendant claims error in that no instruction on simple robbery was given. The only evidence was that the robbery was accomplished with firearms; either defendant was guilty of aggravated robbery or he was guilty of no offense. There was no evidence upon which Mullins could have been convicted of simple robbery, and the trial court did not err in failing to instruct on it. State v. Seelke, 221 Kan. 672, 676, 561 P.2d 869 (1977); State v. Burrow & Dohlmar, 221 Kan. 745, 748, 561 P.2d 864 (1977).
We have examined each issue raised by the defendant, and find no error.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Miller, J.:
Austin Dunnan was convicted by a jury of murder in the second degree, K.S.A. 21-3402, and felony theft, K.S.A. 21-3701. He appeals, and raises four points: that the magistrate failed to make findings sufficient to justify his action in binding the defendant over for trial; that the appearance bond fixed for the defendant was excessive and deprived him of his constitutional right to bail; that there was not sufficient evidence of malice to support the murder conviction; and that the trial court committed prejudicial error in the manner in which it answered questions from the deliberating jury.
The facts disclosed by the record are these. Late in the afternoon of January 14, 1977, Dunnan met Mike Bartlett in the Blacksmith Tavern in Dodge City, Kansas. Bartlett expressed an interest in buying a rifle, so Dunnan and Bartlett went to Dun-nan’s apartment where Dunnan displayed a rifle which he wished to sell. Dunnan warned Bartlett that the rifle was loaded. When Bartlett started to reach for one of two guns in a rack on the wall, Dunnan said that they were loaded, so Bartlett left them alone. The sale of the rifle was agreed upon, and the two men returned to the Blacksmith Tavern.
Dunnan met other friends, played pool, drank beer, and danced. About midnight Dunnan and a friend, Robyn Ross, left the Blacksmith in Ross’s car, stopped for a few moments at the home of friends, then went to Dunnan’s apartment. Dunnan went to the kitchen to fix something to eat; Ross took a .22 caliber rifle off of the rack on the wall and shot out the kitchen light above Dunnan’s head. Dunnan admonished Ross, and then replaced the light bulb. Ross reloaded the rifle and fired three or four more rounds into the kitchen where Dunnan was working. This upset Dunnan. He grabbed a .410 shotgun from the wall rack, stepped behind Ross, and told Ross to put the gun down. Ross, who appeared to be trying to load the rifle, said, “That gun is not loaded.” Dunnan said, “You want to bet it is not loaded?” Then Dunnan cocked the shotgun,, put his finger on the trigger, and fired. The charge struck Ross in the head, killing him instantly.
Dunnan took Ross’s money, his billfold, and his car, and left town. Ross’s body was not discovered until January 22, seven days after the shooting. Dunnan was arrested at the home of friends in Tucson, Arizona, on January 28. Ross’s car was parked near the place of Dunnan’s arrest.
Defendant’s first claim of error is that the magistrate failed to make the necessary and proper findings to bind the defendant over for trial. K.S.A. 1976 Supp. 22-2902(3) provides that:
“. . . If from the evidence it appears that a felony has been committed and there is probable cause to believe that a felony has been committed by the defendant the magistrate shall order the defendant bound over . . .”
The magistrate who heard the preliminary examination found “that the criminal act of Second Degree Murder was probably committed, and I am therefore binding him over to the District Court, Judge Robert M. Baker, for trial on that charge, and also on the second charge of theft of a car.”
This was error, but we hold that it was not prejudicial error. We have examined the transcript of the preliminary examination, consisting of some 60 pages, and find that the evidence before the magistrate would adequately support the statutory findings; further, it is evident from the magistrate’s expressed findings that it appeared to him that the felonies charged had been committed. By binding the defendant over for trial, he made the tacit — if unexpressed — finding that there was probable cause to believe that those offenses had been committed by the defendant.
The better practice would have been for the magistrate to articulate his findings in the wording of the statute or, where he did not, for the state to move to amend the findings. However, on the record before us, we do not believe the defendant was prejudiced. He was fully informed of the nature and character of the offenses with which he was charged, and was apprised of the sort of evidence which would be offered against him at trial. We recently discussed at length the preliminary examination and the limited function of the magistrate in conducting it. State v. Boone, 218 Kan. 482, 543 P.2d 945, cert. den. 425 U.S. 915, 47 L.Ed.2d 767,96 S.Ct. 1515. A repetition of what we said in Boone is not necessary here.
Defendant next contends that the bail set by the magistrate— $250,000 — was so high and excessive that it amounted to no bail at all, and constituted a deprivation of his right to bail under the Eighth Amendment to the United States Constitution, under §9 of the Bill of Rights of the Constitution of Kansas, and under K.S.A. 22-2801. The bond fixed was indeed high, but the offense was most serious. We find no written motion to reduce bond, and if an oral motion was made, we find no record of it. Also, we find no indication that the defendant filed an application for writ of habeas corpus, an appropriate, efficacious, and always available method for seeking release from unlawful custody. See Bloss v. State, 11 Kan. 462. We hasten to say that such an application should not be made until a motion to reduce bond has been heard and ruled upon by the trial court.
In the case before us we cannot say that the court below abused its discretion at the time bail was fixed. We find no error in this regard which would justify a reversal of the conviction. Defendant has been given credit for all of the time he was in custody, and he makes no claim or showing that his defense was in any way hampered by his custody status. The matter of pretrial release is now moot.
Defendant next claims that there was not sufficient evidence of malice to support his conviction of murder in the second degree. Malice, as we have often said, consists of the intentional doing of a wrongful act without just cause or excuse. State v. Childers, 222 Kan. 32, 563 P.2d 999; State v. Wilson, 215 Kan. 437, 524 P.2d 224; State v. Jensen, 197 Kan. 427, 417 P.2d 273. Malice may be established by circumstantial evidence, as we noted in State v. Sparks, 217 Kan. 204, 209, 535 P.2d 901, since elements such as malice and intent exist only in the mind of the perpetrator of the deed, and direct evidence may not exist. Also, malice may be inferred from the use of a dangerous weapon. State v. Ritchey, 223 Kan. 99, 101, 573 P.2d 973, and cases there cited.
In addition to the facts already set out, there was evidence that Dunnan knew the shotgun was loaded when he pointed it at Ross’s head and pulled the trigger. Dunnan said that he was not afraid for his own life, he felt that he could have handled the situation had Ross pointed the rifle at him, and he was not acting under the heat of passion. Under the facts before us we conclude that there was ample evidence to establish malice.
The fourth and final point is the most serious and in our opinion requires a reversal of the murder conviction. A statement of the events as they transpired is necessary to an understanding of the point raised.
After the jury had been deliberating for about 3 hours, it sent the following question to the judge:
“Are all the qualifications of the lesser charges necessarily included in Second Degree charge?”
The judge conferred with counsel; the defendant was not present. The judge indicated that he was going to answer the question with a “yes.” Defense counsel said, “I don’t think that’s right.” The judge sent the question back to the jury with the answer “yes.”
About fifteen minutes later the jury sent this question to the judge:
“Does heat of passion go with or against Second Degree?”
Neither counsel nor the defendant was present nor were they consulted. The judge returned the following answer to the jury: “Read first paragraph of instruction No. 5 and first paragraph of instruction No. 9.”
The paragraphs to which the jury was directed read as follows:
“The offense of murder in the second degree with which the defendant is charged includes the lesser offenses of voluntary manslaughter and involuntary manslaughter. If you do not find the defendant guilty of murder in the second degree, then you should consider such offenses in that order.”
“Relative to the charge of second degree murder against the defendant, if you find the defendant is not guilty of murder in the second degree or of voluntary manslaughter or of involuntary manslaughter, then you must find the defendant not guilty.”
About an hour later, the jury submitted its final question:
“Please define in detail maliciously according to law. Please don’t refer.”
After consulting counsel (again the defendant was not present), the court answered, “Instruction No. 10 is all we can give you.” Instruction No. 10 defined maliciously as “willfully doing a wrongful act without just cause or excuse.”
We note that the procedure followed by the trial court does not comport with that statutorily delineated. The better practice is to follow K.S.A. 22-3420(3), which provides:
“After the jury has retired for deliberation, if they desire to be informed as to any part of the law or evidence arising in the case, they may request the officer to conduct them to the court, where the information on the point of the law shall be given, or the evidence shall be read or exhibited to them in the presence of the defendant, unless he voluntarily absents himself, and his counsel and after notice to the prosecuting attorney.”
The defendant and his counsel should be present at this critical stage of the trial, and the answers should be given to the jury’s questions in open court, unless the defendant voluntarily absents himself or waives the right to be present. The procedure followed was error, but not necessarily prejudicial error.
This brings us to the crucial issue, whether the answers given by the trial court to the questions submitted by the jury constituted prejudicial error. Dunnan was charged with murder in the second degree; the jury was properly instructed as to that offense, and also as to the two lesser degrees of homicide, voluntary manslaughter and involuntary manslaughter.
Defendant had made several statements to law enforcement officers, and he testified in his own defense at the trial. He admitted that he held the shotgun at the time it fired and that the shot killed Ross. Without detailing his various statements and his testimony, and the other evidence, it is clear that the jury could have found that the killing was unintentional, or that it was intentional but done in the heat of passion, or that it was malicious. The questions show that the jury was confused. The answer to their first question was in error, since it advised the jury that all elements of the offenses of manslaughter are elements of second-degree murder. Manslaughter is a lesser degree of homicide, not a crime necessarily proved if second-degree murder is proved. Not all of the elements of the two degrees of manslaughter are elements of second-degree murder.
The second question submitted perhaps pinpointed the stumbling block, heat of passion. The trial court did not give the jury a clear answer to the second question, and did not explain that an intentional killing done in the heat of passion is manslaughter, not murder. The third question, with its “do not refer,” clearly indicated the jury’s dissatisfaction with the answer to the prior question.
When by a jury’s questions to the trial court it becomes apparent that the jury is confused as to the essential elements of the various offenses of which the defendant may be convicted, it is the duty of the trial court to give the jury guidance by answering the questions accurately or by clarifying its prior instructions on the subject. We discussed in detail the trial court’s obligation under similar circumstances in State v. Bandt, 219 Kan. 816, 549 P.2d 936.
We hold that the failure of the trial court to give the jury clear and accurate answers to its first two questions, which went to the very core of the alternative verdicts which the jury was considering, was prejudicial error and denied a fair trial to this defendant.
The judgment is affirmed as to the conviction of Austin S. Dunnan of felony theft, and as to the sentence imposed upon him therefor.
The judgment of conviction of Austin S. Dunnan of murder in the second degree is reversed, and the case is remanded for further proceedings.
McFarland, J., dissents from the reversal, and would affirm in toto. | [
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Per Curiam:
This is a direct appeal by Hiram Sanders from his convictions of aggravated battery of Harry Crossiand, a civilian employee of the Kansas City, Kansas, police department, in violation of K.S.A. 21-3414, aggravated battery of a law enforcement officer, Sergeant Anthony Kovac, in violation of K.S.A. 21-3415, and three counts of battery against law enforcement officers, Officers Ronald Hogue, Melvin Cheek and Steve Barber, in violation of K.S.A. 21-3413. A number of points are raised; we will discuss each after stating the facts.
On August 15,1976, Officers Hogue and Cheek were on duty in Kansas City, Kansas. They responded to a call by going to the 2500 block on Hiawatha, where they found the defendant slumped over on the front seat of a car, which had come to rest on a private lawn. Defendant’s eyes were rolling around, and he appeared to be semi-conscious. The officers discerned no strong odor of alcohol, and concluded that Sanders was high on drugs. They helped him walk to the police car and put him in the back seat, and planned to take him to headquarters for observation for four hours, under police department policy. Sanders was not placed under arrest, and he was not searched or handcuffed. Shortly after he was placed in the patrol car, Sanders began kicking, beating on the windows and the shield separating him from the front seat, shouting, cursing, and threatening the officers.
Sanders refused to come out of the patrol car when it arrived at headquarters. Officer Barber joined the other two officers, and Barber and Cheek reached into the back seat and attempted to pull Sanders out. Suddenly, when Sanders got his feet on the ground, he jumped out and landed on Officer Cheek. He pro ceeded to strike and kick the three officers repeatedly; he was finally subdued and was carried into the booking area, where he lay on the floor and pretended to be unconscious. Sergeant Kovac and Mr. Crossland were on duty; they started to search Sanders, and the other officers started to leave. The telephone rang, and Sergeant Kovac turned to answer it. Suddenly, Sanders kicked Crossland in the chest, then jumped high in the air and came down with his elbow at the back of Kovac’s neck, knocking him unconscious. He began jumping on Kovac and kicking him in the back. Crossland attempted to restrain Sanders, and Officers Hogue, Cheek and Barber, hearing the commotion, returned and subdued him. The officers testified in substance that Sanders had done a lot of boxing; that on the date in question he called the officers by name, he knew where he was and what he was doing, and he handled himself well; his blows and kicks were not wild, but were aimed and effective.
Harry Crossland, a civilian employee of the police department, sustained an injured hand in the melee; he also suffered a heart attack, with some permanent heart damage. His physician testified that the incident was a precipitating factor in causing the heart attack. Crossland was in intensive care for a week, remained in the hospital for another week, and his physician would not let him return to work at the time of trial.
Sergeant Kovac suffered a neck and shoulder injury from the blow to the back of his neck. He received therapy every day for seven weeks. This included neck traction, back traction, hot packs, diathermy treatments, and exercises. Kovac missed seven weeks of work, and he was still experiencing pain from the injury at the time of trial, more than five months after the occurrence.
Officer Barber received various cuts and bruises, and one of his hands was placed in a cast because of torn cartilage, ligament and tendon. It was six weeks before he could return to work.
Officers Hogue and Cheek sustained minor sprains; neither was hospitalized, and neither missed work because of injury.
Sanders contends that the evidence failed to prove that the aggravated battery victims, Crossland and Kovac, suffered great bodily harm as a result of the incident. This issue was not raised during trial, nor was it included in the motion for a new trial. An issue presented for the first time on appeal will not be considered by this court. State v. Hornbeak, 221 Kan. 397, 404, 559 P.2d 385. Even if this issue had been presented to the trial court, the issue for review on appeal is whether the evidence is sufficient to form a reasonable inference of guilt when viewed in the light most favorable to the state. State v. Hornbeak, supra. Viewed in that light, the evidence was ample.
Next, defendant contends that K.S.A. 21-3414 is unconstitutionally vague and indefinite in that persons of common intelligence cannot determine what is meant by the statutory wording, “great bodily harm.” Again, we note that this point was not presented to the trial court during the trial or upon the motion for new trial. An issue presented here for the first time on appeal cannot be considered. State v. Hornbeak, supra. However, were the point properly before us, it would not benefit the defendant. He relies upon State v. Conley, 216 Kan. 66, 531 P.2d 36. We believe his reliance is misplaced; the language of the statute here before us is couched in language which is readily understandable, and there are no omissions of necessary language. Bodily harm — harm or injury to the body — is clear and unequivocal. Great distinguishes the bodily harm necessary in this offense from slight, trivial, minor or moderate harm, and as such it does not include mere bruises, which are likely to be sustained in simple battery. Whether the injury or harm is “great” or not is generally a question of fact for the jury. See Froedge v. State, 249 Ind. 438, 445, 233 N.E.2d 631 (1938); Houston v. State,_Ind. App._, 342 N.E.2d 684 (1976); and People v. Smith, 6 Ill. App. 3d 259, 285 N.E.2d 460 (1972).
Sanders contends that his initial custody was illegal because the officers did not comply with K.S.A. 65-4027 (now K.S.A. 1977 Supp. 65-4027). The statute is part of the Alcoholism article of Chapter 65, and by its terms is applicable only to persons “intoxicated or incapacitated by alcohol.” The witnesses, including the defendant, attributed defendant’s condition to drugs other than alcohol. Under the facts, the statute was inapplicable.
Defendant claims that the evidence showed that he was incapable of forming the specific intent to injure another person, required by K.S.A. 21-3414; that the jury disregarded this evidence; and that the verdict was not supported by the evidence. True, there was evidence that the defendant was “high” as a result of his voluntary consumption of drugs; but there was also evidence that the defendant was at times alert and that he rec ognized officers and called them by name. His physical dexterity was amply demonstrated. The trial court properly instructed the jury on voluntary intoxication. Considering all of the evidence favorable to the state, as we are obliged to do, we conclude that the evidence was sufficient to form the basis for a reasonable inference of guilt. State v. Hornbeak, supra.
Finally, Sanders contends that he was not afforded a trial by a jury of his peers, and that the trial court erred in not sustaining defendant’s motion to discharge the jury panel at the beginning of the trial, for the reason that the prosecutor struck all jurors who were members of the Negro race. We addressed this same proposition in State v. King, 219 Kan. 508, 548 P.2d 803, and State v. Jordan, 220 Kan. 110, 551 P.2d 773. In the latter case, we said:
“The fact that the state by exercise of peremptory challenges has excluded all members of a race or class from the jury does not alone deprive the accused of his right to a fair trial.” (p. 115.)
The record indicates that at least one of the jurors removed by the state had some personal acquaintanceship with Sanders and his family. As the United States Supreme Court said in Swain v. Alabama, 380 U.S. 202, 222, 13 L.Ed.2d 759, 773, 85 S.Ct. 824, “The presumption in any particular case must be that the prosecutor is using the State’s challenges to obtain a fair and impartial jury to try the case before the court.” We find no showing to the contrary in the case before us.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Miller, J.:
This is a direct appeal by the defendant, Wayman L. George, from his conviction for operating a vehicle while he was under the influence of intoxicating liquor, in violation of K.S.A. 8-1567 (now K.S.A. 1977 Supp. 8-1567). After conviction by a jury, George was sentenced to six months in jail, placed on probation, and given a restricted driver’s license which permitted him to drive to and from work.
He raises but one point: that it was a violation of the physician-patient privilege, as set out in K.S.A. 60-427, to allow into evidence the testimony of Dr. Lester Donley. The parties have stipulated that George would not have been convicted without the doctor’s testimony; thus if the admission of the testimony was error, it was reversible error.
Deputy Sheriff Kerns was the first witness for the state. He testified that he arrested George on the afternoon of July 10, 1975, and took him from the scene to the county jail. George admitted that he had ingested some “Old Charter” that afternoon, but refused to take a blood alcohol test, or the heel-to-toe or finger-to-nose tests. He told the officers that he had struck his head, and he asked them to call his physician, Dr. Donley. When the doctor arrived, the undersheriff brought George into the sheriff’s office where Dr. Donley examined him in the presence of Kerns and Deputy Sheriff Maddox.
After the doctor finished his examination, Kerns asked George if he would perform the heel-to-toe and finger-to-nose tests. George agreed to the tests if Dr. Donley would witness them. Kerns then proceeded to administer the tests, first by having George attempt to walk in a straight line by placing the heel to the toe, and next by having him attempt to touch the end of his nose while his eyes were closed. Kerns said that George had quite a problem in placing the heel to toe, and keeping his balance. He was wobbling as he walked. When George closed his eyes and attempted to touch the end of his nose, he fell back in a chair against the wall, and said that no one could do the test.
The state’s second witness was Dr. Donley. He was asked what he did in examining the defendant, and what the results of that examination were. At this point defense counsel objected for the reason that the testimony would violate the patient-physician privilege, K.S.A. 60-427. The state contended that the information was not confidential since it was transmitted in the presence of the two officers, whose presence was not “reasonably necessary for the transmission of the information.” The trial court overruled the objection.
The doctor then testified that he examined George’s head and found no injuries; the pupils of his eyes were equal but he had difficulty in following movement precisely; his heart, blood pressure, and pulse were all within normal limits. Dr. Donley then described George’s attempts to perform the heel-to-toe and finger-to-nose tests. In Dr. Donley’s opinion, the symptoms he observed were not indicative of a blow to the head or a concussion; in his opinion, George was under the influence of alcohol.
K.S.A. 60-407 sets forth the general rule that:
“Except as otherwise provided by statute (a) every person is qualified to be a witness, and ...(e) no person has a privilege that another shall not be a witness or shall not disclose any matter . . . and (f) all relevant evidence is admissible.”
An exception to this general rule is provided by K.S.A. 60-427 which reads as follows:
“(a) As used in this section, (1) ‘patient’ means a person who, for the sole purpose of securing preventive, palliative, or curative treatment, or a diagnosis preliminary to such treatment, of his or her physical or mental condition, consults a physician, or submits to an examination by a physician; (2) ‘physician’ means a person licensed or reasonably believed by the patient to be licensed to practice medicine or one of the healing arts as defined in K.S.A. 65-2802 in the state or jurisdiction in which the consultation or examination takes place; (3) ‘holder of the privilege’ means the patient while alive and not under guardianship or conservatorship or the guardian or conservator of the patient, or the personal representative of a deceased patient; (4) ‘confidential communication between physician and patient’ means such information transmitted between physician and patient, including information obtained by an examination of the patient, as is transmitted in confidence and by a means which, so far as the patient is aware, discloses the information to no third persons other than those reasonably necessary for the transmission of the information or the accomplishment of the purpose for which it is transmitted.
“(b) Except as provided by subsections (c), (d), (e) and (f) of this section, a person, whether or not a party, has a privilege in a civil action or in a prosecution for a misdemeanor to refuse to disclose, and to prevent a witness from disclosing, a communication, if the person claims the privilege and the judge finds that (1) the communication was a confidential communication between patient and physician, and (2) the patient or the physician reasonably believed the communication necessary or helpful to enable the physician to make a diagnosis of the condition of the patient or to prescribe or render treatment therefor, and (3) the witness (i) is the holder of the privilege or (ii) at the time of the communication was the physician or a person to whom disclosure was made because reasonably necessary for the transmission of the communication or for the accomplishment of the purpose for which it was transmitted or (Hi) is any other person who obtained knowledge or possession of the communication as the result of an intentional breach of the physician’s duty of nondisclosure by the physician or his or her agent or servant and (4) the claimant is the holder of the privilege or a person authorized to claim the privilege for him or her.
“(c) There is no privilege under this section as to any relevant communication between the patient and his or her physician (1) upon an issue of the patient’s condition in an action to commit him or her or otherwise place him or her under the control of another or others because of alleged incapacity or mental illness, or in an action in which the patient seeks to establish his or her competence or in an action to recover damages on account of conduct of the patient which constitutes a criminal offense other than a misdemeanor, or (2) upon an issue as to the validity of a document as a will of the patient, or (3) upon an issue between parties claiming by testate or intestate succession from a deceased patient.
“(d) There is no privilege under this section in an action in which the condition of the patient is an element or factor of the claim or defense of the patient or of any party claiming through or under the patient or claiming as a beneficiary of the patient through a contract to which the patient is or was a party.
“(e) There is no privilege under this section as to information which the physician or the patient is required to report to a public official or as to information required to be recorded in a public office, unless the statute requiring the report or record specifically provides that the information shall not be disclosed.
“(f) No person has a privilege under this section if the judge finds that sufficient evidence, aside from the communication has been introduced to warrant a finding that the services of the physician were sought or obtained to enable or aid anyone to commit or to plan to commit a crime or a tort, or to escape detection or apprehension after the commission of a crime or a tort.
“(g) A privilege under this section as to a communication is terminated if the judge finds that any person while a holder of the privilege has caused the physician or any agent or servant of the physician to testify in any action to any matter of which the physician or his or her agent or servant gained knowledge through the communication.”
The purpose of the statute is to encourage persons needing medical aid to seek it without fear of betrayal, not to disqualify physicians as witnesses. The privilege, being in derogation of the common law, should be strictly construed, and should not be construed to apply to matters “not coming clearly within its provisions.” State v. Townsend, 146 Kan. 982, 985, 73 P.2d 1124; and see, also, Armstrong v. Street Railway Co., 93 Kan. 493, 503, 144 Pac. 847; and Branch v. Wilkinson, 198 Neb. 649, 256 N.W.2d 307, 312 (1977).
Keeping in mind that the purpose of the statute is to encourage persons needing medical treatment to seek it, and the fact that the statute should be strictly construed, we must look at each of the elements necessary to establish the privilege.
There first must be a “patient,” a “holder of the privilege,” and a “physician.” George complained that he had struck his head. A deputy sheriff testified that he had seen a place over George’s eye, a bump or something, which looked like George had hit himself. George asked the officers to call his family doctor. Dr. Donley was then called, and he came to the jail and examined George. Dr. Donley was an osteopathic physician officing and practicing in Kingman. Clearly, George was a “patient” and “holder of the privilege” and Dr. Donley was a “physician” as those terms are used in the act.
We next consider whether there was a “confidential communication between physician and patient” as that phrase is defined within the act. There is no dispute but that Dr. Donley obtained information by examination of the patient. The dispute between the parties to this action arises in determining whether the information was transmitted “in confidence and by a means which, so far as the patient is aware, discloses the information to no third persons other than those reasonably necessary for the transmission of the information or the accomplishment of the purpose for which it is transmitted.”
Two law enforcement officers were present in the sheriff’s office during the examination. Their presence was not necessary for the transmission of the information or for the accomplishment of the purposes of the examination. However, there is nothing in the record to suggest that the information obtained by Dr. Donley in his examination of George was disclosed to the officers. The examination was visual, physical, and manual. The doctor did not testify as to any conversation between himself and the patient, nor did he indicate that George said anything during his examination. The doctor examined George’s head and his eyes, and checked his heartbeat, blood pressure, and pulse. We conclude that the information which the doctor acquired from his examination of George was in confidence.
After the examination was concluded, the doctor observed the dexterity tests performed by George at the direction of the officers. Both the doctor and the officers were observing George; the doctor was witnessing the tests at George’s request. The information he acquired from observing the test performances is not privileged; it was not a confidential communication between patient and physician.
Appellant directs our attention to two New York cases, People v. Decina, 157 N.Y.S.2d 558, 569-570, 2 N.Y.2d 133 (1956), and People v. Singer, 236 N.Y.S.2d 1012, 1013-1014 (Suffolk Co. Ct. 1962). In the first case a guard was present in the doorway of a hospital room, and overheard the conversation between doctor and patient. In the second, the arresting officer and a second officer were present in the treatment room during the time the physician was treating the patient. In both instances the courts held that the communications were confidential and the privilege applied.
The presence of law enforcement officers at the time of examination and treatment of a prisoner by a physician does not necessarily require a holding that the information obtained by the physician during the examination is not confidential, or that the patient-physician privilege is waived. A patient who is in custody can hardly be expected to ask the arresting officers to leave the jail so that he may be alone with his physician. We hold that in the case before us there was a “confidential communication” between patient and physician, the defendant and his family physician, consisting of the information obtained by the physician during the examination. This information was not transmitted to or through the officers; it was perceived directly by Dr. Donley from his examination of the patient.
The state suggests that the communication falls within the exception set forth in subparagraph (d) since this is an action in which the condition of the patient is an element or factor of the defense of the patient. Subsection (b) provides that the privilege obtains in civil actions and in misdemeanor prosecutions. There is no privilege under the statute in felony cases. George was charged with a misdemeanor; he entered a plea of not guilty; and at the time Dr. Donley’s testimony was proffered, George had offered no evidence as to his physical condition. Judge Gard, in his Kansas Code of Civil Procedure, says:
“Subsection (d) denies the privilege where the patient, or someone claiming through or under him, has brought the mental or physical condition of the patient into issue as the basis for a claim, or as the basis for a defense. The theory is sound. If the patient expects to gain or to escape liability because of his mental or physical condition it is grossly unfair to let him withhold a part of the evidence bearing upon that condition on the ground of privilege.
“The net result is that under this section the physician-patient privilege is reduced to those situations where the condition of the patient is only collaterally in issue and to misdemeanor cases, or where communications between the patient and the physician, in connection with diagnosis or treatment, are relevant only on some issue other than that of the patient’s condition.” § 60-427, p. 412.
Discussing the same section, Steven P. Flood, in his article, The Physician-Patient Privilege Under the New Code, 33 J.B.A.K. 100, 147, says:
“Subsection (d) is the most radical change in the privilege under the new code. It exempts the privilege from application in any action in which the condition of the patient is a factor in the claim or defense of the patient or any party claiming under or through him or as a beneficiary under any contracts to which the patient was a party. This in effect gives the privilege the same effect that it now has in Workmen’s Compensation Cases in Kansas, that is, the privilege is not applicable where the physical or mental condition of the patient is put in issue by the patient. The object is to prevent the use of the privilege to suppress evidence after the legitimate purpose of the privilege has been frustrated by the conduct of the patient or his representative by introducing evidence on his condition. . . .”
We hold that the condition of the patient is not put in issue by a not guilty plea in a misdemeanor case. To hold otherwise would negate the obvious intention of the legislature to extend the privilege to prosecutions for misdemeanors. Subsection (d), in our judgment, is applicable in a misdemeanor case only after the patient has offered evidence of his mental or physical condition. This is in accord with the comments of Judge Gard and now Judge Flood.
While the information acquired by Dr. Donley in observing the dexterity tests was not privileged, the information which he acquired through examination of the patient was within the statute and was privileged, and the trial court erred in admitting it over proper objection.
The judgment is reversed.
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The opinion of the court was delivered by
Holmes, J.:
This action was instituted by a group o.f taxpayers (appellants) under K.S.A. 60-907(a) seeking an injunction preventing defendants from issuing hospital bonds in the amount of $3,760,000.00 under the provisions of K.S.A. 1976 Supp. 19-1878. They now appeal from an order sustaining defendants’ motion for summary judgment and overruling plaintiffs’ motion for summary judgment.
G.S. 1939 Supp. 19-1854 through 19-1859, inclusive, became effective on February 25, 1938. This Act, passed apparently for the benefit of Thomas County, provided a procedure for certain counties to issue bonds for the purpose of constructing, establishing, completing and equipping a county hospital. On April 4, 1938, the Board of County Commissioners of Thomas County, by resolution, declared their intention to issue bonds in the amount of $15,000.00 for construction of a new hospital as provided by the Act. Notice of their intent was published as required. The hospital bonds were issued and, with additional funds received from the federal government and the Sisters of St. Agnes, the hospital was established.
Under the authority of G.S. 1939 Supp. 19-1856, the new hospital was leased on October 20,1941, to the Northwest Kansas Hospital Association, a Kansas corporation, which in turn subleased on October 21, 1941, to the Sisters of St. Agnes.
The Sisters of St. Agnes operated the hospital until October 10, 1973, at which time the lease was terminated and the hospital reverted to Thomas County. The Board of County Commissioners of Thomas County appointed a Board of Trustees pursuant to K.S.A. 19-1803 to take over management and operation of the hospital. The Board of Trustees continues to oversee the operation of the hospital.
The Thomas County Hospital, through its Board of Trustees, entered into an agreement' with Hospital Management Corporation, a Delaware corporation, for it to provide professional management of the hospital. Hospital Management Corporation has been employed by the hospital Board of Trustees for approximately 4 years and provides similar services to many hospitals throughout the United States.
Hospital Management Corporation also specializes in providing expertise in promoting, planning, constructing, equipping, and staffing new hospitals and assisting with the transition from an old facility to a new facility. On February 1, 1976, the Thomas County Hospital Board of Trustees and Hospital Management Corporation entered into a second agreement referred to as the Project Management Agreement. The objective of the Project Management Agreement is that a new hospital be constructed that will be properly planned as to size, equipment, staffing, etc., to meet the needs of the area at the lowest possible cost. The Board of County Commissioners ratified the Project Management Agreement on April 5, 1976. As a part of the agreement Hospital Management Corporation was to receive a fee of $200,000.00 for its services. This fee was contingent upon the completion and sale of the necessary bond issue and the successful promotion of the hospital became of prime concern to Hospital Management Corporation. The record also indicates that the Thomas County Board of County Commissioners entered into a contingent fee contract in the approximate amount of $66,000.00 with the then County Attorney for he and certain associates selected by him to do the legal work required by the proposed bond issue. There is nothing in the record to disclose whether these contingent fees were to be paid from the proceeds of the sale of the bonds or from other sources.
As required by the Regional Health Programs Act, (then K.S.A. 65-2a01, et seq.), a request for a certificate of need was presented on April 28, 1976, by Hospital Management Corporation and James D. Daher, as administrator of the hospital, to the Far Northwest Region Health Planning Council. Mr. Daher, as Chairman of the Far Northwest Region Health Planning Council, issued a letter dated April 29, 1976, to the Thomas County Commissioners advising that the Council had approved the request for new hospital facilities. K.S.A. 65-2a06 (since repealed) required, as a part of the request for a certificate of need, the applicant to furnish certain information to be considered by the planning agency in determining whether such a certificate should be issued. Included in the required information is a statement of the “projected cost estimates of capital expenditures and operating expenses.” The request for the certificate of need presented to the planning council on April 28, 1976, indicated estimated costs of construction, site development and equipment in a total amount of $3,015,000.00. Six days later, on May 3, 1976, the hospital trustees, acting under K.S.A. 19-1878, certified to the Thomas County Board of Commissioners that funds in the amount of $3,760,000.00 were needed to build, furnish and equip a new hospital. No explanation appears in the record of the discrepancy between $3,015,000.00 and $3,760,000.00.
That same day, the Board of County Commissioners passed a resolution authorizing and directing notice to be given to the electorate of Thomas County of the intention to issue bonds to provide funds to build and equip a hospital in accordance with K.S.A. 19-1878. Notice was published and protests were filed in sufficient numbers to require that the question of issuing bonds be voted on by the electorate of Thomas County.
On October 4, 1976, the Board of County Commissioners, by resolution, authorized the submission to the electorate, pursuant to K.S.A. 19-1878, of the proposition of issuing $3,760,000.00 in general obligation bonds for the purpose of constructing, furnishing and equipping a hospital. Notice, as required by K.S.A. 10-120, was provided by publication in the official county newspaper. In addition to the legally required notice, the proposition of issuing the bonds received extensive coverage by the local news media. There was a great deal of discussion, both pro and con, concerning the need for the hospital and whether the hospital would result in additional taxes. It was repeatedly pointed out that the existing hospital constructed in 1938-1941 had been self-supporting and although general obligation bonds were to be issued by Thomas County, it was anticipated that no taxes would be necessary to retire the bonds or operate the hospital.
The election was held on November 2, 1976, with a vote of 3,137 in favor of the bonds and 1,032 opposed.
This action was filed by plaintiffs on January 5, 1977, to enjoin the issuance and delivery of the bonds.
On June 2, 1977, the trial court sustained defendants’ motion for summary judgment and overruled plaintiffs’ motion for summary judgment. This appeal followed.
Appellants raise numerous points on appeal attacking the validity of the proceedings leading up to the issuance of the bonds. The trial court in its opinion pointed out:
“The issuance of bonds which plaintiffs seek to enjoin are to be issued under authority of K.S.A. 19-1878. If this statute does not apply to the Thomas County Hospital or does not apply under the procedure used here, the plaintiffs are entitled to an injunction.”
We are of the opinion K.S.A. 19-1878 does not apply to the case at bar. 1949 G.S. 19-1878 was the forerunner of our current statute. Pertinent parts of the original statute read:
“Whenever a county hospital has been established in any county under the provisions of article 18 of chapter 19 of the General Statutes of 1935 and acts amendatory thereof and supplemental thereto, and bonds have been issued or a tax levy made by the county as authorized by the election establishing such hospital, the board of county commissioners of said county shall, upon receiving the written certification of the board of trustees of said hospital, that proceeds from the bonds issued or taxes levied, plus all other funds available are insufficient to acquire a site, or build an addition to a present hospital or build and equip a hospital of the size and capacity necessary to supply the needs of said county and stating the amount needed to complete the erection and equipping of said hospital, issue additional bonds of said county if said original funds were raised by bond issue . . . but not to exceed one-half of the original amount authorized to be issued for the purpose of acquiring a site, erecting and equipping said hospital or addition thereto: . . . .” (Emphasis added)
The statute also included extensive provisions for protests leading to an election and limiting the amount of taxes that could be levied in the first instance and the amount of any additional taxes levied.
The statute has remained virtually unchanged except for modifications of the limitations on the amount of additional bonds which may be issued and a reduction in the percentage of protests required to force an election.
In 1961 the statute was amended to provide that the amount of additional bonds which may be issued could not exceed the original amount authorized.
In 1977 (K.S.A. 1977 Supp. 19-1878) the limitation on the amount of additional bonds which might be issued was eliminated altogether. This amendment in 1977 was enacted at the request and for the benefit of Thomas County and the bond issue here in question. The original bond issue of 1938, which established the existing Thomas County Hospital, was only in an amount of $15,000.00. The additional funds necessary at that time to establish the existing hospital were furnished by the federal government through the Works Progress Administration and by the Sisters of St. Agnes. It appears that the appellees, having attempted to proceed under K.S.A. 19-1878, found themselves in the embarrassing position of their proposed new bond issue being limited to $15,000.00 when they actually wanted $3,760,000.00. The 1977 amendment which removed the limitation was made retroactive in an attempt to salvage the Thomas County bond issue.
The legislative history of article 18, chapter 19 of K.S.A. and its forerunners reveals that the article consists of numerous pieces of special legislation, couched in general terms, and adopted from time to time since 1913 to allow or remedy an existing situation in some particular county. As a result we do not have a comprehensive county hospital code that can be uniformly applied and relied upon throughout the state.
“The fundamental rule of statutory construction, to which all others are subordinate, is that the purpose and intent of the legislature governs when that intent can be ascertained from the statute.” Easom v. Farmers Insurance Co., 221 Kan. 415, Syl. 2, 560 P.2d 117.
When a statute is plain and unambiguous the court must give effect to the intention of the legislature as expressed rather than determine what the law should or should not be. Lakeview Gardens, Inc. v. State, ex rel, Schneider, 221 Kan. 211, 557 P.2d 1286.
A reasonable reading of K.S.A. 19-1878 discloses no ambiguity which needs judicial construction if ordinary principles are applied to the interpretation of the statute in its entirety.
A careful study of K.S.A. 19-1878 reveals it was never intended to authorize bonds to build an entirely new hospital on a new site. The statute clearly contemplates a situation where, after the original bond issue (or tax levy), the hospital trustees discover the bonds authorized (or taxes levied) are insufficient “to acquire a site or build an addition to a present hospital, or build and equip a hospital of the size and capacity necessary to supply the needs of said county.” Any other construction of the statute would completely nullify the various limiting provisions formerly contained in the statute as to the amount authorized to be issued and the provision that the county may, upon proper certification, issue additional bonds to complete the erection and equipping of said hospital. We may inquire, “additional to what?” If the emphasized wording taken from the statute is to have any meaning it must refer to the original issue authorized to establish the hospital in the first instance. Appellees argue, and are supported by several opinions of various Kansas attorneys general, that the limiting proviso applies only to a tax levy made and not to original bonds issued. We think not. Such an interpretation completely ignores the limitations on additional tax levies and the use of the word “issued” in the limiting proviso of the statute. Taxes are not issued, and bonds are not levied. As appellees point out, it would be unrealistic and unreasonable in light of current economic conditions, or those of 1949 when the statute was enacted, to tie a limitation on a bond issue for a new hospital to the amount of a bond issue for a hospital built in 1938. Consequently, it appears obvious that the legislature intended the statute to be a method of supplementing an existing bond issue or tax levy which is found to be insufficient for its original purposes.
The overwhelming vote of the citizens of Thomas County indicates the desire and need for a new hospital and it is indeed unfortunate that the proceedings were not commenced under proper statutory authority. However, it is beyond the power of this court to grant relief to the electorate and the same may be rectified only by appropriate proceedings by the local county officials utilizing the proper statutory authority.
Appellants raise numerous other questions in their appeal, including allegations of misconduct and also questioning the legality and propriety of the contingent fee contracts with the county attorney and Hospital Management Corporation.
In view of the decision reached, it is not necessary for the court to consider the other points on appeal.
The judgment of the court below is reversed with directions to enter judgment for the plaintiffs.
Schroeder, C.J., and Owsley, J., dissenting.
. It is interesting to note that the opinions relied upon by appellees were all issued pursuant to requests inquiring about additions and/or improvements to existing facilities. None were in response to inquiries relating to the financing of an entirely new facility. (See opinions dated August 12, 1960, June 1, 1966, February 1, 1968, and December 4, 1973.) | [
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The opinion of the court was delivered by
Fromme, J.:
Craig Norton Glazer, special narcotics agent for the attorney general, was convicted by a jury of conspiracy to commit the crime of delivery of cocaine. This charge was filed under K.S.A. 21-3302, K.S.A. 1976 Supp. 65-4107 and K.S.A. 1976 Supp. 65-4127a. The first statute defines and makes conspiracy to commit a felony a crime. The second statute lists certain controlled substances including cocaine. The third statute makes it a felony for a person to deliver any controlled substance, such as cocaine, unless that person is currently registered with the State Board of Pharmacy or is exempt from registration and liability under K.S.A. 65-4116(c) and (d), or K.S.A. 65-4136.
At the trial Glazer’s defense rested upon the exemption from liability recognized in K.S.A. 65-4136(c) of the Uniform Controlled Substances Act which reads:
“[N]o liability is imposed by this act upon any authorized state, county or municipal officer engaged in the lawful performance of his duties.”
The 354 page record on appeal sets forth an interesting story of intrigue having to do with the illicit drug business and the participation of a narcotics agent in that illicit business. The defendant insists he was acting as an authorized state officer engaged in the lawful performance of his duties. The state denies any such authorization and charges that his actions were unlaw1 ful and far exceeded any permissible bounds.
We will attempt to keep the facts as brief as possible. The three conspirators named in the information were Craig Norton Glazer, Donald Lee Woodbeck and Greg Houston. As previously pointed out Glazer was a narcotics agent operating out of the office of the attorney general. Woodbeck was a wholesale dealer in illicit drugs living in Phoenix, Arizona. His merchandise was purchased in South America. His distribution system covered several states including Kansas. Greg Houston was one of his distributors living in Arizona. Houston had contacts with persons in various states, including Kansas. These persons made up his distribution system for the sale of illicit drugs to users. At the trial both Woodbeck and Houston testified for the state. From their testimony the following story unfolds.
In June, 1974, Glazer called Woodbeck and asked for his assistance in organizing a “big” narcotics arrest in Kansas. The two men had become close friends at a college in Arizona where Woodbeck had started his wholesale business in illicit drugs. Glazer advised Woodbeck that he was a narcotics agent for Vern Miller, the Attorney General of Kansas. Miller was running for the office of Governor of the State of Kansas and had promised the voters if he was elected a five-state agency would be organized to deal with the growing traffic in illicit drugs. The agency was to be funded by a federal grant. If Glazer could arrange an arrest involving a large sale of drugs he, Glazer, would receive recognition and a possible appointment as head of the five-state agency. The resulting publicity would enhance Miller’s chances for election. In turn if Glazer received the appointment he would have access to information on undercover activities which when relayed to Woodbeck would be invaluable to Woodbeck in continuing his illicit business.
Glazer asked Woodbeck to bring a pound or two of cocaine to be used in setting up a sale in Kansas which would result in an arrest. The plan was to use half of the cocaine to frame two unsuspecting persons to be arrested for the sale. The remaining half of the cocaine would be sold to cover the price Woodbeck paid for the cocaine. Woodbeck was to find two local people to sell the narcotics to Glazer. After all the details had been arranged Glazer was to advise the attorney general’s office and secure the presence of backup agents from the narcotics unit to take part in the final arrest and thus witness the “drug bust”.
Woodbeck arrived in Kansas City with the cocaine. Glazer and Woodbeck conferred about their ambitious plan and began working out the details on or about June 17,1974. Woodbeck had difficulty in obtaining the two “fall guys” who were to be arrested for the sale of the cocaine to Glazer. In addition Woodbeck needed someone to sell the other half of the narcotics. Woodbeck called his distributor, Houston, in Arizona who agreed to come to Kansas and assist in carrying out the scheme. After Houston arrived he learned that the arrest was to be “for real” and that those arrested would receive possible prison terms as a result of the scheme. He refused to furnish any of his people to make the “buy” but did agree to assist Woodbeck by acting as a big drug dealer who wanted to sell the drugs.
Woodbeck and Houston enlisted the aid of two unsuspecting black gentlemen, ostensibly to act as “backup men” for Houston the “big dealer”. They were to receive $500.00 each for accompanying Houston and Woodbeck to the place where the $14,000.00 sale of cocaine was to be consummated between Houston and Glazer. However, it was planned so that Houston at the last minute would be unable to accompany the two blacks and Woodbeck to the motel where the sale was to take place. The blacks were to take over and make the delivery to Glazer. Glazer would pay the $14,000.00 and the blacks were to take their $1,000.00 “off the top” and deliver the balance of $13,000.00 to Houston later. Woodbeck was posing as an underling of Houston. He would see to it that the blacks actually made the transfer of drugs to Glazer. It was planned between Woodbeck and Glazer that all the money and the drugs would be recovered at the time of the arrest.
The place of the purported sale was arranged at a motel in Kansas. The special agent in charge of the narcotics division of the attorney general’s office was advised of the time and place. Various agents were stationed outside the motel and in adjoining rooms believing that Glazer was going to make a “buy” from a “big dealer”.
At the appointed time Houston, Woodbeck and the two blacks got together. Houston placed the cocaine in a car belonging to one of the blacks and told them to get rid of the drugs. Houston said he was leaving to get something to eat and that the two blacks should bring the money to him later. They were to take charge because he, Houston, did not have much faith in Woodbeck.
When the two blacks and Woodbeck arrived at the motel Woodbeck got out of the car first, leaving the cocaine on the car seat, thinking the blacks would pick it up and bring it into the motel. However, the blacks did not react as expected. They called Woodbeck back to the car and he had to carry the drugs to the door of the motel room. The special agents waiting in the bushes knew that Woodbeck had been working with Glazer and thought it was odd that the blacks were not in possession of the drugs when they left the car and proceeded to the motel. At the door of the motel Woodbeck handed the drugs to the blacks as they entered the motel room. Glazer was present in the room. A short negotiation as to the price to be paid followed. $14,000.00 was the price agreed upon. Glazer handed $7,000.00 to the blacks after he had examined the cocaine. Glazer then' advised them he would get the balance of $7,000.00 from his car. He went out to his car, opened the trunk lid and then slammed the lid shut. This was the prearranged signal for the narcotics agents to move into the room and arrest the two blacks and Woodbeck. The arrest was made and the three were placed in handcuffs. Woodbeck was then taken from the room and released. The two blacks immediately began shouting that they had been framed. They were taken to jail.
This particular drug arrest then came under the scrutiny of the attorney general and his officers. Margaret Jordan, the district attorney of Johnson County, had previously complained to the attorney general about improper activities of his agents in making drug investigations and arrests in that county. Strong feelings had been engendered. In addition certain irregularities were observed by the officers who participated in this particular arrest. It appeared odd that Woodbeck who was assisting Glazer would have possession of $14,000.00 worth of cocaine and carry it to the motel before a sale had been completed. It appeared out of the ordinary for the two local blacks to be trusted with such a large quantity of drugs by a big Arizona dealer. For these and other reasons the attorney general began interrogating Woodbeck, Glazer and other special agents who had participated in the arrest. The foregoing facts came to light. The information obtained was made available to the Johnson County District Attorney and this and other prosecutions followed.
On appeal the defendant alleges that various trial errors occurred which deprived him of a fair trial. We have examined each of these alleged errors and find that defendant did have a fair trial. No reversible error has been shown. We will treat each of these alleged errors briefly.
Defendant suggests that the acts which form the basis for the present charge were committed by him as a narcotics officer carrying out his duties in an effort to detect and arrest those individuals who were violating the narcotics laws. It is argued that the trial court failed to properly instruct the jury as to the exemption from liability which he had under K.S.A. 65-4136(c) while acting as an authorized state officer engaged in the lawful performance.of his duties.
The court gave the following instruction:
“The defendant is charged with conspiring to violate K.S.A. 65-4127(a), 1973 Supp.
“K.S.A. 65-4127(a) provides: ‘It shall be unlawful for any person to manufacture, possess, have under his control, possess with intent to sell, sell, prescribe, administer, deliver, distribute, dispense or compound any opiates, opium or narcotic drugs, except as authorized in (The Uniform Control Substances Act).’
“You are further instructed that K.S.A. 65-4136(c) provides: 'No liability is imposed by (65-4127a) upon any authorized state, county or municipal officer engaged in the lawful performance of his duties.’ ” (Emphasis supplied.)
The emphasized portion of this instruction covered the substance of the defense. See State v. Taylor, 212 Kan. 780, 784, 512 P.2d 449. It was for the jury to determine whether defendant, an authorized state officer, was engaged in the lawful performance of his duties when he sought the help of an out-of-state drug wholesaler and arranged to have illicit cocaine brought into the state so as to arrange a sham sale. There can be no doubt from the evidence that defendant conspired with Woodbeck to have the illicit drug brought into Kansas and have it delivered. Half of the drug was to be delivered and sold to finance the total scheme. The other half was to be used in framing the unsuspecting blacks by delivering the same to them before the arrest. The acts of the defendant far exceeded the authority of a narcotics officer. This was established by the testimony of the attorney general and the defendant’s supervising officer. The evidence was sufficient to support the conviction. See State v. Sagebiel, 206 Kan. 482, 487-488, 480 P.2d 44; and State v. Nading, 214 Kan. 249, 255-256, 519 P.2d 714.
Some argument is made that the defendant acted as the purchaser of the drug and did not make a delivery. The defendant was neither charged nor convicted of delivery. He was charged and convicted of conspiracy to commit the crime of delivery.
Conspiracy as defined in K.S.A. 21-3302 consists of two essential elements: (1) An agreement between two or more persons to commit or assist in committing a crime, and (2) the commission by one or more of the conspirators of an overt act in furtherance of the object of the conspiracy. See State v. Daugherty, 221 Kan. 612, 562 P.2d 42. To prove a conspiracy to commit a crime it is not necessary that the ultimate crime intended be committed if both the agreement and an overt act in furtherance of the object of the conspiracy is proven. See State v. Roberts, 223 Kan. 49, 574 P.2d 164. The evidence introduced was sufficient to support the conviction and the instruction in the words of the statute exempting an officer if he was acting in the lawful performance of his duties was sufficient to cover the defense.
Defendant alleges that he did not have a fair trial because of publicity released by Margaret Jordan, the district attorney. The matter was submitted to the trial court on a motion to dismiss the case for misconduct. The trial court reprimanded the district attorney and noted a possible violation of the code of professional responsibility, but found no prejudice as to the defendant’s case and denied the motion. The record fails to disclose that a motion for change of venue was filed under K.S.A. 22-2616. Defendant has not affirmatively shown the conduct of the district attorney prejudicially affected his substantial rights. See State v. Thomson, 188 Kan. 171, 174, 360 P.2d 871. Generally unprofessional conduct of counsel before or during the trial of a case will not be sufficient to justify a new trial unless the opposing party is prejudiced so as to prevent a fair trial. See Schoonover v. State, 218 Kan. 377, 543 P.2d 881, cert. den. 424 U.S. 944, 47 L.Ed.2d 349, 96 S.Ct. 1412.
Defendant next complains of failure by the prosecution to advise defendant before trial of a change in the testimony of Woodbeck. In his original statement Woodbeck said that Houston brought the cocaine into Kansas. Later Woodbeck admitted this was not true. He testified at trial that he had brought the drug to Kansas. During the trial at the time this change in his testimony surfaced a motion to strike all of Woodbeck’s testimony was requested as a sanction for failure to advise the defendant. A second motion to produce the taped statement covering the change in the testimony was filed. The court entered a production order pursuant to K.S.A. 22-3213. An overnight recess was granted to permit defense counsel to listen to the tape and prepare any further defense he desired. Defendant cites cases where evidence helpful to the defendants was suppressed until after trial. This is not our present case. Evidence not disclosed to the defendant before trial is not suppressed or withheld by the state if the defendant has personal knowledge thereof, or if the facts become available to him during trial and he is not prejudiced in defending against these new facts. See State v. Walker, 221 Kan. 381, 383, 559 P.2d 381; and State v. Rueckert, 221 Kan. 727, 735-736, 561 P.2d 850.
Woodbeck and the defendant were coconspirators in the original plan and defendant knew who brought the drug into Kansas. There was no evidence of bad faith on the part of the prosecution. A continuance was granted, the prosecution brought out the change in the testimony of Woodbeck, and the defendant was given ample opportunity to re-examine all witnesses thereafter. A trial court is vested with wide discretion in imposing sanctions under K.S.A. 22-3212(7), and no abuse of discretion occurred in the present case.
Next the defendant objects to the lengthy information and the two bills of particulars filed pursuant to his motions. He cites inconsistencies in certain facts alleged as compared to the testimony of certain of the witnesses. Considering the lengthy recital of facts contained in these bills of particulars which included by reference the entire transcript of the preliminary hearing it is surprising there was not a greater variance. The inconsistencies pointed out are unimportant. The main purpose of limiting testimony during the trial to the facts set forth generally in the bill of particulars is to prevent a conviction on some other crime established by the evidence but not charged in the information. See State v. Frames, 213 Kan. 113, 515 P.2d 751; and State v. Craven, 215 Kan. 546, 527 P.2d 1003. On the present charge of conspiracy to deliver cocaine it made little difference which of the coconspirators brought the drug into Kansas. No variance of importance occurred in this case.
Defendant next argues prejudice from an improper comment of the prosecutor in closing argument. After reviewing the testimony of witnesses the prosecutor stated, . . . Donald Woodbeck for one testified and I believe truthfully, . . .” It is argued that such a statement lends the personal credence of the prosecutor to the testimony of the witness. Assuming, without deciding, that the remark was improper, it was inadvertent and the jury was admonished to disregard the remark. It has not been established that defendant’s rights were in any way prejudicially affected and the contention is without merit. See State v. Bilby, 194 Kan. 600, 603, 400 P.2d 1015; and State v. Murrell, 215 Kan. 10, 13, 523 P.2d 348.
Defendant next contends the court erred in refusing to grant discovery of certain records in the office of the attorney general. Under K.S.A. 22-3212(2) the court may order discovery of papers in possession of the prosecution “upon a showing of materiality to the case and that the request is reasonable.” The request for production in the present case covered any and all drug case files in the attorney general’s office in which Glazer and three other special agents had collectively or separately participated, plus all files in the attorney general’s office where deception had been employed to obtain an arrest. In addition defendant requested all similar files and records from Johnson County. The request was made without establishing materiality and on the face of this request it was unreasonable in scope. See State v. Brown, 220 Kan. 684, 689, 556 P.2d 443. K.S.A. 22-3212 places in the trial court a broad discretion to require the prosecuting attorney to disclose to the defendant documents and other tangible objects which are or have been within the possession or control of the prosecution. In order to obtain such discovery the defendant has the burden of showing the materiality of the information and the reasonableness of the request. (State v. Humphrey, 217 Kan. 352, 537 P.2d 155.) There was no abuse of discretion by the trial court in denying the request.
The defendant argues he did not have a fair trial because he was unable to determine which agreement and which delivery of drugs was being charged against him. In reviewing the record we find that the information was amended during trial to insert June 17, 1974, as a definite date for the alleged conspiracy among Glazer and Woodbeck and others. It is apparent that the particular delivery contemplated by the conspiracy covered the delivery which was to be made resulting in the arrest of the two blacks. Surplusage in the information may be disregarded. We do not feel that defendant was prejudiced in his defense even though the information set forth many unessential facts.
Defendant quarrels with various instructions which the court submitted to the jury. It would serve no useful purpose to comment on each individual instruction. We have carefully reviewed the instructions given and they were sufficient to cover the issues in the case. The elements essential to establish the crime charged were adequately set forth. See State v. Potts, 205 Kan. 42, Syl. 2, 468 P.2d 74; and PIK Criminal 55.03. It is not necessary to define the phrase “reasonable doubt” as used in the court’s instructions. See State v. Taylor, supra, p. 785. A proper instruction on “reasonable doubt” as applied to all kinds of evidence gives the jury an appropriate standard upon which to make a determination of guilt or innocence; to instruct further on the probative force of circumstantial evidence is to invite the confusion of semantics. (State v. Wilkins, 215 Kan. 145, 523 P.2d 728.) We note that the instructions recommended in PIK Criminal 52.02 on burden of proof, presumption of innocence and reasonable doubt were given. No error appears in the instructions given in this case.
It is contended the trial court erred in permitting testimony of other crimes and in not properly limiting the purpose for which such testimony could be considered by the jury. There was testimony by R. C. Bonds that Glazer and Woodbeck came to his home the week prior to June 24, 1976. Glazer was carrying a satchel. They asked Mr. Bonds if he knew of anyone who wanted to purchase some cocaine. Bonds was shown the content of the satchel which was a white powder. He consumed a small amount of the powder which was left behind by Woodbeck and Glazer. The substance he consumed tasted like cocaine.
The trial court ruled that the testimony concerned a possible offense which was sufficiently proximate in time and similar in nature to be admissible. The jury was admonished to consider the evidence only for the purpose of showing knowledge or intent on the part of the defendant pursuant to K.S.A. 60-455.
The defendant questions the probative value of the evidence and its relevancy. Intent was an important issue in this case and the evidence was admissible under the test set forth in State v. Faulkner, 220 Kan. 153, Syl. 1, 551 P.2d 1247, and prior cases. In addition evidence otherwise relevant in a criminal prosecution is not rendered inadmissible because it may show some crime other than that charged. (State v. Calvert, 211 Kan. 174, Syl. 6, 505 P.2d 1110.) In State v. Solem, 220 Kan. 471, 475-476, 552 P.2d 951, we examined a set of facts almost identical to the facts in the present case where the same question was raised.
In Solem the defendant approached a narcotics agent and asked him if the agent would like to buy a drug. This incident did not form the basis for the offense charged in Solem. We held the evidence to be admissible independently of K.S.A. 60-455.
The evidence of the attempt to sell cocaine to R. C. Bonds was admissible in this case. The incident tended to show the act of the coconspirators in carrying out their overall plan. Half of the cocaine was to be sold to finance their alleged scheme and the other half delivered to the “fall guys” so defendant could make an arrest.
Other minor contentions have been raised on appeal and we have examined the same. They are without substantial merit.
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Per Curiam:
This is an original proceeding in discipline commenced against the respondent, Judge Daniel D. Dwyer, of the Court of Common Pleas of Sedgwick County. The Commission on Judicial Qualifications found that Judge Dwyer had violated various Canons of Judicial Conduct in seven specific instances, and it held in his favor on several other charges.
The Commission recommended public censure and suspension for a period of thirty days without pay for the seven violations established. Respondent promptly filed a petition to reject the Commission’s recommendations, and both the respondent and the Commission have filed briefs. The matter was argued orally and has been submitted.
The applicable portions of the Canons of Judicial Conduct here involved are:
Canon 2 A. “A judge should . . . conduct himself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.”
Canon 3 A. (2) “A judge should maintain order and decorum in proceedings before him.”
Canon 3 A. (3) “A judge should be patient, dignified, and courteous to litigants, jurors, witnesses, lawyers, and others with whom he deals in his official capacity . . .”
Canon 3 A. (4) “A judge should accord to every person who is legally interested in a proceeding, or his lawyer, full right to be heard according to law, and, except as authorized by law, neither initiate nor consider ex parte or other communications concerning a pending or impending proceeding. . . .” 214 Kan. xciv, xcv.
The record before the Commission consisted of the testimony of numerous witnesses and various exhibits. Transcripts totaling almost five hundred pages have been filed. We have carefully examined the record, and will discuss the charges in the order in which they appear in the findings of fact and conclusions of law of the Commission.
The first charge against respondent was that he violated Canon 2 A. by statements made in the course of an interview which was reported in the Wichita Sun on May 14, 1975. The interview followed the publication of the results of a poll of members of the Wichita Bar Association, which results were not flattering to the respondent. He, in turn, was critical of lawyers in the reported portion of the interview. Although he made laudatory remarks about the Sedgwick County judges during the course of the interview, that portion of the interview was not included in the newspaper story. Considering the entirety of the statements made, and the background thereof, we hold that the statements reported do not constitute a violation of Canon 2 A.
The second charge is that respondent violated the provisions of Canons 3 A. (2) and 3 A. (3) by regularly holding criminal arraignments in chambers in spite of the fact that by so doing, security problems were enhanced, and the order and decorum of the proceedings were adversely affected. Personnel from the offices of the clerk, the marshal, and the district attorney, testified that Judge Dwyer held more than fifty per cent of the arraignments in traffic and other misdemeanor cases, and first appearances in felony cases, in chambers. This necessitated the holding of some defendants in the judge’s library while others were appearing before him in chambers. The presence of a deputy clerk, defendants, attorneys, marshals, bondsmen, and friends created crowded conditions in both the library and the chambers. The clerk had no table or other work space in chambers, and held files on her lap or piled them nearby on the floor. Extra marshals were required. In the event of guilty pleas, the judge proceeded to make final disposition of the cases in chambers, imposing fines, jail sentences or probation. Most of the time Judge Dwyer’s courtroom was available to him, but he elected to conduct these proceedings in chambers even though his fellow judges, the marshal and the clerk voiced objections.
We are aware that certain judicial proceedings are quite frequently held in chambers. These include the holding of pretrial conferences in civil cases, and the holding of jury instruction conferences during trial. However, we conclude that arraignments and initial appearances in criminal cases are not the type of proceedings to be held in chambers. These proceedings should be conducted in a courtroom if one is available, and particularly is this true since a guilty plea may be entered, and sentence may be imposed. Exceptions may properly be made when a defendant is hospitalized and unable to appear in court, or where all courtrooms are in use and a judge must of necessity utilize other facilities. But the regular holding of such proceedings informally in chambers is shown by the evidence before us to create security problems and to be wholly inconsistent with the proper conduct of a court. We conclude that a violation of Canon 3 A. (2) is established.
The third charge is that Judge Dwyer violated Canons 3 A. (2) and 3 A. (3) while conducting the first appearance of a defendant on a felony charge in chambers. A deputy marshal testified that he had taken a young black woman before Judge Dwyer in his chambers. After the arraignment, the defendant asked the judge a question and “he advised her to sit there and shut up. At that point she advised the Judge that she didn’t believe she should be treated that way, that she should be treated like a human being, not an animal. At that time I was told by the Judge to take her and . . . ‘throw her ass’ out of his chambers. I went over to the woman, tried to calm her down and got her to the door and escorted her out of his chambers.”
The evidence of this incident is clear. We hold that by this conduct the respondent violated Canons 3 A. (2) and 3 A. (3).
The fourth charge is that the respondent violated Canons 3 A. (2) and 3 A. (3) during the trial of a traffic charge against Clement R. Scoggin. Mr. Scoggin was not represented by counsel. He was charged with driving 66 miles per hour in a posted 55-mile zone. He admitted that he could have been driving 60 miles per hour, but he denied that his speed was 66 miles per hour. Two assistant district attorneys who were present in the courtroom testified that at the conclusion of the evidence, Judge Dwyer announced that he was finding Mr. Scoggin guilty. Mr. Scoggin inquired several times whether he was being found guilty of driving 60 miles per hour or 66 miles per hour. Judge Dwyer replied, “It doesn’t make any difference,” and imposed a fine of ten dollars plus court costs. The defendant again asked whether the court was finding him guilty of driving 60 miles per hour or 66 miles per hour. Judge Dwyer then raised the fine to twenty-five dollars and costs, called the marshal, and committed Mr. Scoggin to custody until the fine and costs were paid.
The record indicates that Mr. Scoggin had prior moving violations, and that a conviction of driving 11 miles per hour above the posted limit would materially affect his driving record, while a conviction for driving only 5 miles per hour above the posted limit would not. Judge Dwyer was not patient and courteous to the litigant before him, and his actions constitute a clear violation of Canon 3 A. (3).
The fifth charge relates to a visit to Judge Dwyer’s office by Mr. Mike Burlingame. Mr. Burlingame testified in substance that on about November 22, 1974, he received a telephone call from his son; he went to the jail to see him and found that his young son had been sentenced to confinement for thirty days. Finding that Judge Dwyer had imposed the sentence, Mr. Burlingame went to respondent’s chambers to talk with him. Mr. Burlingame explained to Judge Dwyer who he was, and that his son had never been in serious trouble before. He asked what he could do to get his son out of jail. Judge Dwyer made no response, but picked up the telephone and called the marshal’s office. Mr. Burlingame waited but the judge said nothing to him. In a few moments two officers appeared and Judge Dwyer said, “Evict this man from my office.” The officers did so.
There is nothing in the record to indicate that Mr. Burlingame menaced or threatened the judge, or that he raised his voice, used objectionable language, or caused any disturbance. Under the circumstances disclosed by the record, we hold that Judge Dwyer’s conduct on this occasion constituted a violation of Canon 3 A. (3).
The facts upon which the sixth charge is based arose during the trial of a misdemeanor charge against Gregory Cotton. An assistant district attorney, who presented the state’s case, testified that at the close of the state’s evidence, Judge Dwyer told the defense not to bother to introduce any evidence, and as a result the defense rested without calling witnesses who had been subpoenaed. Respondent contended, during his testimony, that he was attempting to prevent the youthful defendant from perjuring himself. However well motivated Judge Dwyer may have been, he effectively foreclosed the defense from presenting its side of the dispute, thus giving the appearance of impropriety and denying to the defendant his full right to be heard. This action constituted a violation of Canon 3 A. (4).
The seventh and final charge is that the respondent violated Canons 3 A. (3) and 3 A. (4) during the trial of a small claims case, Frye v. The School Board of Valley Center. Mr. Frye testified that he subpoenaed five witnesses. When he appeared in court, none of the witnesses were there. He proceeded to present his case without them, lost it, and found out later that Judge Dwyer had released the witnesses without his knowledge. Judge Dwyer made no explanation to Mr. Frye, and said nothing during the trial about releasing the witnesses.
Judge Dwyer testified that an attorney for the school board came in and gave him “a general idea of what the factual situation was.” The judge then read the court file, and two hours before the case was to be heard he called the board’s attorney and excused the witnesses. He told the attorney that he would go ahead and hear the plaintiff’s evidence, and then if it appeared that there was a purpose in these witnesses coming in, he would continue the case and hear them later. He heard the plaintiff’s case, decided that plaintiff could not recover in any event, and entered judgment accordingly. He did not mention his conversation with counsel or explain his release of the witnesses to the plaintiff.
Judge Dwyer failed to afford Mr. Frye the full right to be heard which is mandated by Canon 3 A. (3). The evidence of this violation is undisputed.
Respondent raises a number of constitutional issues, all of which were fully discussed and decided by this court in In re Rome, 218 Kan. 198, 542 P.2d 676. We adhere to that decision and need not repeat what we said there.
The six breaches of the Code of Judicial Conduct reflect adversely upon the judiciary of this state. Patience, courtesy, dignity, and the appearance of fairness and objectivity were lacking. Considered together, these incidents show a course of conduct which demonstrated on the part of Judge Dwyer an intemperate, undignified and discourteous attitude toward and treatment of litigants and members of the public who came before him.
Since Daniel D. Dwyer is no longer serving in a judicial capacity, the recommendation of the Commission on Judicial Qualifications that he be suspended without pay for a period of thirty days is moot.
It is ordered that Daniel D. Dwyer be publicly censured by this court, and that he pay the costs of this proceeding.
Mr. Justice Holmes, not participating. | [
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The opinion of the court was delivered by
Owsley, J.:
This is a direct appeal from a jury verdict of guilty of the offense of second degree murder (K.S.A. 21-3402). Defendant had been living with the victim, Shirley Sanders, for about three years.
The facts which led to Shirley Sanders’ death are not in serious dispute. On the afternoon of December 28, 1974, defendant arrived home from work, planning to meet Shirley later at a friend’s house. Before leaving home, defendant had two mixed drinks and got his handgun, ostensibly for the purpose of taking it to the friend for later use to herald in the new year. Defendant then drove to meet Shirley and his friend, Charlie Phillips.
While at Phillips’ house defendant had another drink, several beers and straight gin, all on an empty stomach. About midnight defendant and Shirley went to the 904 Club, a Wichita nightspot owned by Phillips. Because of defendant’s condition he did not remember how he got to the club.
Shortly after defendant arrived at the club, he got into a scuffle. Phillips broke it up and threatened to call the police if there was further trouble, then turned and walked away from defendant. About that time Shirley spotted a girl friend and stated she was going to get the friend to take her to her father’s house. Defendant intervened and told Shirley she wasn’t going anyplace, that she came to the club with him and would leave with him. Defendant and Shirley left the girl friend and walked to the bar. A few seconds later Phillips and Shirley’s girl friend heard Shirley say to defendant, “[Y]ou always talk about shooting me, so shoot me God damn it, shoot me. ... I know you got your gun, but I am not afraid of you.” Phillips went to defendant and asked if he had a gun; whereupon defendant pulled out a pistol and fired four shots, three striking Shirley and killing her.
After the shooting, defendant left the club and went to the residence of a friend, Cullen Becknell. When defendant went into the house he stated to Cullen, “Call me a lawyer I think I shot Shirley, but I don’t think I killed her.” Cullen’s wife, Clara, testified that defendant said he shot Shirley because she just pushed him a little too far.
When police arrived defendant was sitting at a table with a pistol near his right hand. Defendant was advised of his rights and was arrested. Thereafter, defendant told officers his gun had been used to shoot Shirley Sanders.
The testimony comprising the state’s case came from twelve witnesses. Defendant was the only person to testify on his behalf. Thirty pages of defendant’s testimony were transcribed, but another fifty pages were lost. On order of the district court an attempt was made to reconstruct the missing transcript through testimony of defendant’s trial attorney. The lost transcript formulates defendant’s first point on appeal.
Defendant argues the incomplete transcript makes meaningful appellate review impossible and deprives him of a substantive right. He asks that the judgment and verdict be set aside and a new trial ordered. To buttress his argument defendant cites Griffin v. Illinois, 351 U.S. 12, 100 L.Ed. 891, 76 S.Ct. 585, wherein the United States Supreme Court held that the equal protection clause of the United States Constitution requires a transcript be provided an indigent defendant where it would be provided to a defendant who had the ability to pay for it.
The same rule does not apply when all or a portion of the transcript is unavailable because stenographic notes are lost or otherwise missing. (State v. Jefferson, 204 Kan. 50, 460 P.2d 610.) In such instances provision is made for reconstructed records for appellate review. (See Rule No. 6[m], Rules of the Supreme Court of Kansas, 214 Kan. xxv [now Rule No. 3.04], 220 Kan. xiv [Adv. Sheet No. 2].) Such records have long been recognized and approved. (State v. Lewis, 220 Kan. 791, 556 P.2d 888; State v. Jefferson, supra at 52; State v. Allen, 111 Kan. 3, 206 Pac. 340.)
The inability of the state to provide a full transcript of the trial proceedings does not entitle a defendant to a new trial per se. Before defendant can claim he is entitled to a new trial he must demonstrate that despite a good faith effort it is impossible to reconstruct the missing portion of the record and this precludes effective appellate review of the issues. (State v. Jefferson, supra.)
In the instant case defendant’s trial counsel was called to testify as to his recollection of defendant’s testimony. Although he had no notes of the trial, he did have notes of a conference between himself and defendant. Based upon his independent recollection he further remembered there was no extensive cross-examination of defendant and no “serious dispute on anything.” Counsel indicated that defendant basically testified he was too intoxicated to remember the shooting and therefore showed a lack of malice. There appears to be no serious difference between the reconstructed testimony and that preserved by transcript; therefore, we find no prejudice to defendant which requires reversal.
The rest of defendant’s claims of error relate to instructions given by the trial court. The trial court instructed on first and second degree murder and voluntary and involuntary manslaughter, using PIK (Criminal) instructions. The court defined “maliciously,” “deliberately,” “wilfully,” and “intentionally,” using PIK (Criminal) 56.04 (a)-(d). The court did not define “heat of passion” as set out in PIK (Criminal) 56.04 (e). There was an instruction on the effect of voluntary intoxication. The jury was instructed on defendant’s presumption of innocence, weight of the testimony qí the witnesses, and the duty to reach a verdict in light of all the evidence.
It is to be noted that none of the objections to instructions now raised were presented to the trial court; therefore, our scope of review is limited to a determination of whether the instructions are “clearly erroneous.” (K.S.A. 22-3414[3]; State v. Birch, 221 Kan. 122, 558 P.2d 119; State v. Nesmith, 220 Kan. 146, 551 P.2d 896; State v. Suing, 210 Kan. 363, 502 P.2d 718.) An instruction is clearly erroneous when the reviewing court reaches a firm conviction that if the trial error had not occurred there was a real possibility the jury would have returned a different verdict.
Defendant first complains because the jury was instructed that “[m]aliciousness may be inferred from the fact the homicide was committed with a deadly weapon.” We find no fault with that instruction, as that precept has long been the accepted law in this state. (State v. Wright, 219 Kan. 808, 549 P.2d 958; State v. Hamilton, 216 Kan. 559, 534 P.2d 226; State v. Blake, 209 Kan. 196, 495 P.2d 905; State v. Greenwood, 197 Kan. 676, 421 P.2d 24; State v. Donahue, 197 Kan. 317, 416 P.2d 287; State v. Dull, 67 Kan. 793, 74 Pac. 235.)
The further argument is made that reference to “deadly weapon” is prejudicial because it singles out a particular piece of information and causes the jury to focus upon it. An instruction to the jury that malice may be inferred from the use of a deadly weapon does not draw undue attention to that particular item of evidence when the jury has been instructed to determine its verdict from all the evidence.
Defendant also argues the jury was improperly instructed as to the meaning of the words “wilfully” and “intentionally.” The instruction was verbatim from PIK (Criminal) 56.04 (c) and (d) and conforms to the definitions of those terms as set out in K.S.A. 21-3201. The court’s instruction was proper. (See, State v. Birch, supra; State v. Lassley, 218 Kan. 752, 545 P.2d 379; State v. Osbey, 213 Kan. 564, 517 P.2d 141; State v. Osburn, 211 Kan. 248, 505 P.2d 742.)
Finally, defendant argues the trial court committed error by failing to define “heat of passion.” While the term has often been defined and explained in previous opinions of this court (State v. Clark, 214 Kan. 293, 521 P.2d 298; State v. Stafford, 213 Kan. 152, 515 P.2d 769; State v. Roy, 203 Kan. 606, 455 P.2d 512; State v. McDermott, 202 Kan. 399, 449 P.2d 545, cert. denied, 396 U.S. 912, 24 L.Ed.2d 187, 90 S.Ct. 226; State v. Johnson, 201 Kan. 126, 439 P.2d 86), it is not a term which is so foreign to the vocabulary of the average juror as to require definition.
The term “heat of passion” accompanied the preceding words “upon a sudden quarrel” in the instruction on voluntary manslaughter. From a reading of the instruction as a whole there was little likelihood the jury was confused or forced to speculate as to the meaning of “heat of passion.” (State v. Sparks, 217 Kan. 204, 535 P.2d 901.)
We find no reversible error and the judgment is affirmed. | [
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The opinion of the court was delivered by
Fromme, J.:
Charles D. Roberts, Robert Crittenden, James E. Smith and Robert L. Taylor were jointly charged in a five count information with various crimes arising from two separate incidents which occurred on February 12 and 13 respectively. At trial each defendant was represented by separate counsel. The joint trial resulted in one or more convictions against each defendant. On appeal one record of the trial was filed but each appellant filed a separate brief raising various points on appeal. The 33 points raised do not affect the convictions of all appellants and in the interest of brevity we will discuss only those points necessary to dispose of the appeals and which will necessarily arise on retrials.
The first incident which gave rise to four of the five counts will be referred to as the Fletcher incident. It occurred on February 12 and involved all four appellants. Myrl (Tex) Fletcher, the victim, was living in an apartment building in Wichita. Gary Adams and Cindy Fanning were living together in a separate apartment in the same building. Gary and Cindy were previously acquainted with defendant Roberts and they were present in the Fletcher apartment when Roberts quarreled with Myrl (Tex) Fletcher on the evening of February 11. Gary and Cindy were awaked at 3:30 a.m. on February 12 by all four defendants. The four defendants sat in Gary Adams’ apartment and talked for some time. Roberts began “talking about going over to Tex’s house.” Cindy had previously agreed to clean the Fletcher apartment and had a key to the apartment. She gave the key to Roberts. Roberts knew where Fletcher kept a pistol in his apartment. He took the key and left. When he returned he had the pistol and a bottle of wine. Cindy testified that “they” were talking about robbing Tex. She did not want to remain in Gary’s apartment so arrangements were made for appellant Smith to take her and Gary to a friend’s home some distance away.
Fletcher testified that he was awakened between three and five a.m. on February 12 by a noise in his living room. He saw two people in the shadows, one taller than the other and both in men’s clothing. The two ran into the kitchen and poked “something” around the corner. They told him to get down on his hands and knees. He thought the “something” was a shotgun. He was told “Don’t worry, we have already got your gun.” At that time he saw the television, tape deck and turntable were gone from his credenza. The intruders took about $38.00 from his trouser pocket, cautioned him to remain on the floor and then left. He heard the front door open and close. The door glass was shattered. A car started outdoors and left the area. He noticed it was 4:15 a.m. when he called the police. Fletcher identified the articles taken from his apartment which included the pistol.
The second incident which gave rise to the fifth count in the information will be referred to as the Wishing Well incident. On February 13, 1975, shortly after 12:00 a.m. two men entered a bar in Wichita called the Wishing Well. One man was wearing a mask and carrying a shotgun. The other was carrying a pistol similar to the one taken from the Fletcher apartment. The man with the pistol had the manager, Braxton Bailey, empty the contents of the cash register into a canvas bag. Approximately $135.00 was obtained from the register. The robbers took Bailey’s wallet containing identification and credit cards. Although the witnesses in the Wishing Well could not make positive identification of the robbers, appellants Crittenden and Taylor were later stopped and frisked. Crittenden had the contents of Bailey’s wallet on his person.
As a result of these two incidents one information was filed. Roberts, Crittenden, Smith and Taylor were charged with aggravated robbery and with conspiracy to commit aggravated robbery in connection with the Fletcher incident. Roberts alone was charged with aggravated burglary and misdemeanor theft of the pistol in connection with the Fletcher incident. In addition Crittenden and Taylor were charged in count five with aggravated robbery in connection with the Wishing Well incident.
We will first consider the appeal of appellant Smith. He was charged and found not guilty of the aggravated robbery of Fletcher. He was charged and found guilty of conspiracy to commit aggravated robbery in connection with the Fletcher incident.
Our conspiracy statute provides:
“A conspiracy is an agreement with another person to commit a crime or to assist to commit a crime. No person may be convicted of a conspiracy unless an overt act in furtherance of such conspiracy is alleged and proved to have been committed by him or by a co-conspirator.” (K.S.A. 21-3302 [1].)
In State v. Daugherty, 221 Kan. 612, 562 P.2d 42, this court holds:
“Conspiracy as defined by K.S.A. 21-3302 consists of two essential elements: (1) An agreement between two or more persons to commit or assist in committing a crime and (2) the commission by one or more of the conspirators of an overt act in furtherance of the object of the conspiracy.” (Syl. 4.)
To prove a conspiracy it must be established that the conspirators had a mutual understanding or tacit agreement, a meeting of the minds, for the accomplishment of the common purpose. This meeting of the minds may be expressed or implied from the acts of the parties. (15A C.J.S., Conspiracy, § 40, pp. 734-735.) However a conspiracy to commit a crime is not established by mere association or knowledge of acts of the other parties. There must be some intentional participation in the conspiracy with a view to the furtherance of the common design and purpose. (15A C.J.S., Conspiracy, § 39, pp. 733-734.)
After carefully reviewing the evidence in the present record this court cannot find any mutual understanding or tacit agreement by Smith for the accomplishment of the aggravated robbery of Fletcher. It is true he accompanied Roberts, Crittenden and Taylor when they arrived in the apartment of Gary Adams. Smith was present and knew of the plans which were thereafter made. However, when Cindy Fanning, the state’s principal witness to the conspiracy, was asked if Mr. Smith said anything during the planning stages her answer was “No.” Thereafter, Roberts obtained the key from her and got the pistol from Fletcher’s apartment. There was no evidence introduced to establish that Smith entered into any agreement to rob or to participate in the robbery of Fletcher. Before the actual robbery occurred Smith left the area and drove Gary Adams and Cindy Fanning to a friend’s house. There was no evidence of participation by Smith.
The test for granting a judgment of acquittal has been stated many times. See State v. Gustin, 212 Kan. 475, Syl. 3, 510 P.2d 1290, and State v. Wilson & Wentworth, 221 Kan. 359, 362, 559 P.2d 374. We need not iterate the rule. We conclude from the evidence in the record that as a matter of law the jury could not reasonably find Smith guilty of the conspiracy beyond a reasonable doubt and Smith’s motion for acquittal should have been sustained.
Accordingly the judgment convicting James E. Smith of conspiracy to commit aggravated robbery against Myrl W. Fletcher is reversed and it is ordered he be released from the sentence imposed thereon.
We turn next to a point raised by Roberts and Smith concerning improper joinder. In view of our previous outright reversal of Smith’s conviction our decision on this point affects Roberts’ appeal only. He was charged and convicted of aggravated robbery, conspiracy to commit aggravated robbery, aggravated burglary and misdemeanor theft of a pistol in connection with the Fletcher incident. He was not charged and there was no evidence introduced connecting him with the Wishing Well incident.
Counsel for Roberts moved for a separate trial, assigning as his reasons that the state’s evidence at the preliminary hearing as to the Wishing Well incident was wholly unrelated to the crimes with which he was charged.
The controlling statute is K.S.A. 22-3202 (3) (now 1976 Supp.) which provides:
“Two or more defendants may be charged in the same complaint, information or indictment if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting the crime or crimes. Such defendants may be charged in one or more counts together or separately and all of the defendants need not be charged in each count.”
There was no evidence that Roberts participated in the Wishing Well incident. There was no evidence the two crimes were connected or that the robbery at the Wishing Well was planned at the time the Fletcher robbery was planned. The theft of the pistol from Fletcher’s apartment by Roberts was not for the purpose of securing its use at the Wishing Well.
In State v. Williams & Reynolds, 217 Kan. 400, 536 P.2d 1395, this court emphasized the last part of this statute, holding it was proper to try the defendants, Williams and Reynolds, together for aggravated robbery although Reynolds was also charged with unlawfully possessing a pistol. This court approved the trial court’s reasoning that the possession of the revolver was part of the initial crime and joinder was therefore proper. Here, however, Roberts was not charged in the Wishing Well incident. The attempt of the state to identify the pistol taken from Fletcher was not for the purpose of tying Roberts to the Wishing Well robbery. Taylor and Crittenden were the only ones charged in the robbery at the Wishing Well.
The statute K.S.A. 22-3202, now amended, speaks about two different matters, paragraphs (1) and (2) the joinder of charges against a single defendant and paragraph (3) the joinder of defendants. In State v. Adams, 218 Kan. 495, 505, 545 P.2d 1134, the rules governing joinder of charges are set forth with respect to a single defendant charged with separate crimes. In such case joinder if within the guidelines of the statute rests in the sound discretion of the trial court. The same is true when two or more defendants have participated in a crime or separate crimes when all have participated in all crimes charged. See State v. Cameron & Bentley, 216 Kan. 644, 533 P.2d 1255.
Our present case presents an entirely different situation. We have different crimes arising from two unconnected incidents or transactions. Two of the defendants, Roberts and Smith, did not participate and were not charged with any crime arising from the Wishing Well incident. The two transactions were not a part of a common scheme.
1 Wright’s Federal Practice and Procedure, pp. 322-324, 326-329, discusses Federal Rule 8 (a) and (b), which is the same as K.S.A. 22-3202 (1) and (3). There the discussion specifically includes the situation “in which two defendants are jointly charged with committing an offense, and there is an unrelated charge that on some other occasion one of the defendants committed a similar offense. Again joinder is not permitted. . . .” (pp. 325-326.)
This discussion also states:
... If joinder is improper, severance is not a mere matter of discretion, and the overwhelming weight of authority is that a joint trial cannot be regarded as harmless error. . . .” (pp. 328-329.)
and also:
"... If there has been misjoinder, the trial court has no discretion to deny the motion, and the appellate court may not consider the failure to do so harmless error. . . .” (p. 337.)
The conclusions expressed in Wright’s Federal Practice and Procedure appear to coincide with those reached by drafters of the Standards Relating to Joinder and Severance, as finally approved by the American Bar Association House of Delegates. (See approved draft ABA Standards for Criminal Justice, Joinder and Severance, p. 13.)
We conclude two or more defendants may be joined and tried together (1) when each of the defendants is charged with accountability for each offense included, or (2) when each of the defendants is charged with conspiracy and some of the defendants are also charged with one or more offenses alleged to be in furtherance of the conspiracy, or (3) when in the absence of a conspiracy it is alleged the several offenses charged were part of a common scheme or were so closely connected in time, place and occasion that proof of one charge would require proof of the others.
We further conclude if two or more defendants have been tried together and none of the requirements in the preceding paragraph have been met a misjoinder results and is an absolute ground for reversal and separate trials. (See Vernon’s Kansas Statutes Annotated, Code of Criminal Procedure, § 22-3202, n. 10, p. 669; and Wright’s Federal Practice and Procedure, supra.)
Therefore the judgment and convictions of Charles D. Roberts are reversed and the case as to him is remanded for a new trial.
We turn now to a point raised by all four defendants and in view of our decision on the appeal of James E. Smith this point concerns only the appeals of Roberts, Crittenden and Taylor. The point relates to the admissibility of a confession or statement made by Charles D. Roberts to Officer Jerry Fraipont of the Wichita robbery squad, which statement implicated the other defendants in the Fletcher robbery.
In advance of trial a lengthy hearing was held on a motion to suppress as provided for in K.S.A. 22-3215, commonly referred to as a Jackson v. Denno hearing. At the close of the hearing the court made the following ruling:
“THE COURT: Well, it is pretty basic that in order for a statement or admission to be voluntary, insofar as voluntariness is defined under Miranda, and like cases, the statement or admission must not only be free of any physical or psychological threats, the statement must be free of any encumbrances of promises upon which the declarant might rely. And those prerequisites have to be weighed in the light of the individual who is making the statements, and the testimony in this case was that there were statements that there would be more leniency with cooperation, that if the story wasn’t correct, why, it could result in heavier charges being filed, and I think with the statement to the effect if charges could be substantiated. But those statements have to be construed to be a promise, and coupled with the testimony of Dr. Kurth in this case, knowledge of happenings in and of itself does not give rise to the voluntariness of the statement. The surrounding circumstances and events in the instant case showed that up until the time, at least as far as the evidence is concerned, that statements were made concerning possible leniency or possible resulting hardships, no statement was made by the defendant Roberts.
“This statement was under the law and the facts of this case and the testimony of the expert witness not intelligently and voluntarily given. The motion to suppress the statement is sustained.”
Roberts testified at the trial in his own behalf. On rebuttal the state again proposed to introduce this involuntary statement of Roberts by calling Officer Fraipont. The proposal was objected to and argued outside the presence of the jury. The court then ruled that since Roberts had taken the witness stand “he waived his right against self-incrimination.” Officer Fraipont was then called by the state and testified. He was permitted to iterate the involuntary statements by Roberts which implicated Roberts and the other codefendants in the conspiracy and robbery charges arising out of the Fletcher incident.
This court, in line with Harris v. New York, 401 U.S. 222, 28 L.Ed.2d 1, 91 S.Ct. 643, has held that a defendant’s statement or confession may be used for impeachment purposes when the defendant takes the stand even though the statement is not admissible in the state’s case in chief because the state failed to have a hearing in camera to determine its voluntariness (State v. Osbey, 213 Kan. 564, 517 P.2d 141) or because Miranda warnings were not given (State v. Boone, 220 Kan. 758, 556 P.2d 864). See also State v. Greene, 214 Kan. 78, 519 P.2d 651, and State v. Andrews, 218 Kan. 156, 542 P.2d 325.
The purpose for the distinction made in permitting such a statement or confession in evidence for impeachment purposes and not in the state’s case in chief rests on the different bases for the exclusions. When a statement or confession is found to be involuntary it is excluded from evidence because it is unreliable and not trustworthy. A coerced confession is not based on knowledge and truth for it originates from coercion and a personal desire of the deféndant to alleviate existing pressures. On the other hand a statement or confession may be excluded from evidence in the state’s case in chief if Miranda warnings were not given or if no hearing was held to determine its voluntary nature. These reasons for exclusion are not based on the fact the statement is unreliable or untrustworthy. The statements are withheld from evidence in the state’s case in chief as a sanction for failure to warn a defendant or for failure to hold the hearing required. When the defendant who made such a statement takes the stand as a witness the facts surrounding the taking of the statement may be brought out and the reliability and trustworthiness of the prior statement may be fully explored including the effect of a failure to warn. The previous sanction imposed is removed in the interest of truth and justice.
However, we have never held that a statement can be used for impeachment purposes when a court has held a hearing and previously determined the statement inadmissible because it was not intelligently and voluntarily made.
In State v. Osbey, supra, p. 574, the court noted there was not the slightest hint the statement was involuntary. In State v. Boone, supra, this court holds:
“A statement made by an accused after receiving his Miranda warnings and after asking to see his attorney, but before an attorney is present, may be used for impeachment purposes where the accused’s testimony at trial is inconsistent with the statement and there is no evidence that the statement given was involuntary or coerced.” (220 Kan. 758, Syl. 14. Emphasis supplied.)
The United States Supreme Court in Oregon v. Hass, 420 U.S. 714, 43 L.Ed.2d 570, 95 S.Ct. 1215, stated:
“As in Harris, it does not follow from Miranda that evidence inadmissible against Hass in the prosecution’s case in chief is barred for all purposes, always provided that ‘the trustworthiness of the evidence satisfies legal standards.’ 401 U.S., at 224. . . (p. 722.)
When a confession or statement by a defendant has been found involuntary it is unreliable and untrustworthy and it does not then satisfy the legal standards necessary for admissible evidence. It must then be excluded whether offered in the state’s case in chief or for impeachment purposes. See 2 Wharton’s Criminal Evidence, § 479, pp. 447-448; and 23 C.J.S., Criminal Law, § 817 (2), p. 162.
In view of the above holding our statement in State v. Osbey, supra, was overly broad when we stated:
“ . . Courts which have considered the issue are divided as to whether an accused who takes the witness stand in his own behalf may be impeached through use of a confession which is inadmissible in the prosecution’s case in chief, either because it was not voluntarily made or because it was not otherwise properly qualified for admission as substantive evidence of guilt (see anno., 89 ALR 2d 478, Impeachment — Inadmissible Confession). . . .” (213 Kan. pp. 573-574. Emphasis supplied.)
Accordingly the underlined portion of the above statement is disapproved. We hold the statement of Roberts in the present case was improperly admitted for impeachment purposes.
The involuntary statement of Roberts tended to inculpate all four defendants. It therefore was inadmissible as against all defendants and the admission of the statement was error as to all four codefendants. (See also 22A C.J.S., Criminal Law, § 769, pp. 1161-1162.) The judgments and convictions of Charles D. Roberts, Robert Crittenden and Robert Taylor are reversed and their cases are remanded. A separate new trial is ordered for Roberts and a new trial is ordered for Crittenden and Taylor.
One additional point is raised on a procedural matter which will, no doubt, arise in subsequent trials and will be considered for the future guidance of the trial court. It concerns the admissibility of certain testimony of Cindy Fanning regarding statements made by the conspirators in her apartment. She testified that Roberts, Crittenden and Taylor were sitting in her apartment, talking about robbing “Tex” and that she gave Roberts the key. She testified Roberts got the gun from Tex’s apartment. She further testified that they said they were going back and Charles and the other two blacks were going into the apartment where Tex was sleeping and if Tex got up “this white guy” was going to hit him over the head. She testified that they planned to get his money and other property, and that she didn’t want to be there when this happened so she and Gary left with Smith.
Appellants argue that Cindy Fanning became a coconspirator when she turned the key over to Roberts and that before her testimony about conversations among coconspirators may be admitted in evidence there must be extrinsic evidence in the record that a conspiracy existed.
Their contention in this regard is based upon the holding in State v. Nirschl, 208 Kan. 111, 490 P.2d 917, where we say:
“Where an out of court declaration concerns a conspiracy to commit a crime and is relevant to its subject matter and made during the existence of the conspiracy, evidence extrinsic to such out of court declaration must be in the record to establish some substantial factual basis of the existence of such conspiracy, before heresay [sic] evidence by a third party witness or witnesses may be admitted as an exception to the rule. (K.S.A. 60-460 [i] [2].)” (Syl. 2. Emphasis supplied.)
In Nirschl, defendant attempted to introduce testimony of three people as to conversations they had with Robert Brunch and other conversations between the defendant and Brunch which they overheard to establish a conspiracy between Brunch and the sheriff. This was a third person situation as pointed out in State v. Champ, 218 Kan. 389, 543 P.2d 893, in which Justice Miller distinguishes a prior case based on the rule defendant urges here:
. . . Goyens is readily distinguishable from the case at hand. The witness in Goyens was a law-enforcement officer; the statements about which he testified were made to the officer by the alleged co-conspirator who was not a witness.” (p. 390-391; see State v. Goyens, 110 Kan. 421, 204 Pac. 704.)
The purpose of the statute is to let in testimony by a third person concerning declarations of a defendant’s fellow conspirator to prove the defendant’s involvement in a crime. However, before such third party statements can be used as evidence against a defendant there must be evidence a conspiracy between the out of court declarant and defendant actually did exist. The section deals with vicarious admissions included in agency relationships. Wharton’s Criminal Evidence in discussing the section states:
“Where it appears that two or more persons have entered into an agreement to commit a crime — and hence are guilty of conspiracy — any act or declaration of a conspirator during such conspiracy, and in furtherance thereof, is admissible, in a prosecution for the target crime, as substantive evidence against any co-conspirator on trial. The theory of admissibility is that each party to an agreement to commit a crime has become an ‘agent’ for the other and has, in effect, entered into a ‘partnership in crime.’ . . .” (3 Wharton’s Criminal Evidence, § 642, pp. 321-327.)
K.S.A. 60-460 in pertinent part provides:
“Evidence of a statement which is made other than by a witness while testifying at the hearing offered to prove the truth of the matter stated is hearsay evidence and inadmissible except:
“(i) Vicarious admissions. As against a party, a statement which would be admissible if made by the declarant at the hearing if (1) the statement concerned a matter within the scope of an agency or employment of the declarant for the party and was made before the termination of such relationship, or (2) the party and the declarant were participating in a plan to commit a crime or a civil wrong and the statement was relevant to the plan or its subject matter and was made while the plan was in existence and before its complete execution or other termination, or (3) one of the issues between the party and the proponent of the evidence of the statement is a legal liability of the declarant, and the statement tends to establish that liability;”
Appellants have misinterpreted the statute and its case law. K.S.A. 60-460 (i) addresses a third party situation. Its requirements apply when the party (defendant) and the declarant (co-conspirator) are participating in a plan to commit a crime and a third person (witness) is later called to testify as to the coconspirator’s statements made outside the presence of the defendant concerning the conspiracy for the purpose of establishing defendant’s participation in the conspiracy and crime. As previously pointed out the theory of admissibility is that each party to the conspiracy becomes an agent for the others. Therefore as an agent his statements to a third person bind not only himself but the others for whom he is acting. Under this theory of admissibility the conspiracy out of which the agency arises must be proven before the third party may testify against a coconspirator as to the declarant’s statements made in the absence of the defendant-coconspirator.
This is not such a case. The statements here were made in the presence of all conspirators. The statements were not made to a third party. A conspiracy is an agreement with another person to commit a crime or to assist in the same. The statements of persons present when the conspiracy is being consummated are admissible as matters accompanying an incident to the transaction or event; as such they are part of the res gestae. Such statements by which the agreement was reached may be established by the testimony of anyone present when the agreement was alleged to have been entered into. The testimony of Cindy Fanning was admissible to prove the conspiracy.
We have examined all other points raised by Roberts, Crittenden and Taylor and they relate to procedural matters which may or may not arise again in subsequent retrials; therefore we decline to decide such abstract questions.
By way of summary to what has previously been decided in the foregoing opinion we hold: (1) The appellant James E. Smith should have been and is hereby acquitted on the charge of conspiracy to commit robbery for lack of evidence; (2) the judgment and convictions of Charles D. Roberts are reversed on appeal and his case is remanded for further separate proceedings; and (3) the judgment and convictions of Robert Crittenden and Robert L. Taylor are reversed on appeal and their cases are remanded for further proceedings. | [
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The opinion of the court was delivered by
Owsley, J.:
This is an appeal from jury verdicts of guilty on five counts of first degree murder (K.S.A. 21-3401).
The victims of these crimes were killed in three separate incidents. The evidence discloses Sheryl Lynn Young, Diane Lynn Lovette and Guy William Young were picked up by defendant on Interstate 70 near Ogallah, Kansas, on December 13, 1974, and were taken to an abandoned farm house in Graham County where the two women were shotgunned to death and Guy, a three-year-old boy, was left to freeze. The bodies were found on January 13, 1975. Carla Baker, a college student, was abducted on the evening of June 30, 1976, as she rode her bicycle near the west edge of Hays, Kansas. Her remains were recovered on September 21, 1976, in a deserted area on the Cedar Bluff Reservoir in Trego County after defendant told police where to look for her body. Sixteen-year-old Paula Fabrizius worked as a park rangerette at Cedar Bluff State Park during the summer months. On August 21, 1976, she was abducted from her duty post. After an extensive search her body was found the next day near Castle Rock, a natural rock formation in Gove County.
Defendant was arrested on August 24, 1976. Because of widespread local publicity surrounding the crimes, trial was moved to Salina, Kansas. The state introduced extensive evidence connecting defendant to the crimes, with the most damning evidence being defendant’s confession to the five crimes.
At trial defendant presented insanity as a defense. His evidence included the testimony of two psychiatrists and several lay witnesses.
Because of the nature of the issues on appeal it is unnecessary to dialogue the evidence. Pertinent facts will be chronicled as necessary to determine the issues on appeal.
Defendant first argues he was entitled to an acquittal by reason of insanity at the conclusion of the state’s evidence. He argues that an inference of insanity was created because of his insanity plea, the opening statements, defendant’s confession, and the state’s evidence. Once this was before the jury the state had a duty to show defendant was sane by introducing psychiatric testimony rather than waiting until rebuttal to introduce that evidence. Because of failure to introduce the psychiatric evidence in the state’s case in chief, defendant believes he was entitled to an acquittal. We find no merit in his argument.
There is a presumption of sanity in a criminal proceeding that may be relied upon by the prosecution to establish a prima facie case. (State v. Coltharp, 199 Kan. 598, 433 P.2d 418 [1967].) The prosecution is never required to introduce evidence of sanity until some evidence is introduced which, if believed by the jury, could raise a reasonable doubt as to a defendant’s sanity at the time the offense was committed. (See, State v. Penry, 189 Kan. 243, 368 P.2d 60 [1962]; Wilson v. United States, 288 F.2d 121 [D.C. Cir. 1960]; State v. Clokey, 83 Idaho 322, 364 P.2d 159 [1961]; People v. Smothers, 2 Ill. App. 3d 513, 276 N.E.2d 427 [1971]; aff’d 55 Ill. 2d 172, 302 N.E.2d 324 [1973].) This evidence may come from either the defendant or the state. (State v. John son, 92 Kan. 441, 446, 140 Pac. 839 [1914]; State v. Crawford, 11 Kan. 32, 45 [1873]; Davis v. State, 90 Neb. 361, 133 N.W. 406 [1911]; Lemke v. State, 56 Okla. Crim. 1, 9, 32 P.2d 331 [1934].) The term “evidence,” however, does not include the insanity plea or opening statements. Neither rebuts the presumption of sanity. (State v. Coltharp, supra at 602; State v. Mendzlewski, 180 Kan. 11, 13, 299 P.2d 598 [1956]; United States v. Currier, 405 F.2d 1039, 1042 [2d Cir. 1969], cert. denied 395 U.S. 914, 23 L.Ed.2d 228, 89 S.Ct. 1761 [1969]. Cf., United States v. Marbley, 410 F.2d 294 [5th Cir. 1969].) Defendant’s self-serving statements that he was “depressed” and suffered memory lapses certainly do not indicate mental disease sufficient to overcome the sanity presumption, particularly in light of the conclusions of three psychiatric witnesses that defendant was faking badly on various psychological tests and might be attempting to appear sicker than he really was. (See, United States v. Currier, supra.)
The presumption of sanity is rebutted when evidence is introduced which could raise a reasonable doubt concerning a person’s sanity. (State v. Johnson, supra at 447.) At that point the question of sanity becomes a question for the jury, assisted by proper instructions. (State v. Johnson, 223 Kan. 237, 240, 573 P.2d 994 [1977]; State v. Coltharp, supra at 603; State v. Mendzlewski, supra at 14.) If the jury has a reasonable doubt as to a defendant’s sanity at the time the offense was committed, it is under a duty to acquit the defendant. (State v. McBride, 170 Kan. 377, 226 P.2d 246 [1951]; State v. Nixon, 32 Kan. 205,4 Pac. 159 [1884]; State v. Crawford, supra at 43.) It is a rare occasion when an insanity question should be taken from a jury by a motion for acquittal. In State v. Gustin, 212 Kan. 475, 510 P.2d 1290 (1973), we said:
“A trial judge in passing upon a motion for judgment of acquittal must determine whether upon the evidence, giving full play to the right of the jury to determine credibility, weigh the evidence, and draw justifiable inferences of fact, a reasonable mind might fairly conclude guilt beyond a reasonable doubt. If he concludes guilt beyond a reasonable doubt is a fairly possible result, he must deny the motion and let the jury decide the matter. If he concludes that upon the evidence there must be such a doubt in a reasonable mind, he must grant the motion.” (Syl. 3.)
In State v. Chase, 206 Kan. 352, 362, 480 P.2d 62 (1971), we quoted from Dusky v. United States, 295 F.2d 743, 756 (8th Cir. 1961) as to the test for acquittal in an insanity defense case:
“ • . [I]n order to remove this case from the jury’s considera tion, . . . “reasonable men must necessarily possess a reasonable doubt as to defendant’s sanity and . . . reasonable men must conclude that the government has failed to sustain its burden of proving beyond a reasonable doubt that the accused had the capacity to commit the crime.” . . .’ ”
Unless evidence of insanity is so great that a trial judge can rule the government could not convince a reasonable man it has sustained its burden of proof as to defendant’s sanity, the issue should go to the jury, as we have recommended in the past. (E.g., State v. Sagebiel, 206 Kan. 482, 480 P.2d 44 [1971]; State v. Chase, supra; State v. Coltharp, supra; State v. Mendzlewski, supra.)
In the case at bar the evidence presented in the state’s case which might raise a reasonable doubt as to defendant’s sanity was not so great as to require acquittal. Whether it rebutted the presumption of insanity is irrelevant as the jury was instructed concerning the presumption and how it could be overcome by evidence demonstrating insanity. Under those circumstances no error occurred by denying the motion for acquittal and submitting the issue to the jury.
Defendant also raises an issue concerning the use of the M’Naghten instruction, urging this court to abandon it for the A.L.I. test. Because of the recent decision in State v. Smith, 223 Kan. 203, 574 P.2d 548 (1977), we find this point without merit.
Defendant’s second issue concerns the trial court’s refusal to allow defense counsel to cross-examine the Trego County sheriff concerning defendant’s fingerprint card in the sheriff’s possession on the day the body of Paula Fabrizius was found. The card was in the sheriff’s possession because defendant was previously arrested for sniping at a car traveling on the interstate. Defense counsel hoped to introduce into evidence the facts surrounding that case. The trial court excluded the evidence on the basis it was irrelevant to the present case.
Admission or exclusion of evidence is within the sound discretion of the trial court, subject to exclusionary rules. (State v. Jakeway, 221 Kan. 142, 147, 558 P.2d 113 [1976]; State v. Wasinger, 220 Kan. 599, 556 P.2d 189 [1976]; State v. Baker, 219 Kan. 854, 549 P.2d 911 [1976].)
Relevant evidence is defined as “evidence having any tendency in reason to prove any material fact.” (K.S.A. 60-401[b]; State v. Rueckert, 221 Kan. 727, 561 P.2d 850 [1977].) The determination of relevancy is a matter of logic and experience, not a matter of law. (State v. Baker, supra at 858.) In State v. Brown, 217 Kan. 595, 599, 538 P.2d 631 (1975), it was said:
“In discussing relevancy, we have frequently said that to be admissible in the trial of a case evidence must be confined to the issues, but it need not bear directly upon them. To render evidence of collateral facts competent, there must be some natural, necessary or logical connection between them and the inference or result which they are designed to establish. (State v. Fagan, 213 Kan. 587, 518 P.2d 552; State v. Gauger, 200 Kan. 563, 438 P.2d 463; and In re Estate of Isom, 193 Kan. 357, 394 P.2d 21.)"
The record discloses the incident took place on January 1,1976. No other facts appear in the record except that defendant allegedly fired a rifle at a passing car on the interstate. Defendant argued the incident was relevant to support the defense psychiatrist’s analysis of defendant’s insane condition. From the state of the record we do not agree. He theorized that defendant killed his four women victims because of an insane hatred for his former wife, believing at the time of the slayings that he was killing his wife and not his actual victims. In order to support this theory the sniping incident must also have been a violent striking out at some female who defendant identified as his ex-wife. No such facts appear in the record.
In the absence of a properly recorded proffer setting forth the nature and detailed substance of the proposed evidence, a party may not assert error due to the erroneous exclusion of such evidence. (K.S.A. 60-405; State v. Watkins, 219 Kan. 81, 547 P.2d 810 [1976]; State v. Nix, 215 Kan. 880, 529 P.2d 147 [1974].) Based on the limited evidence before us, we cannot state the trial court abused its discretion in excluding the evidence. (See, State v. Alderdice, 221 Kan. 684, 688-89, 561 P.2d 845 [1977].)
Finally, defendant claims error in the exclusion of the observations of a polygraph examiner. This state has consistently held that polygraph results or the observations of the examiner are inadmissible absent a stipulation between both parties. (State v. Blosser, 221 Kan. 59, 558 P.2d 105 [1976]; State v. Watkins, supra; State v. Lassley, 218 Kan. 758, 545 P.2d 383 [1976]; State v. Burnett, 218 Kan. 696, 542 P.2d 707 [1976]; State v. Emery, 218 Kan. 423, 543 P.2d 897 [1975]; State v. Lowry, 163 Kan. 622, 185 P.2d 147 [1947].) The basis for the rejection has been the fact a polygraph machine and its operator are not said to be completely accurate because of the human elements involved. (State v. Blosser, supra at 60-61; State v. Lowry, supra at 627.)
Here defendant wanted to show whether there were any changes in his heartbeat, respiration or galvanic response during questioning. The purpose was to show the jury he truly did not remember committing the crimes and thus must be insane. The use of the machine for this purpose is no more admissible than it is for any other purpose previously rejected by this court. The results presented to a jury by a trained polygraph operator have been held to be too speculative; but the test results given to the jury without even that interpretative aid are even more speculative, particularly in light of the fact the polygraph machine escapes all cross-examination. The task of evaluating the readings of the machine is “too subtle a task of evaluation to impose upon an untrained jury.” (State v. Lowry, supra at 627.) We find no error in excluding the polygraph test results.
The judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Holmes, J.;
This is an appeal by defendant-appellant Carl A. Buckner from his conviction by a jury of three counts of aggravated robbery. (K.S.A. 21-3427.) Appellant was sentenced, under the Habitual Criminal Act, to three consecutive terms of thirty years to life.
Due to the number and nature of the points on appeal, a rather detailed statement of the facts is deemed necessary.
On September 17, 1975, the Maverick Club, a private class B club located in Lyon County, Kansas, and two of its patrons, Lewis Baker and Charles Stroud, were robbed by two men. Kathy Gibson and Sheryl York were also present in the club and testified at the trial. The victims and witnesses testified one of the robbers was a tall black man, the other a white man who carried a shotgun, and both wore hats, mesh hose and bandannas over their faces. After the robbery, a small four-cylinder car was seen leaving the Maverick Club.
Later the same day, in a field near the edge of a road five miles southeast of Emporia, the following items were found: three checks taken in the robbery, rolls of coins, two pairs of nylon stockings, two handkerchiefs, a man’s navy blue utility cap with the initials “B.D.C.” toward the rear of the cap, a Levi cap, a brown paper bag, a black silk or nylon-type tee shirt,' a pair of blue jeans and a purple tee shirt.
On September 19, 1975, the appellant, while he was a passenger in a car driven by Bobby D. Coe, was stopped by J. Vernon Humphrey, an agent of the Kansas Bureau of Investigation. The car was ostensibly stopped for a traffic violation although no citation was issued to the driver, Coe. Both men were asked to go to the Emporia Police Department, which they did, and the appellant was interviewed as to his identification. He told officers that his name was Carl Phillips but was unable to produce any identification.
Appellant was interviewed by K.B.I. Agent Humphrey. Humphrey stated he was investigating the armed robbery at the Maverick Club and that appellant and Coe fit the description of the two people who had committed the robbery. Appellant was read the Miranda rights and then questioned as to his whereabouts the night of the robbery. During this questioning a sample of appellant’s hair was obtained. The evidence is conflicting as to whether appellant consented to the taking of hair samples by Agent Humphrey. After questioning by the police, appellant and Coe left the police station. Agent Humphrey delivered the hair samples taken from appellant plus all the items found along the side of the field, except the checks, to the Kansas Bureau of Investigation for analysis by Ken Knight, a forensic chemist.
On September 21,1975, Agent Humphrey received a telephone call from Ness County authorities to the effect that a local parolee, Steve Dimitt, and his wife, Virginia, might have information about the robbery of the Maverick Club. Agent Humphrey and Lyon County Sheriff Daniel Andrews drove to Ness City to interview the Dimitts. During the interview Agent Humphrey was told that the appellant, Bobby D. Coe, and two women had come to the Dimitt’s house in Ness County and that Coe had indicated to the Dimitts that they were implicated in the robbery.
After interviewing the Dimitts, Humphrey called Ken Knight at the K.B.I. laboratory and received an oral report that a great number of similarities existed between the hair found on some of the items recovered by the law enforcement officers and the hair from the head of the appellant.
On September 22, 1975, Humphrey and other law enforcement officers arrested appellant and Bobby D. Coe at the Dimitt residence. After the arrest Coe and Buckner were advised of their rights and transported back to Emporia.
Once back in Emporia appellant was again advised of his rights and questioned by Agent Humphrey about the robbery. During this interview appellant allegedly made certain incriminating statements relative to what had happened to the shotgun used in the robbery and other items connected with the robbery.
Additional facts will be set forth in connection with the various points on appeal.
As his points on appeal, appellant sets forth the following:
1. The court erred in overruling defendant’s motion, pursuant to K.S.A. 22-3215, to suppress as evidence any ¿nd all statements given by defendant and obtained incident to his illegal arrest.
2. The court erred in overruling defendant’s motion, pursuant to K.S.A. 22-3216, to suppress as evidence certain hair samples.
3. The court erred in failing to require the state to prove by clear and positive evidence that consent was given by defendant to the taking of a hair sample.
4. The court erred in permitting Steven Dimitt and Virginia Dimitt to testify as to statements made to them by Bobby D. Coe in that such testimony was hearsay and deprived the defendant of his constitutional right of confrontation; and that said testimony substantially prejudiced the rights of defendant.
5. It was improper to permit the state in its closing argument to state or imply that the presumption of innocence is unfair.
6. The court erred in allowing evidence to be presented indicating the guilt of Bobby D. Coe and that said evidence substantially prejudiced the rights of defendant.
7. The court abused its discretion in imposing sentence.
As to the first point it is the appellant’s position that the court erred in overruling his motion to suppress as evidence any and all statements given by appellant on the grounds that they were obtained as a result of an illegal arrest. Appellant argues that as no warrant had been issued for his arrest, Agent Humphrey did not have probable cause for the arrest on September 22, 1975, at the Dimitt home in Ness County. K.S.A. 22-2401(c)(1) provides that a law enforcement officer may arrest a person without a warrant when he has probable cause to believe that the person has committed a felony.
Probable cause for an arrest is an evasive concept and its existence must be measured by the facts and circumstances of each particular case. (State v. Curtis, 217 Kan. 717, 538 P.2d 1383 [1975].) The United States Supreme Court has stated that “ ‘[t]he substance of all definitions’ of probable cause ‘is a reasonable ground for belief of guilt.’ ” (Brinegar v. United States, 338 U.S. 160, 175, 93 L.Ed. 1879, 69 S.Ct. 1302 [1949].)
In defining the term the Kansas Court has said:
“Probable cause exists where the facts and circumstances within the arresting officers’ knowledge and of which they have reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed.” (State v. Lamb, 209 Kan. 453, 467, 497 P.2d 275 [1972]; State v. Morin, 217 Kan. 646, 538 P.2d 684 [1975].)
“Probable cause does not require the same type of specific evidence of each element of the offense as would be needed to support a conviction.” (State v. Evans, 219 Kan. 515, 521, 548 P.2d 772 [1976].)
“It is not necessary that the evidence giving rise to such probable cause be sufficient to prove guilt beyond a reasonable doubt, nor must it be sufficient to prove that guilt is more probable than not. It is only necessary that evidence leads the officer to believe that guilt is more than mere possibility.” (State v. Barnes, 220 Kan. 25, 28, 551 P.2d 815 [1976] and authorities cited therein.)
Appellant argues that the only facts the arresting officer had, other than the statements made by Steven and Virginia Dimitt, were that appellant lived with Bobby D. Coe, and that appellant and Coe fit the general description of the alleged perpetrators of the robbery. This is not a complete statement of the facts and circumstances giving rise to appellant’s arrest.
Appellee lists ten bits of information which Agent Humphrey had at the time of the arrest which entered into his determination that there was probable cause to arrest the defendant;
“(1) that during the early morning hours of September 17, 1975, a tall black man and white man had committed an armed robbery in Emporia at the Maverick Club; (2) that at the time of the robbery the appellant [a black man] and Bobby D. Coe (a white man) were in Emporia, Kansas; (3) that on September 19, 1975, the appellant and Bobby D. Coe were in a small, 4-cylinder car and a small, 4-cylinder car had been observed leaving the scene of the robbery; (4) that the appellant was using the name of Carl Phillips and could not produce identification as to his name when he was stopped by Agent Humphrey on September 19, 1975; (5) that the appellant and Bobby D. Coe fit the general description of the robbers; (6) that on September 17, 1975, items seized during the robbery and articles of clothing used by the robbers were found five miles from Emporia, that a hat found among the items contained the initials “B.D.C.” in its headband; (7) that a preliminary report from the K.B.I. lab indicated that the hair samples found on the robber’s clothing matched the hair samples taken from the head of the appellant; (8) that two individuals had told Agent Humphrey that the appellant and Bobby D. Coe had related to them that they had committed the robbery; (9) that the appellant and Bobby D. Coe had stated to these two individuals that they were on their way to California; and (10) the Emporia Police Department had a prior contact with the appellant.”
The record appears to substantiate these facts. It is not necessary that all of these facts be within the personal knowledge of the arresting officer.
“Collective information of police officers and law enforcement officers involved in an arrest can form the basis for probable cause, even though the information is not within the knowledge of the arresting officer. . . .” (State v. Clark, 218 Kan. 726, Syl. 2, 544 P.2d 1372 [1976].)
While perhaps none of these facts taken alone would constitute probable cause, taken together they should be sufficient. We hold that the arrest of appellant was based on probable cause as defined by our statutes, that the arrest of appellant was not illegal and that the admission of appellant’s statements, made after adequate warning, was not error.
Appellant’s second point on appeal is that the trial court erred in overruling his motion to suppress as evidence the hair samples taken from appellant at the time he was interviewed at the Emporia police station on September 19, 1975. His argument is that his detention at the police station constituted an illegal arrest and that as a result the hair samples were illegally obtained.
Appellant, in his third point, argues that the taking of the hair samples constituted an illegal search without his consent, although the court apparently ruled that the taking of hair was not a search.
While there is conflicting evidence whether appellant was detained at the police station against his will, there is no affirmative showing that he was ever under arrest. Agent Humphrey and Detective Eslinger testified that he was never placed under arrest and was free to go at any time, while the appellant testified he was told he could not leave. No formal charges were lodged against appellant and he ultimately left the police station.
Appellant further argues that the taking of the hair was illegal as he had not given his voluntary consent to the officers doing so. Assuming arguendo that the taking of the hair did constitute a search not conducted incident to a lawful arrest, the burden is on the state to prove that the defendant voluntarily consented to the search. The trial court found the state had met this burden and that defendant’s voluntary consent had been established by a preponderance of the evidence.
Appellant urges this court to adopt the rule of clear and positive evidence that consent was voluntarily given rather than the rule of a preponderance of the evidence. The preponderance test has been the rule in Kansas in determining the voluntary nature of a confession and it appears no greater test should apply to a determination of whether the consent to a search is voluntary. (See State v. Stephenson, 217 Kan. 169, 535 P.2d 940, and Lego v. Twomey, 404 U.S. 477, 30 L.Ed.2d 618, 92 S.Ct. 619, for the test as to evidence necessary to establish the voluntariness of a confession.)
There is evidence to uphold the trial court’s finding that consent was freely given. The existence and voluntariness of a consent to search and seizure is a question of fact to be decided in light of attendant circumstances by the trial court and will not be overturned on appeal unless clearly erroneous. (State v. Jakeway, 221 Kan. 142, 146, 558 P.2d 113, and authorities cited therein.)
Appellant’s next point is that the court erred in permitting Steven Dimitt and Virginia Dimitt to testify concerning statements made to them by Bobby D. Coe in that such testimony was hearsay and deprived the defendant of his constitutional right of confrontation and substantially prejudiced his rights.
The trial court allowed Steven Dimitt and Virginia Dimitt to testify as to the conversation they had with Bobby D. Coe at their house in Ness County on the 21st of September, 1975. Timely objections were made to the testimony of each of the Dimitts.
The appellant, Bobby D. Coe and two girl friends arrived at the Dimitt’s house about 4:00 a.m. and Coe asked if they could have a place to stay. Dimitt indicated they could.
Mrs. Dimitt testified that Coe said they might be hot or that they were hot; that Bob (Coe) was talking about robbing a Maverick Club; that Bob said something about having a shotgun and that he left the money with somebody in Emporia to hold for him. On cross-examination she testified Coe never referred to Buckner by name and that Buckner said nothing about the Maverick Club.
Mr. Dimitt testified that Coe stated they might be hot; there had been an armed robbery in Emporia and they fit the description; that there was a double barreled shotgun that he had and they went in and tripped over a bannister or something, got the money and left. Again, on cross-examination, it was established that Coe never referred to Buckner by name when relating these events.
It was also established that the appellant was present when the conversation took place but said nothing to refute or deny the statements.
The testimony of the Dimitts was admitted by the trial court as an exception to the hearsay rule under K.S.A. 60-460(fe)(2). This exception to the general rule of hearsay provides:
“(h) Authorized and adoptive admissions. As against a party, a statement . . . (2) of which the party with knowledge of the content thereof has, by words or other conduct, manifested his or her adoption or belief in its truth.”
By this exception to the hearsay rule, an incriminating statement of a third person, which an accused has admitted to be true, is admissible in evidence against the accused as his own statement by adoption. When this statutory section is involved “no issue arises under the confrontation clause where it is the accused’s adoptive statement which is being used against him rather than a statement dependent upon the credit of some third person not in court.” (State v. Greer, 202 Kan. 212, 214-215, 447 P.2d 837.)
In this case, appellant did not expressly adopt the statements of Coe; however, it has long been the rule that statements to the prejudice of an accused, made in his presence and which he tolerates without resentment, explanation or denial, may be admissible as some evidence of his consciousness of guilt. (State v. Cruse, 112 Kan. 486, 494, 212 Pac. 81 [1923]; State v. Shaw, 195 Kan. 677, 681, 408 P.2d 650 [1965].) While the mere fact that a statement is made in the presence of the defendant, to which he voices no objection, does not render it admissible, per se, the trial court specifically found that in the present case the evidence was admissible. In view of the overall evidence in this case, including statements of the appellant after his arrest relating to the shotgun and other items connected with the robbery, we cannot say that there was prejudicial error in the admission of the testimony of the Dimitts.
Appellant next contends that it was improper to permit the state in its closing argument to imply that the presumption of innocence is unfair and that the court erred in allowing evidence to be presented indicating the guilt of Bobby D. Coe.
We have carefully considered both points and find them to be without merit.
Appellant’s final point on appeal is that the court abused its discretion in imposing sentence. Appellant had one prior felony conviction arising from a plea of guilty to burglary on July 31, 1974, in an action in the District Court of Sedgwick County, Kansas. In that action appellant was granted probation after serving approximately five months of his sentence.
In the instant case, the trial court, on motion of the state, invoked the Habitual Criminal Act, K.S.A. 21-4504. Appellant, having been convicted of three counts of aggravated robbery, was sentenced to the maximum of thirty years to life on each count, all to run consecutively, or ninety years to life.
It should be pointed out that this court has had the benefit of a verbatim transcript of the sentencing hearings, the presentence report dated May 26, 1976, and the report and findings of the Kansas State Reception and Diagnostic Center.
The convictions in this action all grew out of one incident at the Maverick Club near Emporia. As a matter of speculation, if there were nine patrons in the club, instead of two, the appellant possibly would have received ten sentences of thirty years to life, to run consecutively, or three hundred years to life.
K.S.A. 21-4601 establishes the basic tenets and objectives of the sentencing procedure:
“Construction. This article shall be liberally construed to the end that persons convicted of crime shall be dealt with in accordance with their individual characteristics, circumstances, needs, and potentialities as revealed by case studies; that dangerous offenders shall be correctively treated in custody for long terms as needed; and that other offenders shall be dealt with by probation, suspended sentence, or fine whenever such disposition appears practicable and not detrimental to the needs of public safety and the welfare of the offender, or shall be committed for at least a minimum term within the limits provided by law.”
The trial court is under an obligation to consider certain factors in imposing sentence on a criminal defendant. K.S.A. 21-4606 enumerates certain factors that shall be considered by the trial court in fixing the minimum term of imprisonment. They are:
“(a) The defendant’s history of prior criminal activity;
(b) The extent of the harm caused by the defendant’s criminal conduct;
(c) Whether the defendant intended that his criminal conduct would cause or threaten serious harm;
(d) The degree of the defendant’s provocation;
(e) Whether there were substantial grounds tending to excuse or justify the defendant’s criminal conduct, though failing to establish a defense;
(f) Whether the victim of the defendant’s criminal conduct induced or facilitated its commission;
(g) Whether the defendant has compensated or will compensate the victim of his criminal conduct for the damage or injury that he sustained.”
Appellant was found guilty on April 2, 1976, and sentencing was set for April 28, 1976, at which time the presentence investigation report had not been received. Counsel for appellant was allowed to present testimony on behalf of his client and the hearing was then continued until the presentence investigation report was received.
Evidence presented on behalf of appellant at the initial hearing on April 28th included the testimony of three members of the Emporia Police Department.
Louis Hansen testified he is in charge of the jail; he is acquainted with defendant Buckner; in his opinion Buckner was a cooperative prisoner who was close to ideal; an aggressive worker; a leader of the other prisoners; and a positive influence on the other prisoners.
William D. Lewis testified he had daily contact with defendant over a period of six months; defendant had been very cooperative, helpful, helped maintain order and discipline in the jail; was close to ideal as a prisoner; and if all prisoners were like defendant, his (Lewis’) job would be much easier.
Robert William Logan, sergeant, testified defendant was very cooperative; gave no difficulty at all; had the respect of the other prisoners; assisted in keeping discipline in the jail; was intelligent; above average in intuitive ability; cooperative; and basically a friendly individual.
The presentence report revealed that defendant is a twenty-five-year-old black male and reviewed the defendant’s prior record, educational background, military experience, employment, social history and other items. The report indicates the defendant grew up in the ghetto of Chicago, completed high school and attended college on a basketball athletic scholarship. Defendant served in the army nearly five years (twenty-two months in Viet Nam) and received a medical discharge under honorable conditions. The recommendation of the presentence investigator was:
“In view of Mr. Buckner’s prior record and considering the seriousness of the present offenses, I see no reason why Mr. Buckner should not be expected to spend some time behind bars. I leave the exact amount of time to the discretion of the Court.” (Emphasis added.)
The overall report was favorable to the appellant.
The report of the Reception and Diagnostic Center included a medical summary which indicated appellant is “considered to be an essentially healthy male.” The psychiatric evaluation was conducted by the clinical director at the Center and a social worker. The report is generally favorable to the defendant.
The conclusions reached as a result of the evaluation process were:
“IV. Recapitulation of the Evaluation Process: We deal here with a 25 year old, single black male with a college education, a musician with artistic endowment with intelligence allowing college studies who has been convicted of a crime of aggravated robbery on three counts and faces a life sentence.
“The psychiatric examination did not reveal any changes compared with the examination done in depth in 1974. This man is not suffering from any kind of mental illness or disorder which calls for any kind of psychiatric treatment. He appears, however, to be overwhelmed by the personal tragedy as he perceives it. For the time being he is mobolizing all of his intellectual capabilities to appeal and win freedom. If this does not work out, we will expect some more severe reaction in the form of a depression. In a safe situation like when discussing his case with some professionals he had the courage and also the capabilities to express his deeper feelings. His feelings are characterized by a heavy tint of feelings of unfairness — feelings that the whole crime was one big misunderstanding based only on the assumption that there was a white and a black together. He is obsessed with what was going on during the court proceedings. At the time of the examination he could give an account of almost every minute what happened to him since the moment of the arrest.
“How long this man has a hope that his appeal might work and he is working on the appeal he will maintain a good equalibrium emotionally and intellectually. If, however, something does not work and he is faced with this life sentence then an understandable severe reaction is expected. While serving in prison or in his concept, while awaiting the appeal he probably will get engaged in more research in legal matters and maybe some college studies. If given the opportunity he will probably like to continue with his music.
“The way of how he was perceived by the clinical staff during his re-examination we do not expect that this man will cause any kind of problems while incarcerated. He requested on his own not to go to the Kansas State Industrial Reformatory but to be transferred to the Kansas State Penitentiary.”
At the sentencing hearing on May 27, 1976, counsel for the defendant did not ask for probation but pleaded with the court not to invoke the enhancement of sentence under K.S.A. 21-4504. Counsel’s able plea to the court is too lengthy to set forth herein but it adequately placed the alternatives, faced by the court in sentencing the defendant, in perspective. Following counsel’s statement, the defendant was sentenced as follows:
“THE COURT: Motion pursuant to K.S.A. 21-3504 (1) (sic) is sustained and granted. Please stand, Mr. Buckner. The Court has given considerable thought to this matter for quite some time, and the conclusion I have arrived at has not been done lightly. Accordingly (sic) to the papers I have before me, on December the 19th, of 1974, you were granted probation under the District Court of Sedgwick County, Kansas; and less than a year later you were charged with three crimes of aggravated robbery. This Court is of the opinion every person has rights.
“MR. HELBERT: Your Honor, would it be possible to speak up because neither one of us can hear you?
“THE COURT: Yes. This Court is of the opinion that everyone has rights. My attention has been directed to the testimony of three persons. I am aware of the testimony of a good number of more people than that. It occurs to me that if rehabilitation had been a realistic thought, it should have occurred the first time. Your chance has run out.
“As I say, I’ve spent some considerable time. I have considered the instructions of the statutes, their intent and their purpose. I think there is no one who isn’t aware of the fact that as a general policy, if it’s a non-violent crime, probation is very seriously considered for a first offender by this Court. It’s most unusual when it’s considered for a second non-violent crime. What we have is a combination of both. It’s unfortunate. It’s a serious loss, and it’s a waste. It is, however, a matter of your choice.
“Upon the finding of the jury rendered April 2nd, of 1976, finding you guilty of a violation of K.S.A. 21-3427, in Count I, I sentence you to a period of not less than thirty years nor more than life in the custody of the Secretary of Corrections. For the same offense in Count II, a period of thirty years to life in the' custody of the Secretary of Corrections. For the same offense alleged in Count III, a period of thirty years to life in the custody of the Secretary of Corrections.
“It is this Court’s opinion, when legislature determined that this was a Class “B”, therefore the second most heinous crime that could be committed, they were in point of fact giving instructions to every conscientious Court to bear in mind just exactly that. The people that choose to use the streets here have rights. It’s the intention of this Court that they shall be protected. These sentences shall run consecutively. You are remanded to the custody of the Sheriff of Lyon County, Kansas, for the purpose of transportation to K.R.D.C. I assume that they have a prior rundown. Unfortunately, after two months waiting, I don’t have it. I don’t know where it’s at.
“I will advise you, Mr. Buckner, that you have a right of appeal; and that upon the completion of your sentence, you will have the right to have your record expunged. The date for computation of your sentence is 10/29/75.
“MR. HELBERT: Your Honor, we would ask that the computation begin from the time of incarceration of 9 — September 19, 1975.
“THE COURT: The date for computation of sentence will be 10/29/75. The statute, Mr. Helbert, states that the Judge shall select it. I did so. Is there anything further?
“MR. HELBERT: Your Honor, would it be possible for you to set an appeal bond at this time?
“THE COURT: I will not set a bond on this less than $75,000.00.”
We have gone to unusual lengths to set forth the record surrounding the sentencing in this case.
We are not unmindful of the longstanding rule in Kansas, as held repeatedly by this court, that a sentence which lies within the statutory limits as set forth by the legislature will not be disturbed on appeal in the absence of special circumstances showing an abuse of discretion. (State v. Steward, 219 Kan. 256, 547 P.2d 773.) We adhere to that rule and do not intend to overrule the numerous previous decisions which have so held.
However, as with all things, there is a limit and under the circumstances in this case, we are of the opinion the action of the trial court was so arbitrary and unreasonable and constituted such an abuse of discretion that the sentence cannot be allowed to stand.
“The discretion lodged within a court is not a boundless, but a judicial, discretion. It is a discretion limited to sound judgment to be exercised, not arbitrarily, but with regard to what is right and equitable under the circumstances and the law.” (State v. Collins, 195 Kan. 695, 700, 408 P.2d 639.)
This court, as well as others throughout the country, has become increasingly concerned with the disparity of sentences imposed by the various trial courts for comparable offenses. (See Note, Authority and Scope of Appellate Review of Criminal Sentences Within the Statutorily Prescribed Maximum, 22 Kan. Law Rev. 606; Blake, Appellate Review of Criminal Sentencing in the Federal Courts, 24 Kan. Law Rev. 279; ABA Standards Relating to Appellate Review of Sentences [Approved Draft, 1968].) This disparity exists not only among various states, but also judicial districts within the state and even among various judges within the same district. One of the recommended standards of the American Bar Association is:
“2.3(c) The sentencing judge should be required in every case to state his reasons for selecting the particular sentence imposed. Normally this should be done for the record . . .”
The problem of the sentencing procedure and appellate review of sentences is thoroughly explored in a well reasoned opinion of the Supreme Court of Pennsylvania recently handed down in Commonwealth v. Riggins, _Pa__, 377 A.2d 140 (Aug. 1977). At page 147 the Court states:
“The benefits of requiring the trial court to state its reasons for the imposition of its sentence are manifold: First, requiring the trial court to articulate its reasons for selecting a sentence will promote more thoughtful consideration of relevant factors and will help rationalize the sentencing process. It will safeguard against arbitrary decisions and prevent consideration of improper and irrelevant factors. It will minimize the risk of reliance upon inaccurate information contained in the presentence report. A statement of reasons may aid correction authorities if the sentence results in a commitment, and may have therapeutic value if the sentencing judge explains his or her reasons to the defendant. Requiring a trial court to provide a reasoned basis for the sentence imposed may enhance the court’s legitimacy as perceived by judges themselves and participants in the criminal justice system. It will aid courts in attaining their institutional objective of dispensing equal and impartial justice and will demonstrate to society that these goals are being met. Reasoned sentencing decisions may encourage the development of sentencing criteria and reduce disparity in sentences — decreasing the number of unusually lenient as well as unusually harsh sentences. Finally, a statement of reasons will be invaluable in aiding appellate courts to ascertain whether the sentence imposed was based upon accurate, sufficient and proper information.”
The legislature has dictated, in K.S.A. 21-4606, certain minimum factors to be considered in imposing sentence. Although the statute may not require it, we feel that when the sentence exceeds the minimum, it is better practice for the trial court to make, as part of the record, a detailed statement of the facts and factors considered by the court in imposing sentence. Such a record would be of great assistance to the appellate courts in determining whether the trial court has abused its discretion. “Absent a statement of reasons, the record will not reveal whether the legislatively mandated factors have been considered.” Commonwealth v. Riggins, supra, 151.
The judgment of conviction is affirmed. However, based upon the facts and circumstances in this particular case, the sentence is vacated and the case remanded with directions that the defendant be resentenced, in compliance with the provisions of K.S.A. 21-4601 and K.S.A. 21-4606. It is further ordered that such re-sentencing shall be by a different judge to be appointed by the departmental justice of the fifth judicial department. | [
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The opinion of the court was delivered by
Fromme, J.:
The present appeal stems from complaints of discrimination filed by John H. Bush against his former employer, the City of Wichita. One complaint was filed with the Wichita Commission on Civil Rights (WCCR) and a second complaint was filed with the Kansas Commission on Civil Rights (KCCR). Both agencies found, on the basis of an investigation by the WCCR, there was no probable cause to credit the complainant’s allegations of discrimination. Complainant Bush then appealed the agencies’ determinations, and filed in the district court a pleading denominated a “Petition and Appeal”.
Essentially, this pleading was an attempted appeal from the “no probable cause” findings of the WCCR and the KCCR. In addition, however, Bush attempted to incorporate a separate claim for damages against the City of Wichita for future loss of pension rights and wages. After the city, WCCR and KCCR filed motions to dismiss the appeal proceedings, the district court entered its order from which the present appeal is taken.
In its order the district court dismissed the city as a party defendant. It refused to make WCCR a party to the proceeding. It remanded the proceedings to the KCCR with directions to act on the original complaint of discrimination filed by Bush. The district court further ordered the KCCR to make an independent probable cause determination and, when the independent determination had been made, the KCCR was then required to notify Bush and give him notice of a right to appeal under K.S.A. 1975 Supp. 44-1001, et seq.
This action by the district court satisfied no one. The parties have appealed, cross-appealed, or appeared as dissatisfied appellees.
John H. Bush, as appellant and cross-appellee, presents and argues five separate points. The City of Wichita and KCCR present a joint brief as appellees. The KCCR presents and argues six points as cross-appellant.
In an effort to bring some degree of order and clarity to the ultimate decision we have reached in this case we will address only those points which appear to be dispositive of the case.
Appellant Bush contends the district court erred in dismissing the City of Wichita from the proceedings in that court. He argues that he was entitled to join a claim against the City of Wichita for the wrongful termination of his employment with his appeal from the “no probable cause” determinations of the civil rights commissions. He cites no authority for such an appeal proceeding.
On filing the “Petition and Appeal” in the district court appellant mailed and filed notices of appeal from both the decision of the KCCR and the decision of the WCCR. Certificates were filed in the district court showing that copies of the notices of appeal were mailed to the city attorney, the executive director and individual members of the WCCR, the executive director and individual members of the KCCR, and the Wichita office supervisor of KCCR.
We find nothing in the record to indicate that summons was issued under K.S.A. 60-301, et seq., as is generally required for the commencement of a separate action.
In Stephens v. Unified School District, 218 Kan. 220, 546 P.2d 197 (1975), this court states:
“On appeal from a decision of the commission on civil rights the district court is to try the matter de novo, with the issues of both law and fact to be determined anew. The issues in such a trial, however, are limited to those fairly embraced within the appealing party’s application for rehearing before the commission.” (Syl. ¶ 7.)
In an appeal under K.S.A. 44-1011 the issues to be tried are limited and the appellant cannot enlarge the issues embraced in such an appeal to include a separate claim for damages against the employer for loss of wages and pension rights. Therefore, any separate claim against the City of Wichita was improperly joined with the attempted appeal under K.S.A. 44-1011.
It should be noted that the City of Wichita established the WCCR by city ordinance under its home rule powers. See Hutchinson Human Relations Comm. v. Midland Credit Management, Inc., 213 Kan. 308, 517 P.2d 158 (1973). In the ordinance the city incorporated all sections of the Kansas act against discrimination, K.S.A. 44-1001, et seq., with certain exceptions not pertinent to this appeal. Therefore, when sections of the state statute are referred to in this opinion these sections apply to procedure before the WCCR as well as the KCCR.
The appellant further argues that, if his claim was not properly cognizable as a separate action, the district court erred in not asserting jurisdiction over the claim under K.S.A. 60-2101(d) as amended. In this argument he changes his position on K.S.A. 44-1011. He states that 44-1011 applies only when a complainant has been afforded a hearing and an order affecting his rights has been entered. He points out that both commissions entered findings of “no probable cause” and therefore conducted no hearing and entered no order. In such case he contends any attempted appeal under K.S.A. 44-1011 is precluded and an appeal under K.S.A. 1977 Supp. 60-2101(d) was proper. We cannot agree.
In Brinson v. School District, 223 Kan. 465, 576 P.2d 602 (1978), it is pointed out:
“The right to an appeal in this state is neither a vested nor constitutional right, but is strictly statutory in nature. It may be limited by the legislature to any class or classes of cases, or in any manner, or it may be withdrawn completely. It lies within the legislative domain to determine from what orders or judgments an appeal may be taken. (In re Waterman, 212 Kan. 826, 830, 512 P.2d 466; State v. Burnett, 222 Kan. 162, 166, 563 P.2d 451.) Courts have no inherent appellate jurisdiction over the official acts of administrative officials or boards except where the legislature has made some statutory provision for judicial review. (In re Chicago, R. I. & P. Rly. Co., 140 Kan. 465, 467, 37 P.2d 7; City of Kansas City v. Jones & Laughlin Steel Corp., 187 Kan. 701, 703, 360 P.2d 29.) . . (p. 467)
Every appeal from a decision of the KCCR is governed and limited by the provisions of K.S.A. 44-1011 and if an appeal from a “no probable cause” finding is not authorized under that section then no appeal is possible. As is the case of all general statutes K.S.A. 60-2101(d) does not apply to appeals where a special statute, such as K.S.A. 44-1011, has been provided by the legislature. (Brinson v. School District, supra.)
The next point we will address concerns that part of the order of the district court remanding the case to the KCCR for an independent finding on probable cause to credit the allegations of the complaint.
When the separate complaints were filed with the WCCR and with the KCCR, WCCR proceeded to investigate the allegations of discrimination. The two complaints contained identical allegations of fact upon which discrimination was claimed. WCCR served notice of the complaint and of the impending investigation on the City of Wichita. An investigation was made by an investigating commissioner of WCCR and after reviewing the facts disclosed by the investigation the commissioner found no probable cause to credit the allegations of discrimination. Thereafter both the complainant and the city received written notice of this “no probable cause” determination. The complaint was dismissed.
The WCCR forwarded all information gathered in the investigation of the complaint to the KCCR. The investigating commissioner for KCCR found the investigation by the WCCR was sufficient and determined that no probable cause existed to credit the allegations in the complaint. The KCCR mailed notice to the city and to the complainant of its determination and advised that KCCR was closing its file.
The requirement by the district court that KCCR make a separate investigation and an independent determination raises questions affecting cooperation between the KCCR and local commissions. As previously stated the WCCR was created by ordinance of the City of Wichita which ordinance incorporated by reference the state statutes, K.S.A. 1974 Supp. 44-1001, et seq. In the city ordinance it provided all references to the State of Kansas in the Kansas Act Against Discrimination “shall be construed as referring to the city of Wichita”, so the procedures outlined in the statutes apply to both the WCCR and the KCCR.
Among the powers and duties of the commission set forth in K.S.A. 1977 Supp. 44-1004(3), appears the following:
“To adopt, promulgate, amend and rescind suitable rules and regulations to carry out the provisions of this act, and the policies and practices of the commission in connection therewith.”
Under authority of the statute KCCR has adopted K.A.R. 1975 Supp. 21-40-4, which is as follows:
“The commission may cooperate with and utilize the services of local human relations commissions in fulfilling its responsibilities under the Kansas act against discrimination. The commission may enter into written agreements with local human relations commissions for such purposes. (Authorized by K.S.A. 1974 Supp. 44-1004; effective, E-74-14, Dec. 28, 1973; effective May 1, 1975.)”
The civil rights ordinance of the City of Wichita provides:
“5.20.060 Same — Agreements with agencies. The commission shall be authorized to enter into contracts or agreements or memorandums of agreement with the Kansas Commission on Civil Rights and with the Federal Equal Employment Opportunity Commission in order to carry out any and all assignments made through these agencies to the Wichita commission on civil rights. (Ord. No. 33-012 § 2 (part).)”
Pursuant to the above authority the two commissions had previously entered into an agreement for cooperation in an attempt to prevent duplication of processing effort, loss of time, and additional expense. They stipulated:
. . [I]t is agreed by the parties hereto that all information, materials and evidence resulting from the investigation and processing of any complaint by one party hereto shall be made available to the other, upon request, for use in processing similar complaints against the same respondent.”
There is no provision in the agreement that either commission adopt any findings or determinations of the other and each makes its own determination as to what action may be indicated based on the facts uncovered by the investigation. This court has previously held that civil rights ordinances, such as that adopted by the City of Wichita, are a proper exercise of the police power of the city as tending to promote the health, safety, convenience, and general welfare of its citizens. (Hutchinson Human Relations Comm. v. Midland Credit Management, Inc., supra.)
We see no reason why cooperation between the state and local commissions should not be encouraged. There appears no logical reason to require the KCCR to make its own independent investigation of the facts surrounding a complaint of discrimination in Wichita when the WCCR has fully developed the facts and made them available to the KCCR. This in no way limits the KCCR if it should determine further investigation and action are necessary. However, after reviewing the facts uncovered by the WCCR investigation and deciding proper standards of investigation had been met, the only thing necessary for the KCCR to do was to evaluate these facts and determine whether there was probable cause to proceed further on the alleged discriminatory practice. In the present case they agreed there was no probable cause and terminated the file. This action appears proper.
The district court erred in remanding the proceedings to the KCCR for independent investigation and determination of probable cause. Their previous determination was proper when based on the facts developed by the WCCR and made available to them. The order of the district court holding otherwise is reversed.
We turn now to what appears to be the primary question determinative of this appeal and one which this court has not previously addressed. Does a complainant who files a complaint of discrimination have a right to appeal from a “no probable cause” determination by the investigating commissioner?
At the outset it should be noted Kansas has no general administrative procedure act similar to the federal act (5 U.S.C.A. § 551, et seq. and § 701, et seq.). Reviewability and scope of review of the actions of administrative agencies in Kansas depend upon the particular statutory provisions authorizing the particular judicial review. Courts have no inherent appellate jurisdiction over the official acts of administrative officials or boards. (City of Kansas City v. Jones & Laughlin Steel Corp., 187 Kan. 701, 703, 360 P.2d 29 [1961]; Brinson v. School District, supra.) In the absence of a statutory provision for appellate review of an administrative decision no appeal is available but relief from illegal, arbitrary and unreasonable acts of public officials can be obtained by using such equitable remedies as quo warranto, mandamus, or injunction. (State, ex rel., v. Unified School District, 218 Kan. 47, 50, 542 P.2d 664 [1975]; Brinson v. School District, supra.)
Reviewability of a “no probable cause” finding in the present case must depend upon the intent of the legislature as expressed in the Kansas Act Against Discrimination and as limited by the separation of powers doctrine inherent in the constitution. See Rydd v. State Board of Health, 202 Kan. 721, Syl. ¶ 4, 451 P.2d 239 (1969).
The provisions of the act regarding possible review of a “no probable cause” determination are not explicit. K.S.A. 1977 Supp. 44-1005, which was in effect when this matter arose, outlines the procedure for filing a verified complaint in writing. The commission then serves a copy on each of the parties alleged to have violated the act and designates one of the commissioners to make an investigation of the alleged act of discrimination. The act then provides:
“. . . If the commissioner shall determine after such investigation that no probable cause exists for crediting the allegations of the complaint, such commissioner shall, within ten (10) business days from such determination, cause to be issued and served upon the complainant and respondent written notice of such determination.” (Emphasis supplied.)
Nothing is said in the act about further procedure in case a “no probable cause” determination is entered.
The act then sets forth what is to be done if the commissioner shall determine probable cause exists for crediting the allegations for the complaint. In such case the commission attempts to eliminate the unlawful discriminatory practice by conference and conciliation. In case of failure a hearing is arranged before at least four (4) commissioners. At the conclusion of this hearing an order is issued. K.S.A. 44-1010 provides for a rehearing in case any party is dissatisfied with the order.
Appeals are covered in K.S.A. 44-1011, and a judicial review is permitted by any person aggrieved by an order. In such case the evidence presented to the commission, together with its findings and the order issued thereon, is certified to the district court. The statute then provides:
“The court shall hear the appeal by trial de novo . . . and the court may, in its discretion, permit any party or the commission to submit additional evidence on any issue. . . . After hearing, the court may affirm the adjudication. If the adjudicationby the commission is not affirmed, the court may set aside or modify it, in whole or in part, or may remand the proceedings to the commission for further disposition in accordance with the order of the court.” (Emphasis supplied.)
Throughout this statute the judicial review provided refers to orders of the commission and to an adjudication by the commission. These review provisions do not mention a probable cause determination. In Atchison, T. & S. F. Rly. Co. v. Commission on Civil Rights, 215 Kan. 911, 529 P.2d 666 (1974), adhered to in 217 Kan. 15, 535 P.2d 917 (1975), this court held that the KCCR is not acting in a quasi-judicial capacity until its investigation ends and a hearing is set. While it is true, as the appellant asserts in his brief, that the KCCR may later exercise quasi-judicial functions, a determination of probable cause is an investigatory function which must be satisfied before the commission may begin its adjudicatory functions.
The Atchison opinion sets forth the basic difference between investigative and adjudicatory KCCR functions:
“It is important to distinguish between an ‘investigation’ and a ‘hearing’ or ‘adjudication’. The term ‘hearing’ is appropriate to quasi-judicial proceedings while ‘investigation’ is appropriately used with regard to nonjudicial functions of an administrative agency and the seeking of information for future use rather than proceedings in which action is taken against someone. (State Ex Rel. Railroad & Warehouse Commission v. Mees, 235 Minn. 42, 49 N.W.2d 386, 27 A.L.R.2d 1197; Bowles v. Baer [7th Cir. 111.], 142 F.2d 787.) An ‘investigation’ is nonadversary and contemplates a procedure much less formal and more flexible than applies even to an administrative hearing. In Railway Clerks v. Employees Assn., 380 U.S. 650, 14 L.Ed.2d 133, 85 S.Ct. 1192, the Supreme Court of the United States stated that an administrative investigation is essentially informal, not adversary, and is not required to take any particular form. In Hannah v. Larche, 363 U.S. 420, 4 L.Ed.2d 1307, 80 S.Ct. 1502, the Supreme Court points out that where an administrative agency makes a determination of a quasi-judicial nature, the parties to the adjudication must be accorded the traditional safeguards of a trial; but when such an agency is conducting nonadjudicative, fact-finding investigations, rights such as apprisal, confrontation, and cross-examination generally do not obtain.” (215 Kan. p. 918.)
In State, ex rel., v. American Oil Co., 202 Kan. 185, 446 P.2d 754 (1968), the difference between an investigation and a quasi-judicial proceeding was further explored:
“The inquisition procedure here involved is an historically well-known legislative device enabling the state’s chief law enforcement officer to gather information necessary for effective enforcement of our antitrust laws. The proceeding is not adversary but is ex parte; it is investigative and not adjudicatory. Of course, facts uncovered through it may lead to an adjudicatory hearing, civil or criminal, the same as information disclosed by any other method of investigation. That which the corporate appellants are really asserting is the right to be present during the attorney general’s investigation. The right to an adjudicatory hearing includes the right to counsel. But we know of no constitutional right in anyone to be present at an investigation simply because his conduct is the subject of the inquiry and he may in the future be prosecuted as a result of information developed during the investigation. . . .” (202 Kan. p. 188.)
An affirmative probable cause determination is a prerequisite to further agency involvement and investigation. As noted in the Atchison and American Oil cases, supra, an investigation is traditionally a function of state law enforcement officers, not the courts, and is concerned with gathering information for future use. Determination to proceed is an executive function. Such is the case with the investigating commissioner’s determination relative to probable cause. The investigating commissioner, like a prosecutor or state law enforcement officer, is concerned with gathering information to be used in the future in an adjudicatory, adversary proceeding against the named employer, if future procedures are warranted.
Under the analysis of the Atchison and American Oil cases, supra, the determination relative to cause made by the investigating commissioner of the KCCR is an exercise of the commission’s investigative functions. Obviously from the nature of K.S.A. 1977 Supp. 44-1005, the legislature intended the commission to investigate and determine whether probable cause existed to credit a complainant’s allegations before the KCCR exercised its adjudicatory powers. Before the commission may progress beyond the investigation stage upon a complaint from an individual, the investigating commissioner must determine that probable cause exists to credit complaint allegations.
The investigation and determination by an investigating commissioner on a complaint of discrimination filed under a state act or local ordinance against unlawful discriminatory practices are investigatory functions of the commissioner, and K.S.A. 44-1011 provides no right of judicial review of a “no probable cause” determination by an investigating commissioner.
In the present case the attempted appeal to the district court was not authorized. Accordingly the district court did not err in refusing to make WCCR a party to the attempted appeal and in dismissing the appeal as to the city. The district court did err in refusing to dismiss the appeal as to all parties, including KCCR. The district court erred in remanding the proceedings for a probable cause determination, and in holding the plaintiff Bush had a right to appeal the probable cause determination when entered.
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The opinion of the court was delivered by
Schroeder, C. J.:
This is an appeal in a criminal action from a jury verdict which found Stephen F. Smallwood (defendant-appellant) guilty of three counts of aggravated robbery (K.S.A. 21-3427); one count of unlawful possession of a firearm (K.S.A. 21-4204); and two counts of conspiracy (K.S.A. 21-3302).
Several specifications of error are asserted by the appellant. First he claims the trial court erred in refusing to grant his request for production of documents pursuant to K.S.A. 22-3213. Second he contends the trial court erred in allowing the admission of exhibits by the state on the ground they were irrelevant. Third he claims the trial court erred in limiting his cross-examination of the state’s chief witness and in overruling his motion to suppress the testimony of this witness.
The essential facts are largely undisputed. On February 12, 1975, five armed men in ski masks robbed the Grove IGA grocery store in Wichita, Kansas, of approximately $5,200. The robbers also took a snub-nosed .38 pistol from the store manager, Larry L. Wolf, and $48 in cash and credit cards from a customer in the store, M. G. McIntosh. Larry Taylor, an employee of the store, was shot during the robbery.
Almost one month later on March 9, 1975, the Wichita Police Department stopped a pickup truck at 1:00 a.m. in the morning. Two pistols and a shotgun were immediately thrown from the truck and a man, later identified as the appellant, jumped from the truck and fled. Ray Meeks, Donald McQueen and Elmer Hardyway, Jr., were arrested and taken into custody. One of the pistols thrown from the truck was identified as the same gun taken in the Grove IGA robbery.
Several days after he was arrested Ray Meeks implicated the appellant together with Elmer Hardyway, Jr., Charles Hardyway and Donald McQueen in the commission of several robberies in the Wichita area. He was granted immunity from prosecution upon the condition he testify at the trials of these defendants. As a result of the information provided by Meeks the appellant was charged with the Grove IGA grocery store robbery and with conspiracy to rob the Pawnee Plaza Mall in Wichita.
Stated briefly, Meeks testified he and the appellant met with a man named Melvin V. Moody on March 4, 1975, to discuss the robbery of a coin collection to be shown at the Pawnee Plaza Mall. Moody promised to provide a key to the building, while the appellant agreed to furnish the men he usually worked with.
Shortly before noon the next day Meeks saw the appellant and Elmer Hardyway, Jr. He stated the appellant told him he was getting ready “to meet the man, find everything out.” Thereafter on March 8, 1975, the appellant accompanied by Meeks, Donald McQueen and Elmer Hardyway, Jr., went to the Pawnee Plaza Mall to familiarize themselves with the premises and finalize arrangements for the robbery of the coin collection to be shown on the mall.
Meeks further stated he drove with Donald McQueen and Elmer Hardyway, Jr., to the appellant’s home early in the morning of March 9, 1975. The trio picked up the appellant together with the guns to be used in the robbery and were proceeding to the Pawnee Plaza Mall when they were apprehended by the police.
Meeks also related the details surrounding the Grove IGA grocery store as did numerous other witnesses introduced by the state.
The appellant made various unsuccessful motions concerning the testimony of Ray Meeks. Apparently after he was released from custody Meeks was interviewed by the assistant district attorney, Stephen M. Joseph, on March 20 and 21, 1975. Prior to the trial the appellant moved for the production of notes made by Mr. Joseph during the interviews. The trial court denied the motion. The appellant renewed the motion unsuccessfully at the trial. The appellant also moved to suppress Meeks’ testimony claiming Meeks was incapable of understanding his duty as a witness to tell the truth pursuant to K.S.A. 60-417(b) and he also claimed Meeks’ Fifth Amendment constitutional rights had been violated by the police after Meeks’ arrest. These motions were denied.
Finally, the trial court limited the appellant’s cross-examination of Ray Meeks concerning his ability to tell the truth on previous occasions.
The appellant was convicted as charged and sentenced to imprisonment as a habitual criminal for not less than 45 years nor more than his life. His motion for a new trial was denied and appeal has been duly perfected.
The appellant first contends the trial court erred in denying him the opportunity to examine certain documents which he claims were a “statement” of the state’s chief witness, Ray Meeks.
Prior to the trial, the appellant moved for discovery of a number of items including the following:
“5. Specifically, the written statement of Ray Meeks given to Assistant District Attorney Steve Joseph which Assistant District Attorney Joseph has characterized as ‘his notes’ although Ray Meeks has called the document in question ‘his written statement’.”
The trial court denied the appellant’s motion to produce those notes as reflected in the journal entry:
“5. Assistant District Attorney Stephen M. Joseph informed the court that he interviewed Ray E. Meeks on March 20 and 21, 1975; that he made notes during this interview; and that Mr. Meeks has never read, signed, or otherwise approved those notes. Based on this statement, the court declined to order production of Mr. Joseph’s notes but ordered that a copy of those notes be filed in camera for purposes of appeal.”
At the trial the appellant again moved unsuccessfully for the production of Mr. Joseph’s notes. He claimed Mr. Meeks had characterized the notes as his “written statement” and stated he believed he signed them.
K.S.A. 22-3213 provides in part:
“(2) After a witness called by the state has testified on direct examination, the court shall, on motion of the defendant, order the prosecution to produce any statement (as hereinafter defined) of the witness in the possession of the prosecution which relates to the subject matter as to which the witness has testified. If the entire contents of any such statement relate to the subject matter of the testimony of the witness, the court shall order it to be delivered directly to the defendant for his examination and use.
“(4) The term ‘statement,’ as used in subsections (2) and (3) of this section in relation to any witness called by the prosecution means — •
“(a) a written statement made by said witness and signed or otherwise adopted or approved by him; or
“(b) a stenographic, mechanical, electrical, or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement made by said witness and recorded contemporaneously with the making of such oral statement.”
The definition of “statement” in K.S.A. 22-3213(4) is patterned after the definition of “statement” in the Jencks Act, 18 U.S.C., § 3500 (1970), as it was originally passed by Congress. That Act was subsequently amended to add grand jury testimony to the definition. This court has previously relied upon the construction of the Jencks Act applied by the federal courts when questions have arisen under K.S.A. 22-3213. (See State v. Stafford, 213 Kan. 152, 158, 515 P.2d 769.) We do not depart from this practice here. Both parties agree Goldberg v. United States, 425 U.S. 94, 47 L.Ed.2d 603, 96 S.Ct. 1338, controls the disposition of this claim.
In Goldberg, the accused sought production at trial of a government lawyer’s notes made during interviews with a government witness. The witness testified the lawyer’s notes were probably read back to him from time to time during the interviews and he confirmed their accuracy or made corrections. The Supreme Court reversed the trial court’s ruling the notes were “work product” stating:
“We hold that a writing prepared by a Government lawyer relating to the subject matter of the testimony of a Government witness that has been ‘signed or otherwise adopted or approved’ by the Government witness is producible under the Jencks Act, and is not rendered nonproducible because a Government lawyer interviews the witness and writes the ‘statement’. . . .” (p. 98.)
The court then remanded the case to the trial court to determine whether the lawyer’s notes constituted a “statement” within the meaning of the Jencks Act. The court suggested several issues to be resolved by the trial court including the determination whether the prosecutor’s notes were actually read back to the witness and whether he adopted or approved them. The Supreme Court notes:
“19. Every witness interview will, of course, involve conversation between the . lawyer and the witness, and the lawyer will necessarily inquire of the witness to be certain that he has correctly understood what the witness has said. Such discussions of the general substance of what the witness has said do not constitute adoption or approval of the lawyer’s notes within § 3500 (e)(1), which is satisfied only when the witness has ‘signed or otherwise adopted or approved’ what the lawyer has written. This requirement clearly is not met when the lawyer does not read back, or the witness does not read, what the lawyer has written.” (pp. 110-111.)
Here the state contends Mr. Joseph’s notes were not a “statement” within the meaning of K.S.A. 22-3213(4)(a), because Mr. Meeks did not sign or otherwise adopt or approve what Mr. Joseph wrote during the interview. Further, the state argues the notes were not a substantially verbatim transcription of Mr. Meeks’ oral statements. We agree.
This court has reviewed Mr. Joseph’s notes taken in longhand in their entirety. Clearly they were not a substantially verbatim transcription of the conversation. We hold because Mr. Joseph did not read back his notes to Mr. Meeks and Mr. Meeks did not read what Mr. Joseph wrote, Mr. Meeks did not approve or adopt those notes and they were not a “statement” within the meaning of K.S.A. 22-3213.
The appellant next claims his rights were prejudiced when the state was allowed to introduce both testimony and exhibits which pertained only to other individuals also charged with the same crimes with which he was charged.
The appellant lists twelve different exhibits which were introduced together with testimony of officers and an expert to prove Elmer Hardyway, Jr., Charles Hardyway and Donald McQueen were involved in the Grove IGA robbery. None of the evidence or testimony related to the appellant. He argues this evidence was introduced by the state in order to show Ray Meeks was telling the truth about Elmer Hardyway, Jr., Charles Hardyway and Donald McQueen and therefore was also telling the truth about his involvement in the robbery. The general rule is the admissibility of physical evidence is within the sound discretion of the trial court and is to be determined on the basis of its relevance in connection with the accused and the crime charged. (State v. Hernandez, 222 Kan. 175, 563 P.2d 474; State v. Jakeway, 221 Kan. 142, 558 P.2d 113; and State v. Boone, 220 Kan. 771, 556 P.2d 880.)
In State v. Donahue, 218 Kan. 351, 543 P.2d 962, our court allowed the introduction, over objection, of physical objects belonging to codefendants stating:
“It cannot be doubted that the victims’ descriptions of the shoes, hat and gun, and their in-court identification of these exhibits strongly corroborated their identification of the defendant. The exhibits were relevant and of probative value. . . . The shoes corroborated the victims’ identification of Garrett [the codefendant] as one of the assailants and in turn added credence to their identification of the defendant as another assailant. . . (p. 356.)
(See also State v. Wasinger, 220 Kan. 599, 556 P.2d 189.)
Here the use of such evidence was entirely proper. The exhibits and testimony corroborated Mr. Meeks’ testimony that the Hardyway brothers and McQueen were involved in the charged offenses. This, in turn, added credence to Mr. Meeks’ testimony the appellant was a member of the robbery team. The exhibits were relevant and had some probative value.
The appellant also complains the trial court erred in limiting his cross-examination of Ray Meeks.
During his cross-examination of Mr. Meeks the appellant attempted to examine the witness concerning his testimony under oath at two preliminary hearings when Mr. Meeks allegedly admitted he had not told the truth. One of these occasions dealt with conversing about the case to the district attorney during a recess after being admonished to refrain from discussion. While Mr. Meeks initially denied such behavior, he later admitted in his testimony he had discussed the case during the break. The other instance involved testimony by Mr. Meeks in which he stated he had been telephoned rather than subpoenaed to appear. The trial court refused to allow cross-examination stating these matters were of a collateral nature and not proper cross-examination for impeachment purposes.
The appellant now contends it was error for the trial court to limit this cross-examination because it affected the witness’s credibility. This claim lacks merit. The testimony was inadmissible as specific instances of conduct relevant only as tending to prove a trait of character.
K.S.A. 60-420 provides:
“Subject to K.S.A. 60-421 and 60-422, for the purpose of impairing or supporting the credibility of a witness, any party including the party calling the witness may examine the witness and introduce extrinsic evidence concerning any conduct by him or her and any other matter relevant upon the issues of credibility.”
Limitations on the admissibility of evidence affecting the credibility of a witness under K.S.A. 60-422 include in part:
“As affecting the credibility of a witness . . . (c) evidence of traits of his or her character other than honesty or veracity or their opposites, shall be inadmissible; (d) evidence of specific instances of his or her conduct relevant only as tending to prove a trait of his or her character, shall be inadmissible.”
In substance K.S.A. 60-422(c) disallows proof of general bad or good character and limits character evidence impeaching or supporting a witness’s credibility to the traits of honesty or veracity or their opposites. K.S.A. 60-422(d), on the other hand, limits the manner of proving such character traits as affecting the credibility of a witness by disallowing evidence of specific instances of the witness’s conduct. This limits K.S.A. 60-446, which allows proof of character by opinion testimony and evidence of reputation.
Thus, a witness’s credibility may be attacked by showing the witness has character traits for dishonesty or lack of veracity, but those traits may only be proven by opinion testimony or evidence of reputation. Those traits may not be proven by specific instances of the witness’s past conduct. (See State v. Hall, 220 Kan. 712, 716, 556 P.2d 413; State v. Humphrey, 217 Kan. 352, 364, 537 P.2d 155; and State v. Taylor, 198 Kan. 290, 424 P.2d 612.) Since the two episodes concerning Mr: Meeks’ prior testimony were nothing more than prior specific instances of his conduct, the trial court properly prevented the appellant from inquiring about them on cross-examination by applying the exclusionary rule provided in K.S.A. 60-422(d).
Finally, the appellant claims the trial court erred in overruling his motion to suppress the testimony of Ray Meeks. Specifically he contends Mr. Meeks should have been disqualified as a witness because he was incapable of understanding his duty to tell the truth. Further he claims Ray Meeks’ constitutional rights were violated when the statements were taken.
Under K.S.A. 60-407 every person is qualified to be a witness. Our court discussed this statute in State v. Poulos, 196 Kan. 253, 411 P.2d 694, cert. denied 385 U.S. 827, 17 L.Ed.2d 64, 87 S.Ct. 63, where we said:
. . Under this section, a witness is presumed to be competent to testify. His incompetency, therefore, must be challenged and the burden of establishing incompetency rests on the challenger. . . .” (p. 263.)
Conversely, K.S.A. 60-417(b) disqualifies any person who is incapable of understanding his duty as a witness to tell the truth.
The appellant argues because Mr. Meeks lied under oath on several occasions prior to the trial, he was incapable of understanding his duty to tell the truth. This argument overlooks the purpose of K.S.A. 60-417(b). That provision concerns whether a person is mentally and intellectually able to recognize the moral and legal duty of a witness to tell the truth. If Mr. Meeks previously lied as a witness, such conduct demonstrates a failure to comply with his duty to tell the truth rather than a failure to understand or recognize it. Moreover, the transcript reveals Mr. Meeks was questioned concerning his concept of the truth and his duty as a witness to tell the truth. He clearly understood his duty as a witness.
The second ground advanced by the appellant in support of his motion to suppress Mr. Meeks’ testimony is that Meeks’ Fifth Amendment privilege against self-incrimination was violated. He cites Bradford v. Johnson, 354 F. Supp. 1331 (E.D. Mich. 1972) and United States v. Payner, 434 F. Supp. 113 (N.D. Ohio 1977) as precedent. Neither of these cases is controlling under the facts presented here.
In Bradford, the court recognized a petitioner for habeas corpus relief had no standing to raise the right of the prosecution witness to be free from self-incrimination; however, it found the due process clause offers protection to defendants incriminated by a witness who was grossly tortured to gain the incriminating statements. The transcript and arguments in the case at bar reveal Mr. Meeks was never physically or mentally tortured, but voluntarily gave his statements after he was granted immunity.
In Payner, the court extended the due process exclusionary rule to a taxpayer who was charged with knowingly and wilfully falsifying his return. Certain documents had been seized from the briefcase of a vice-president of a bank in which the taxpayer had an account in order for the government to press charges. The court allowed the defendant to object to the unlawful search and seizure to deter the government from engaging in purposeful, bad faith and outrageous constitutional violations.
We find the reasoning in United States v. Le Pera, 443 F.2d 810 (9th Cir.), cert. denied 404 U.S. 958, 92 S.Ct. 326, 30 L.Ed.2d 275 (1971), more convincing. There the co-conspirator witnesses were granted immunity, and the court stated in answer to the appellant’s challenge against the admission of his co-conspirators’ testimony the following:
“The right against self-incrimination, however, is personal to the witness. Bowman v. United States, 350 F.2d 913, 915 (9th Cir. 1965). And only the witness may assert it or waive it. The appellant has no standing to assert the witnesses’ privilege. United States ex rel. Berberian v. Cliff, 300 F. Supp. 8 (E.D. Pa. 1969). See Alderman v. United States, 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176 (1967). Furthermore, since the witnesses in question were all granted immunity, there is no possible violation of their privilege, and, therefore, Le Pera cannot complain, whether he has ‘standing’ or not.” (p. 812.)
Our decisions of State, ex. rel., v. Koscot Interplanetary, Inc., 212 Kan. 668, 512 P.2d 416, and State v. Addington, 158 Kan. 276, 280, 147 P.2d 367, are in accord.
Thus, Mr. Meeks’ Fifth Amendment privilege was personal to him and the appellant lacked standing to assert it. Furthermore Mr. Meeks was granted immunity and was not prosecuted; therefore, he was never compelled to incriminate himself and his Fifth Amendment privilege was not violated.
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The opinion of the court was delivered by
Schroeder, C.J.:
This is an appeal by the defendant in a criminal action from a jury verdict which found Larry D. Bailey (defendant-appellant) guilty of four counts of aggravated battery (K.S.A. 21-3414), one count of aggravated battery against a law enforcement officer (K.S.A. 21-3415), one count of aggravated assault on a law enforcement officer (K.S.A. 21-3411), three counts of criminal damage to property of a value less than $50 (K.S.A. 21-3720), one count of theft of property of a value less than $50 (K.S.A. 21-3701), and one count of failure to stop and render assistance to injured persons (K.S.A. 8-1602).
The appellant challenges the instructions given by the trial court and contends he was denied his constitutional right to confront witnesses against him.
At approximately 10:00 p.m. on December 19, 1975, the appellant drove into the Apeo Service Station located on Highway 24 in Rossville, Kansas. At the appellant’s request the attendant on duty, James Andres, began filling the car with gasoline. As Mr. Andres was just finishing, the appellant put his car in gear and drove off without paying for the gasoline and with the nozzle still in the car. As a result the pump at the station was damaged.
Mr. Andres obtained a partial license plate number from the car. He reported this information to the local Rossville police, and he was able to describe the car as a white 1964 Chevrolet. The police, in turn, relayed the information to the Shawnee County Sheriff’s Office.
Officers Robert N. Miller and Donald J. Hock of the sheriff’s department responded to the call to search for the suspect vehicle. They located the áppellant’s car proceeding rapidly in an easterly direction along Interstate 70 just east of the West Union Road exit. A high-speed chase began when the officers activated the red light and siren on the patrol car.
Sergeant Miller testified that in the midst of the chase the appellant’s car struck another vehicle which was proceeding east on Interstate 70. The passengers were later identified as Donald Staley, Myrna Staley, Devon Staley and David Everson. The appellant made no attempt to stop. Instead, he continued down the highway at an accelerated speed. Sergeant Miller radioed the Shawnee County Sheriff’s Office for assistance to aid the passengers in the vehicle.
Officer Hock also testified concerning the accident. He stated the appellant’s car was attempting to pass between two other cars running side-by-side on the highway when the accident occurred. He said the vehicle which was struck went off the road, hit a guard rail and then bounced back on the road. At this point a woman fell partially out of the car door and hit her head on the pavement.
The officers who responded to Sergeant Miller’s call for aid testified the Staley car was extensively damaged and Myrna Staley was seriously injured.
Shortly after the appellant’s car struck the Staley car Officers Miller and Hock were joined by Troopers Timothy P. Lockett and Richard L. Devore of the Kansas Highway Patrol. On three separate occasions Trooper Devore, who was in uniform and driving a marked highway patrol car, attempted to pass the appellant’s car on the right side. Each time the appellant swerved his car toward the patrol car, which forced Trooper Devore to slow down on the shoulder of the road. Finally, on the fourth try Trooper Devore was successful in getting in front of the appellant’s car,, and he forced the appellant to slow down.
During this time Trooper Lockett pulled his patrol car beside the appellant’s car on the left-hand side. The appellant steered his car into the patrol car and forced it toward a guard rail. Trooper Lockett was able to avoid hitting the guard rail, and he soon succeeded with the help of the other officers in slowing the appellant’s speed.
When completely surrounded the appellant appeared to stop, and the officers emerged from their various patrol cars. The appellant thén put his car in forward gear and struck the rear of the patrol car directly in front of him. It, in turn, hit Trooper Devore and knocked him backward. The appellant next put his car in reverse and hit the sheriff’s car behind him, and he again started forward and struck the patrol car in front of him. Finally exhausted, he came to a rest and passed out in the front seat of his car. The officers were then able to arrest him.
The trial commenced on March 29, 1976. The victims in the Staley car were subpoenaed by the state to testify, but they were unable to attend. They were also listed as witnesses on the original information filed with the trial court. When the victims did not appear, the appellant moved to dismiss the charges of aggravated battery in counts one through four of the information on the ground he was denied his constitutional right to confront and cross-examine the witnesses against him. This motion was overruled by the trial court.
The Sixth Amendment to the Constitution of the United States and Section 10 of the Rill of Rights of the Constitution of the State of Kansas both guarantee an accused the right to confront the witnesses against him.
The appellant now asserts his rights were abridged because the victims in the Staley car did not testify. He states their testimony could have been critical because the only other testimony given in this case regarding the high-speed chase was by law enforcement personnel.
The accused in a criminal case does not have an absolute right to confront the witnesses at trial in every case. Certain well-recognized exceptions exist to the confrontation rule. If the witness is deceased or otherwise unable to communicate because of grave health or tender years, there is no absolute right to confrontation. Similarly, if the accused procures the witness’s absence from the trial, no absolute right to confrontation exists. (Reynolds v. United States, 98 U.S. 145, 25 L.Ed. 244.)
The appellant submits none of these exceptions apply in the instant case; however, he asserts a defendant has the right to insist upon a face-to-face meeting against every witness who should testify against him.
This argument lacks merit. The appellant fails to distinguish between his right to confront witnesses with his right to confront the victims of the crime. He was present in person and by counsel at the trial to confront the witnesses presented by the state. The victims of the aggravated battery, as charged in counts one through four of the information, Donald Staley, Myrna Staley, Devon Staley and David Everson were residents of the State of Colorado. Although the state attempted to secure their appearance at the trial, these victims were unable to appear. The appellant concedes not one word of testimony by these victims was offered by the state in the form of depositions, prior testimony or otherwise. Moreover, Devon Staley, a child of one year, was incapable of testifying.
In State v. James, 76 N.M. 376, 415 P.2d 350 (1966), the court dealt with this same issue. There, the victim of the aggravated battery was named in the information and his name was endorsed as a witness; however, he was out of the jurisdiction of the court when the case proceeded to trial. The court states:
“Appellant would have us construe the words, ‘to be confronted with the witnesses against him,’ which appear in both amendment VI of the Constitution of the United States, and article II, § 14 of the Constitution of New Mexico, as being synonymous with the words, ‘to be confronted with his victim.’ A witness is one who testifies under oath, and the constitutional guarantee contemplates confrontation only by those who actually testify against the accused, or whose testimony or statements are in some way brought to the attention of the court and jury upon the trial.” (p. 379.)
The court further explains:
“The right of confrontation does not embrace a situation such as we have here, where no prior testimony, statement, or utterance of any kind by the victim was brought to the attention of the jury, and none was offered by the state.
“The purposes of confrontation are to secure to the accused the right of cross-examination; the right of the accused, the court and the jury to observe the deportment and conduct of the witness while testifying; and the moral effect produced upon the witness by requiring him to testify at the trial. Wigmore on Evidence, 3d Ed., Vol. V, § 1395. See also Underhill’s Criminal Evidence, 5th Ed., Vol. II, § 515; Pointer v. State of Texas [380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923]; Douglas v. State of Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934.” (pp. 379-380.)
Thus, the constitutionally guaranteed right of confrontation does not require that the victim or the accuser be called as a witness. (See also State v. Triplett, 520 S.W.2d 166 [Mo. App. 1975]; Heard v. The State, 126 Ga. App. 62, 189 S.E.2d 895 [1972]; Gaertner v. State, 35 Wis. 2d 159, 150 N.W.2d 370 [1967]; State v. Boodry, 96 Ariz. 259, 394 P.2d 196 [1964], cert. denied, 379 U.S. 949, 13 L.Ed.2d 546, 85 S.Ct. 448 [1964]; and Harris v. Commonwealth, 315 S.W.2d 630 [Ky. 1958].)
We note the appellant made no attempt to subpoena any of the victims in the Staley car as witnesses, nor did he indicate to the trial court what evidence he believed might be developed from these victims. Further, he failed to seek a continuance “for good cause shown” as provided in K.S.A. 22-3401.
In Aycock v. United States, 62 F.2d 612 (9th Cir. 1932), cert. denied, 289 U.S. 734, 77 L.Ed. 1482, 53 S.Ct. 595 (1933), it is stated:
“The constitutional right of the defendants to be confronted by the witnesses in the trial of a criminal case imposes no obligation on the government to call any specific persons as witnesses. . . .” (p. 613.)
This principle has been followed in numerous cases. See in particular Allbritten v. State, 262 Ind. 452, 317 N.E.2d 854 (1974); Flatt v. Commonwealth, 468 S.W.2d 793 (Ky. 1971); Gaertner v. State, supra; The People v. Jolliff, 31 Ill. 2d 462, 202 N.E.2d 506 (1964); and People v. Fisher, 208 Cal. App. 2d 78, 25 Cal. Rptr. 242 (1962).
Here the appellant’s rights to confrontation were not violated. Nothing in the constitution requires the state to produce at trial any particular witness to the crime. We hold the failure of the state to call a particular person to give evidence is not a ground for reversal of conviction when the accused had the opportunity to confront all persons who were witnesses against him at his trial.
The appellant also challenges the sufficiency of the instructions given by the trial court. He claims the trial court should have given instructions on aggravated assault on a law enforcement officer as a lesser included offense of aggravated battery against a law enforcement officer, as well as an instruction on aggravated assault as a lesser included offense of aggravated battery. We find no error in the instructions given by the trial court.
The record reveals the trial court instructed the jury on aggravated battery and aggravated battery against a law enforcement officer, following Pattern Instructions for Kansas (PIK) Criminal, §§ 56.18, 56.19- Pursuant to K.S.A. 21-3107(3), the trial court also instructed on the lesser included offense of battery for aggravated battery, and the lesser included offense of battery against a law enforcement officer for aggravated battery against a law enforcement officer.
Our court has discussed the general rules pertaining to lesser included offenses on various occasions. In order to be a lesser included offense, all elements necessary to prove the lesser crime must be present and be required to establish the elements of the greater crime charged. If either crime requires proof of an element not necessarily included in the other, then it cannot be a lesser included offense of the other. (State v. Burnett, 221 Kan. 40, 558 P.2d 1087, and cases cited therein.)
Because any degree of aggravated assault or aggravated battery is basically an assault or battery with additional elements, our discussion begins with these statutes. K.S.A. 21-3408 defines assault as follows:
“An assault is an intentional threat or attempt to do bodily harm to another coupled with apparent ability and resulting in immediate apprehension of bodily harm. No bodily contact is necessary.”
The battery statute, K.S.A. 21-3412 provides:
“Battery is the unlawful, intentional touching or application of force to the person of another, when done in a rude, insolent or angry manner.”
Clearly, the elements of the two crimes are different. The crime of assault requires an immediate apprehension of bodily harm, which is not an element needed to establish the crime of battery.
Thus, an assault when done under circumstances of aggravation and against a law enforcement officer is not a lesser included offense of aggravated battery or aggravated battery against a law enforcement officer. Furthermore, comments by the Judicial Council to K.S.A. 21-3414 suggest the intent of the legislature in adopting the new Criminal Code was to clearly distinguish between assault and battery.
We have often cited the rule under K.S.A. 21-3107(3) that the trial court has an affirmative duty to instruct on lesser included offenses even though an instruction is not requested by the accused. This duty arises only where there is at least some evidence on which the jury might convict the accused of a lesser offense. The failure to instruct on some lesser degree of the crime is not grounds for reversal, if the evidence at the trial excludes a theory of guilt on the lesser offense. (State v. Burrow & Dohlmar, 221 Kan. 745, 561 P.2d 864; State v. Wright, 221 Kan. 132, 557 P.2d 1267, and cases cited therein.)
Here, the evidence showed a battery had been committed because an actual touching did occur. The battery was done with an automobile used in such a manner it constituted a deadly weapon. While it was not necessary under the facts presented, the trial court instructed the jury on the lesser included offenses of battery and battery against a law enforcement officer. We hold no error was committed by the trial court in failing to instruct that aggravated assault is a lesser included offense of aggravated battery or that aggravated assault on a law enforcement officer is a lesser included offense of aggravated battery against a law enforcement officer.
The judgment of the lower court is affirmed.
McFarland, J., not participating. | [
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The opinion of the court was delivered by
Yalentine, J.:
This was an action brought by the plaintiff in error against the defendants in error, John W. Bigelow, Kate A. Foreman, Charles P. Foreman and Emma Foreman, to quiet title to lots six and seven in block 43 in the Town of Doniphan. Bigelow answered separately. Kate A. Foreman made default, and Charles P. Foreman and Emma Foreman answered jointly by their guardian ad litem. The action was tried before the court without a jury, and the court dismissed the plaintiff’s action as against all the defendants, at plaintiff’s costs. To reverse the judgment or order of the court below dismissing the action the plaintiff now brings the case to this court.
I. The defendants claim that the action of the court below cannot be reviewed in this court. "We think it can. A judgment or order dismissing an action is such a final determination of the action as may be reviewed in the supreme court.
II. It is claimed that the plaintiff did not show sufficient interest in the property in controversy to maintain the action. We think he did. He was in the actual possession £pe pXOperty. It was so alleged in his petition, and so found by the court. This was sufficient to give him the right to maintain the action against any person who claimed to have an adverse interest: Civil Code, § 594; Eaton v. Giles, 5 Kas., 24. He had a right to have the action determined upon its merits. He had a right to know by a legal adjudication precisely what his rights were concerning the property in controversy. The court therefore erred in dismissing the action.
III. Let us consider the rights of the parties respectively Upon the merits of the controversy so far as we can from the pleadings of the parties and the special findings of fact made by the court below. The evidence has not been brought to this court. The plaintiff alleged in his petition that he was the owner of the property in controversy, that he held the legal title, and was in the peaceable possession thereof, and that the defendants claimed an adverse interest therein. The defendant Bigelow at first denied all the material allegations of the plaintiff’s petition except such as he admitted in his answer, and then alleged in his answer that originally the Doniphan Town Company held the legal title to said lots six and seven; that A. H. Dunning and A. E. Foreman held the equitable title tó lot six; that A. E. Foreman held the equitable title to lot seven; that Foreman mortgaged the undivided half of lot six and lot seven to W. F. Enders & Co., of whom Bigelow is the surviving partner; that judgments have been rendered on the notes secured by said mortgage which are still subsisting; that the plaintiff and A. E. Foreman intending to defraud Enders & Co., Foreman transferred to the plaintiff his equitable interest in the undivided-half of lot six and lot seven., and then that the plaintiff “ procured the legal title to said lots of the Doniphan Town Company.” Bigelow admits by this answer that the plaintiff holds the legal title to said lots; and as it was found by the court that the plaintiff was in the actual possession of the same, and as it was not found that A. B. Foreman ever had any equitable interest therein which could have been transferred to Bigelow, it would seem that the judgment should have been for the plaintiff and against Bigelow. Tire defendant Kate A. Foreman filed no answer to the plaintiff’s petition, and of course the material allegations of the petition as to her should have been taken as true: Code, § 128. Judgment should therefore have been rendered against her and in favor of the plaintiff. The court therefore manifestly erred in dismissing the plaintiff’s action as against her. The defendants Charles P. Foreman and Emma Foreman answered by their guardian ad litem. The answer did not put in issue any of the material allegations of the petition, nor did it raise any new issues. If these defendants were minors the court erred in trying, the case upon any such answer. The guardian ad Utem should have at least denied in the answer all the material allegations of the petition prejudicial to the defendants: Code, § 101. But if this answer was sufficient, then there was nothing to try as between the plaintiff and these defendants, and the judgment should have been rendered on the pleadings for the plaintiff. But whether the answer as framed was sufficient or not the judgment of dismissal was erroneous. ^
IT. With regard to the findings of the court it seems scarcely necessary to say that such of the findings as are not founded upon any issue or issues made by the pleadings are mere nullities. The court cannot go outside of the issues to make findings. Every finding that does not have some relevancy to the issues made by the pleadings must be disregarded. And we suppose it is hardly necessary to say that the court cannot find against the facts as admitted by the pleadings. Several of the findings in this case are outside of the issues, and some of them (though probably true as a matter of fact,) are against the facts as admitted by the pleadings. As we expect to send this case back to the court below for á new trial, and as the parties may there amend their pleadings so as to prove what the court really found, it will probably be necessary for us to consider some of the facts as found by the court although at present such facts are not in the case.
The court finds that the plaintiff has the legal title to lot six only, and not to lot seven; that the legal title to lot seven is still in "the Doniphan Town Company. It finds that the plaintiff has actual possession of both lots, but that he obtained his possession originally of the south half of lot six from A. H. Dunning and A. E. Foreman as their tenant, and that he acknowledged said tenancy by paying rent up to January 1st, 1862. It finds that E. Middleton once bought said lots of the Doniphan Town Company while said company owned them, and that he possibly still has some equitable interest therein. Now, it seeins scarcely necessary for us to say that after the plaintiff has shown beyond controversy that he is in the actual possession of the property in controversy, after he has shown jprima facie enough to entitle him to maintain his action against any one who claims an adverse interest to him, that neither of the defendants can defeat his action except by showing a paramount right in himself or herself; that such defendant cannot defeat the plaintiff’s action by showing a paramount right in some other person, or even in one of the other defendants; nor by showing that the Doniphan Town Company still has the legal title to lot seven; nor by showing that E. Middleton once bought both of the lots of the Town Company, and possibly still has some equitable interest therein paramount to the plaintiff’s right; nor that A. H. Dunning or his heirs possibly has some equitable interest in the south half of lot six; nor can the defendants show as a defense that any person except themselves has any right or interest in said lots.
If the plaintiff originally get possession of the south half of lot six as the tenant of A. H. Dunning and A. E. Foreman, and if that tenancy has never been annulled or abrogated by consent of the parties, then, as a rule, the plaintiff cannot dispute the right' of posses sion or of title of A. H. Dunning or of A. R. Foreman, or of any person who has succeeded to their right of possession or right of title so long as he retains that possession which he obtained originally from Dunning and Foreman. But this rule has its exceptions which we do not now think it is necessary to enumerate. If the plaintiff’s possession of the south half of lot six is that derived from A. H. Dunning and A. R. Foreman, it would prevent him from disputing the title and right of possession of Kate A. Foreman, the widow, and Charles P. Foreman and Emma Foreman, the children of A. R. Foreman, deceased, to the south half of lot six, because said widow and children have a present and existing right of title and right of possession to the same extent as A. R. Foreman had during his lifetime. Before he can dispute the title or right of possession of said widow and children he must first deliver up to them the possession he derived from the husband and ancestor. But said tenancy would not preclude the plaintiff from disputing the title and right of possession of the said widow and children to the rest of said lots, to-wit, the north half of lot six, and lot seven; and for this he might recover, , 0 or rather quiet ms title, notwithstanding the estoppel as to the south half of lot six. Nor would said tenancy preclude the plaintiff from disputing the title and right of possession of the defendant Bigelow to any part of either of said lots, for Bigelow has no title legal or equitable thereto, nor any possession or right of possession; (Chick v. Willetts, 2 Kas., 384;) and it is not certain that he may ever have any such title or right. The most that he , . . . n _. ° . can claim is simply a lien upon the properly — a security for the debt due to him, with a right to have the property sold to pay such debt if it is not otherwise paid. "When the plaintiff desires to contest the right of Bigelow to a lien upon said property he is not bound first to surrender the possession thereof to Bigelow, as he is to the heirs of A. R. Foreman when he wishes to contest their right, because Bigelow has no right to the possession. Even if the property should be sold it is not certain that Bigelow would purchase it, and if he did he would not be entitled to possession until the sate ghould be made and confirmed, and the sheriff’s deed executed. Until that time the mortgagor, and those holding under the mortgagor, would be entitled to possession; and until that time a tenant of the mortgagor would not be estopped from asserting his own title and right of possession in a suit to quiet the title against the mortgagee. It is said in Smith’s Leading Cases, “ that the rule which precludes the tenant from denying the landlord’s title in actions personal is founded in special and particular causes, and is not a general or common-law estoppel. And although the tenant is ordinarily estopped from denying the right of the landlord, in real or possessory actions brought for the recovery of the land, yet the estoppel is manifestly equitable and not legal.” (Doe v. Oliver, 2 Smith’s Lead. Cases, 657.) In this case we do not think that the plaintiff is estopped from denying the right of Bigelow upon either legal or equitable grounds. But if he was, if the property had been sold under the mortgage judgment, and Bigelow had purchased it and got his sheriff’s deed therefor, still the plaintiff would not be estopped from denying Bigelow’s right to an undivided half of lot six, for Bigelow’s mortgage did not cover all the property in controversy. It covered only the undivided half of lot six, and lot seven, leaving an undivided half of lot six free from said mortgage. But as Brenner held the south half of lot six only as a tenant, he would therefore be estopped from denying title and right of possession to the undivided half of the south half of lot six only, and of course the judgment shordd not have been against him for all the property. If upon the retrial of this case it shall be found that A. E. Foreman had no interest in the said mortgaged property, then the plaintiff will have a right to have his title and possession thereto quieted as against Bigelow. But if A. E. Foreman had some interest in said property which has not expired by limitation of time, as a lease for instance, Bigelow will have a right to have said interest sold as provided by law to satisfy any valid and subsisting judgments obtained on said mortgage.
Y. The question whether a mortgage can be foreclosed against the estate of a deceased person in the district court is not in this case, because it appears from the record in this case that all the foreclosure judgments were rendered against A. E. Foreman in his lifetime. One of said judgments however was revived after his death against his widow, children, and administrator, which was correct. The almost universal practice in this state is to foreclose a mortgage in the district court whether the defendant be an administrator or not; and such practice we presume is correct.
YI. The plaintiff moved the court for a new trial. The motion was made within three days after the decision of the court was given, that being the time prescribed by the statute: Code, § 308. The motion was continued until the next term C01irt, and was then disposed of, the court overruling the motion. It is claimed that the plaintiff lost his rights under the motion by reason
of its being continued till the next term. We do not think so. The statute does require that the motion be heard and decided within three days after the decision of the court is rendered. It only requires that the motion be made within that time. ' If made within that time, the motion may be heal’d and decided at any subsequent time during the term, or at some subsequent term. There is nothing in the law that prevents the continuance of a motion any more than there is to prevent the continuance of any other proceeding: Coleman v. Edwards, 5 Ohio St., 51, 55, 56. Whether the continuance of the motion for a new trial to the next term of the court would continue the right to make a bill of exceptions embodying the evidence or the charge of the court, or some other proceeding of the court desired to be made a part of the record by a bill of exceptions, we do not now choose to consider, as the question is not now before us. No such question is in this case. In Ohio the continuance of the motion for a new trial would not continue the right to make such a bill of excep tions: Kline v. Wyman, 10 Ohio St., 223; Morgan v. Boyd, 13 Ohio St., 271.
The judgment of the court below is reversed, and cause remanded for a new trial in accordance with this opinion.
All the Justices concurring. | [
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The opinion of the court was delivered by
Rosen, J.:
On December 10, 2010, this court heard arguments in the first-degree felony-murder appeal of defendant John Hemy Horton. We have determined that the record is insufficient for determination of one of the issues that Horton raised on appeal; Did the district court commit reversible error when it held that it had no jurisdiction to reopen the evidence after the jury began deliberating? This court therefore remands the case to the district court for a new hearing and decision relating to this issue.
In 1974, 13-year-old L.W. went missing on her way home from a public swimming pool. Skeletal remains were found in a nearby field several months later. In 2003, after DNA testing confirmed that the remains were L.W.’s, the State charged Horton with first- degree felony murder. Although no evidence directly linked him to the girl’s death, the State constructed a theory based on Horton’s proximity to the victim, materials found in his car, and interactions that he had with other teenage girls. He was tried and convicted. The facts and grounds for reversal of the first conviction are set out in State v. Horton, 283 Kan. 44, 151 P.3d 9 (2007). The facts developed at the second trial were generally the same as at the first, with the significant addition of the testimony of two prisoners who testified that Horton had told them that he had killed a girl under circumstances conforming to the State’s theory.
Following the conclusion of the evidentiary presentation and the parties’ closing arguments, and after the jury began deliberating, Horton’s counsel made an oral motion to suspend deliberations for 2 days in order to give the defense time to translate and analyze a recorded telephone call between Sergio Castillo-Contreras, who was one of the two prisoner-witnesses, and Castillo-Contreras’ mother. The essence of the conversation apparently was that a guard was recruiting Castillo-Contreras to testify because of some unspecified problem with the other inmate witness.
Horton’s counsel informed the district court that the only authority for reopening a case was the “living, breathing Constitution of the United States of America.” Counsel for the State informed the district court that “[t]here is no mechanism that would allow for this.” The court concluded that it did not have the authority to suspend the jury deliberations to allow for the introduction of additional evidence.
Horton contends on appeal that the district court abused its discretion by refusing to exercise it. In Horton’s view, the district court had discretion to allow the admission of additional evidence, even after the jury had begun its deliberations. We agree.
The parties before the district court and the district court itself erred in their statements of the law. In fact, a district court has “broad discretion” to determine whether a party may reopen its case to offer additional evidence. State v. Murdock, 286 Kan. 661, 674, 187 P.3d 1267 (2008). Murdock, quoting from United States v. Blankenship, 775 F.2d 735, 741 (6th Cir. 1985), explained the court’s discretionary authority:
" ‘In exercising its discretion, the court must consider the timeliness of the motion, the character of the testimony, and the effect of the granting of the motion. The party moving to reopen should provide a reasonable explanation for failure to present the evidence in its case-in-chief. The evidence proffered should be relevant, admissible, technically adequate, and helpful to the jury in ascertaining the guilt or innocence of the accused. The belated receipt of such testimony should not “imbue the evidence with distorted importance, prejudice the opposing party s case, or preclude an adversary from having an adequate opportunity to meet the additional evidence offered.” [Citation omitted.]’ ” Murdock, 286 Kan. at 672-73.
In addition to Murdock, a long line of Kansas cases has recognized that a district court has the discretionary option to allow a party to reopen its evidentiary presentation. In State v. Braun, 209 Kan. 181, 188, 495 P.2d 1000, cert. denied 409 U.S. 991 (1972), this court held: “It has long been the law of Kansas that the granting of permission to the state to reopen its case rests in the sound discretion of the trial court.” In State v. Carmichael, 240 Kan. 149, 157, 727 P.2d 918 (1986), the court reiterated that it is “a matter of discretion whether the trial court permits either or both of the parties to reopen a case for introduction of additional evidence after having rested. [Citation omitted.]” See also State v. Davis, 237 Kan. 155, 159, 697 P.2d 1321 (1985) (district court abused its discretion by not allowing defendant to present surrebuttal evidence after both parties rested); State v. Wooden, 110 Kan. 315, 203 Pac. 722 (1922) (district court did not abuse its discretion in allowing State to reopen case after jury instructions were given); State v. Moon, 71 Kan. 349, 80 Pac. 597 (1905) (district court did not abuse its discretion in reopening case to allow newly discovered impeachment testimony after evidence was closed); State v. Teissedre, 30 Kan. 476, 2 Pac. 650 (1883) (district court did not abuse its discretion in allowing State to reopen its case to present jurisdictional evidence during defendant’s closing argument); Hudson v. Solomon, 19 Kan. 177 (1877) (Supreme Court had discretion but elected not to reopen submission of evidence several days after case submitted for decision in original trial before the Supreme Court in election challenge); Cook v. Ottawa University, 14 Kan. 548 (1875) (tribunal had discretion to reopen case after it has been submitted to a referee for decision).
In the present case, the State argued to this court that the district court was confronted with a novel question and that Kansas precedent provided it with no instruction on whether it had the discretion to reopen the introduction of evidence once a case had been submitted to a jury. In Anderson v. Berg, 202 Kan. 659, 660-61, 451 P.2d 248 (1969), however, this court expressly reaffirmed the doctrine of judicial discretion in those circumstances. The court found that die district court abused its discretion in allowing the introduction of additional evidence in response to a jury question due to a failure to establish a proper foundation for the evidence, not due to reopening the case for admission of additional evidence. See also Hudson v. Solomon, 19 Kan. at 185; Cook v. Ottawa University, 14 Kan. at 551-52 (holding that cases may be reopened after evidence has been submitted to the tribunal for consideration).
The normally highly deferential abuse of discretion standard is affected by a district court’s failure to consider or apply properly the correct legal standard. State v. Brinklow, 288 Kan. 39, 42, 200 P.3d 1225 (2009). It is an abuse of discretion for a district court to issue a “blanket ruling” that disposes of a discretionary determination automatically without analyzing the factors that would enter into the discretionary decision; i.e., it is an abuse of discretion to refuse to exercise discretion or fail to appreciate the existence of the discretion to be exercised in the first place. Kansas Dept. of Revenue v. Powell, 290 Kan. 564, 569-70, 232 P.3d 856 (2010). “A tribunal’s failure to exercise its discretionary authority is an abuse of discretion.” Powell, 290 Kan. 564, Syl. ¶ 5.
The district court abused its discretion in refusing to hear and weigh evidence relating to the admissibility of the recorded telephone conversation and the possible impeachment of the witness. The analysis does not, however, end here. In general, if the district court abuses its discretion, the defendant has the burden of demonstrating resulting prejudice that warrants reversal. See State v. McReynolds, 288 Kan. 318, 329, 202 P.3d 658 (2009); State v. Boyd, 281 Kan. 70, 80, 127 P.3d 998 (2006). If substantial justice has been done, viewed in light of the entire trial record, an error that does not cause prejudice to the defendant’s substantial rights does not require reversal. State v. Dixon, 289 Kan. 46, 67, 209 P.3d 675 (2009).
In the present case, it is impossible to determine whether the abuse of discretion resulted in prejudice to the defendant. The record contains nothing more than speculations about the contents of the recorded telephone conversation and the significance, if any, that the conversation might have had for the parties’ respective cases. The record also contains nothing more than fleeting discussion of the factors that a court should address in exercising its discretion to reopen a case. See Murdock, 286 Kan. at 672-73; Blankenship, 775 F.2d at 741.
Because this court cannot determine from the record on appeal whether the failure to exercise discretion amounted to prejudicial error, this matter is remanded to the district court for determination of the narrow issue of whether the court should have reopened the presentation of evidence to allow the jury to hear evidence relating to the recording of Castillo-Contreras’ telephone conversation and any rebuttal evidence offered by the State. The hearing may include exhibits, transcripts of the recorded conversation, testimony of witnesses, and arguments by counsel.
The Supreme Court retains jurisdiction over the case on appeal pending resolution of the issue on remand. The appellant is ordered to file a report with this court on or before August 8, 2011, explaining the status of the proceedings. When the district court enters judgment on this matter, counsel for the appellant is to obtain a certified, file-stamped copy of the order and file it with this court. The Supreme Court will then inform the parties whether they have additional duties to perform in assisting this court with resolving this issue.
The defendant’s appellate counsel is responsible for maintaining contact with the district court and the defendant’s trial counsel during remand. If appellate counsel seeks to be served with district court orders, counsel should enter an appearance before the district court requesting such service.
Appeal suspended; remanded with directions.
Michael J. Malone, District Judge, assigned. | [
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The opinion of the court was delivered by
Kingman, C. J.:
This was an ordinary action of replevin. There was a verdict and judgment for the defendants. The plaintiffs bring the case to this court for review, alleging various errors.
The record contains none of the evidence, nor does it pretend to show what the evidence tended to prove. We can only infer that there was evidence from the fact that issues of fact were made up. But this does not afford any decisive indication that there was any evidence; for the issues were d 7 suda that if there was no evidence the trial must, of necessity, have resulted in a verdict for the defendants. One of the errors complained of is the giving of certain instructions, and the refusal to give others. It would be labor wasted to examine the instructions given, for even it were certain that they were not correct as legal principles, there would be the uncertainty as to whether they applied to the evidence in the case; and if they did not, then though there may have been error, it is not shown to be prejudicial to the plaintiffs. The plaintiffs in error must show that such errors have been committed as have wrought prejudice to them, or may have done so, or there can be no reversal of the judgment. It is not necessary to bring up all the evidence in every case, but enough must be shown, either by the testimony or by statement in the kill of exceptions, for this court to see that the instructions are applicable to the evidence. The same remark applies to instructions refused. If they enunciate correct principles of law, and have no applicability to the case, then the court does right in refusing to give them; and in the absence of the evidence we are unable to say that such instructions ought to have been given. All presumptions are in favor of the rulings of the court below, and this presumption is not removed by any number of possibilities.
There was one instruction given that is possibly an exception to tbe general rule, as it is predicated upon one of tbe issues made by tbe pleadings. Tbe court instructed tbe jury that tbe plaintiffs must show that tbe Town of Leroy was incorporated. Tbe counsel for plaintiffs in error says that tbis fact was not in issue, as tbe part of tbe answer denying it was not sworn to. Code, § 108. But tbis is an error of tbe counsel. Tbe third, fourth, and fifth clauses in the answer are sworn to, and these are the clauses that put plaintiff’s incorporation in issue; therefore the direction in this point was correct.
The verdict is as follows: “We the jury find for the defendants, that at the time of the commencement of tbis suit they did not wrongfully detain the property in controversy.”
There can be no question but that the above is a good verdict. The action of replevin, under the code, is for the wrongful detention. That is the main question in issue; and , x ' it relates to the time of the commencement of the action. There are many causes why a person who may not be the owner of the property still holds it, and yet not wrongfully. If not held wrongfully, the verdict for the defendant settles the action then pending, and it settles nothing more — neither the title, nor anything more than it purports to settle.
There being no error apparent in tbe record, the judgment is affirmed.
All the Justices concurring. | [
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Per Curiam-.
This is an original attorney discipline proceeding filed by the office of the Disciplinary Administrator against the respondent, Jimmie A. Vanderbilt, of Baldwin Ciiy, an attorney admitted to the practice of law in Kansas in 1995.
On September 28, 2010, the office of the Disciplinary Administrator filed a formal complaint against the respondent alleging violations of the Kansas Rules of Professional Conduct (KRPC). Respondent failed to file an answer to the complaint. Respondent eventually signed a stipulation of facts with the Disciplinaiy Administrator’s office. A panel of the Kansas Board for Discipline of Attorneys held a hearing on the complaint and determined that respondent violated KRPC 8.4(a) (2010 Kan. Ct. R. Annot. 603) (misconduct); 8.4(d) (engaging in conduct prejudicial to the administration of justice); 8.4(g) (engaging in any other conduct that adversely reflects on the lawyer’s fitness to practice law); and Kansas Supreme Court Rule 211(b) (2010 Kan. Ct. R. Annot. 327) (failure to file timely answer in disciplinaiy proceeding). The panel made the following findings of fact and conclusions of law and recommended this court indefinitely suspend respondent’s law license. A majority of this court agrees and imposes an indefinite suspension.
"FINDINGS OF FACT
“2. The Respondent was previously married to Lisa Vanderbilt. From this union, two children were bom. Following the Respondent’s divorce from Lisa Van derbilt, the Court ordered that the Respondent pay child support. The Respondent’s monthly child support obligation of $940 was calculated based upon the salary that he received when he was the Jefferson County Attorney. The Respondent has not worked as the Jefferson County Attorney since January, 2005.
“3. The Honorable Philip Sieve was assigned to preside over post-divorce matters in the Respondent’s case. In late 2008, Judge Sieve issued an order to show cause why the Respondent should not be held in contempt for not complying with the child support order in effect. Judge Sieve scheduled the hearing on the order to show cause for December 18, 2008.
“4. On December 18, 2008, the Respondent appeared pro se at the show cause hearing. Darla Ottensmeier, an enforcement officer for the Kansas State Department of Social and Rehabilitation Services also appeared. Judge Sieve determined that the Respondent was in arrears on the child support order in excess of $60,000. Based on the arrearage, Judge Sieve found the Respondent in contempt of the child support order. Judge Sieve informed the Respondent that he would allow him to purge the contempt by commencing regular monthly payments of $1,040.
“5. The Respondent failed to purge the contempt by commencing regular payments. In the summer of 2009, Ms. Ottensmeier filed a motion for sanctions for the Respondent’s failure to pay as agreed in December, 2008.
“6. The Court took up the motion for sanctions on September 18, 2009. The Respondent failed to appear at the hearing. (Footnote: A copy of the notice of hearing was sent to the last address the Respondent provided the court, 1040 New Hampshire, Lawrence, Kansas. However, the Respondent had not practiced from that office for two years and did not receive the notice.) Judge Sieve granted the motion for sanctions and directed that a warrant be issued for the Respondent’s arrest for failing to appear. Additionally, Judge Sieve directed that the Respondent serve 30 days in custody.
“7. On January 8, 2010, the Court signed the warrant for the Respondent’s arrest. On January 11, 2010, the Respondent was arrested on the bench warrant and taken into custody.
“8. The Respondent represented Latiseia E. Stano in two criminal cases filed in the Shawnee County District Court, before the Honorable Richard Anderson. The cases, numbered 09CR2117 and 09CR2195, were scheduled for a plea hearing on January 15, 2010. The Respondent received notice of the hearing.
“9. The Respondent represented Heather A. Wendt in a post-conviction matter filed in the Shawnee County District Court, before Judge Anderson. The case, numbered 07CR2051, was scheduled for a show cause hearing on January 15, 2010. The Respondent received notice of the hearing.
“10. On January 14, 2010, Teri Leahy, a friend of the Respondent, called Judge Anderson’s chambers. Ms. Leahy identified herself as the Respondent’s assistant and informed the judge’s assistant that something had come up and the Respondent would not be able to appear in court the following day. Ms. Leahy did not inform the judge’s assistant that the Respondent was in jail. The judge’s assistant informed Ms. Leahy that the Respondent needed to file a written motion and that the cases would be continued.
“11. Due to his incarceration, the Respondent was unable to file a written motion to continue the hearings and the Respondent did not call or ask another attorney to appear for him at the hearings or to make a written request for a continuance. The Respondent failed to appear in court on January 15, 2010, in the three cases because he was incarcerated.
“12. Ms. Stano appeared in court for her plea hearing. Neither the Respondent nor Ms. Leahy contacted Ms. Stano to let her know that her plea hearing had been rescheduled.
“13. On January 25, 2010, Judge Sieve granted the Respondent work release. While the Respondent was on work release, on January 29, 2010, the Respondent stopped by Judge Anderson’s chambers. The Respondent apologized for missing the cases and apologized for not explaining his circumstances earlier. The Respondent explained that he was unable to attend the hearings because he had been in jail for failing to pay his child support. Judge Anderson informed the Respondent that Ms. Stano’s plea hearing and Ms. Wendt’s show cause hearing had been rescheduled to February 18, 2010.
“14. On February 4, 2010, Judge Sieve held a review hearing. During the hearing, Judge Sieve suspended the balance of the 30 day sentence and released the Respondent from jail on the condition that the Respondent comply with the payment schedule.
“15. The Respondent’s child support obligation was reduced by agreement of the parties to $575 a month, in March, 2010.
“16. The Respondent made no child support payments from February 5,2005, shortly after he left office as the Jefferson County Attorney, until after being found in contempt of court. Since the contempt proceedings began, the Respondent has made the following child support payments:
January, 2009 $1,200
March, 2009 $1,040
April, 2010 $1,151
August, 2010 $1,900
The Respondent has failed to comply with the Court’s order to pay child support. The Respondent continues to be in contempt of court. As of November 15,2010, the Respondent’s child support arrearage totaled $76,963.75.
“17. At the hearing on this matter, the Respondent testified that he knew he had the right to an attorney at the hearing, but waived that right and proceeded, pro se. He admitted he had not kept the Kansas Supreme Court Clerk apprised of his mailing address because he lived in a camper and worked from whatever county law libraiy he was at during a particular day which changed often. Nonetheless, he had received proper notice of the disciplinary hearing and had no objection to the jurisdiction, hearing date, time or place, or composition of the Hearing Panel. Despite receiving due notice of the hearing and the Formal Complaint, he did not timely file an Answer (or file one at all).
“18. The Respondent also admitted that he drove to the hearing on a suspended driver’s license, which had been suspended for many months.
“CONCLUSIONS OF LAW
“1. KRPC 8.4 is the general misconduct rule, provided by the Kansas Rules of Professional Misconduct.
‘It is professional misconduct for a lawyer to:
‘(a) Violate or attempt to violate the rules of professional conduct, knowingly assist or induce another to do so, or do so through the acts of another;
‘(d) engage in conduct that is prejudicial to the administration of justice;
‘(g) engage in any other conduct that adversely reflects on the lawyer’s fitness to practice law.’
In the Formal Complaint, the Deputy Disciplinary Administrator alleged that the Respondent violated KRPC 8.4(a), KRPC 8.4(d), and KRPC 8.4(g). In the stipulation, the Respondent generally agreed that he violated KRPC 8.4. However, at the hearing, the Respondent specifically denied violating KRPC 8.4(g).
“2. Based upon the Respondent’s stipulation, the Hearing Panel concludes that the Respondent violated KRPC 8.4(a) and KRPC 8.4(d).
“3. The Respondent violated KRPC 8.4(a) by engaging in professional misconduct. It is professional misconduct and in violation of the Kansas Rules of Professional Conduct for the Respondent to fail to pay his child support, fail to keep his address current in his domestic case, fail to appear at the hearing on the motion for sanctions, be found in contempt of court, fail to purge himself of the contempt, fail to appear in court on January 15, 2010, and fail to provide a written Answer to the Formal Complaint. Accordingly, the Hearing Panel concludes that the Respondent violated KRPC 8.4(a).
“4. The Respondent engaged in ‘conduct that is prejudicial to the administration of justice’ when he violated court orders. The Respondent violated court orders by failing to pay his child support, failing to appear at the hearing on the motion for sanctions, failing to purge himself of the contempt, and failing to appear in court on January 15, 2010. As such, the Hearing Panel concludes that the Respondent violated KRPC 8.4(d).
“5. The Respondent argued that he did not violate KRPC 8.4(g). The Respondent’s argument lacks merit.
“6. KRPC 8.4(g) provides that it is ‘professional misconduct for a lawyer to . . . engage in any other conduct that adversely reflects on the lawyer’s fitness to practice law.’ The Respondent’s misconduct does reflect adversely on his fitness to practice law. Repeatedly failing to comply with court orders and knowingly driving on a suspended driver’s license for months adversely reflects on the Re spondent’s respect for and fitness to practice law. Therefore, the Hearing Panel concludes that the Respondent violated KRPC 8.4(g).
“7. The Kansas Supreme Court Rules require attorneys to file Answers to Formal Complaints. Kan. Sup. Ct. R. 211(b) provides the requirement:
‘The Respondent shall serve an answer upon the Disciplinary Administrator within twenty days after the service of the complaint unless such time is extended by the Disciplinary Administrator or the hearing panel.’
Kan. Sup. Ct. R. 211(b). In this case, the Respondent violated Kan. Sup. Ct. R. 211(b) by fading to file a written Answer to the Formal Complaint. The Respondent acknowledged that he knew that he was required to file a written Answer to the Formal Complaint. The Respondent rationalized his conduct by stating that because he knew he was not going to be disputing any facts, he need not file a written Answer. Unfortunately for the Respondent, the rule does not provide that written Answers to Formal Complaints are only necessary when a Respondent wishes to dispute the allegations in the Formal Complaint. When a Hearing Panel receives a timely Answer to a Formal Complaint, the Hearing Panel is able to plan accordingly. In this case, given the Respondent’s failure to Answer, the Hearing Panel did not know the Respondent’s position on any of the allegations until the outset of the hearing. Accordingly, the Hearing Panel concludes that the Respondent violated Kan. Sup. Ct. R. 211(b).
“AMERICAN BAR ASSOCIATION “STANDARDS FOR IMPOSING LAWYER SANCTIONS
“In making this recommendation for discipline, the Hearing Panel considered die factors outlined by the American Bar Association in its Standards for Imposing Lawyer Sanctions (hereinafter ‘Standards’). Pursuant to Standard 3, the factors to be considered are the duty violated, the lawyer’s mental state, the potential or actual injury caused by the lawyer’s misconduct, and the existence of aggravating or mitigating factors.
“Duty Violated. The Respondent violated his duty to the legal system, legal profession, and public to comply with court orders and court rules.
“Mental State. The Respondent knowingly violated his duty.
“Injury. As a result of the Respondent’s misconduct, the Respondent caused actual injury.
“Aggravating or Mitigating Factors. Aggravating circumstances are any considerations or factors that may justify an increase in the degree of discipline to be imposed. In reaching its recommendation for discipline, the Hearing Panel, in this case, found the following aggravating factors present:
“Prior Disciplinary Offenses. On April 22, 2005, the Kansas Supreme Court suspended the Respondent’s license to practice of law for having violated KRPC 1.1, KRPC 1.3, KRPC 3.2, KRPC 8.4(d), and KRPC 8.4(g).
“A Pattern of Misconduct. The Respondent engaged in a pattern of misconduct by failing to comply with court orders over an extended period of time. From March, 2005, through December, 2009, the Respondent failed to malee any child support payments. The Respondent failed to comply with the court order to pay child support after being found in contempt. The Respondent failed to comply with the court order to pay child support after being incarcerated for three weeks. The Respondent’s failure to comply with the child support order lead [sic] the Respondent to be unable to appear in [sic] behalf of his clients on January 15, 2010. The Respondent failed to appear in court for the motion for sanctions in his own divorce case because he failed to keep the court properly advised of his address. The Respondent has been driving on a suspended driver’s license for months. The Hearing Panel, therefore, concludes that the Respondent engaged in a pattern of misconduct.
“Multiple Offenses. The Respondent committed multiple offenses by violating KRPC 8.4(a), KRPC 8.4(d), KRPC 8.4(g), and Kan. Sup. Ct. R. 211(b).
“Bad Faith Obstruction of the Disciplinary Proceeding by Intentionally Failing to Comply with Rules or Orders of the Disciplinary Process. The Respondent failed to file an Answer to the Formal Complaint, in violation of Kan. Sup. Ct. R. 211(b). The Respondent’s failure to file an Answer obstructed the proceeding, in that, the Hearing Panel had no idea what the Respondent’s position was regarding the facts alleged in the Formal Complaint until the time of the hearing.
“Substantial Experience in the Practice of Law. The Respondent has substantial experience in the practice of law, having been admitted to the practice of law in the State of Kansas in 1994.
“Indifference to Making Restitution. While child support is not restitution, the Respondent appears to be indifferent to complying with the child support order which would benefit his children. The Respondent has not made regular child support payments since leaving the office as the Jefferson County Attorney in January, 2005. The Respondent has failed to secure employment which would allow him to provide, financially, for his children and admitted that even absent a law license he is capable of gainful employment.
“Illegal Conduct, Including that Involving the Use of Controlled Substances. In Ins letter of response, the Respondent disclosed that he was previously arrested in Leavenworth County, Kansas, for driving on a suspended driver’s license and that he had a traffic matter pending in Saline County, Kansas, where he had been charged with driving a vehicle without proper registration and driving a vehicle without liability insurance. During the hearing on the Formal Complaint, the Respondent admitted that the car he was driving at the time of the stop did not have liability insurance. Also during the hearing on the Formal Complaint, the Respondent admitted that his license to drive remained suspended. He indicated that if he paid the fine pending in Saline County, Kansas, he should be able to have his driver’s license reinstated.
“Mitigating circumstances are any considerations or factors that may justify a reduction in the degree of discipline to be imposed. In reaching its recommendation for discipline, the Hearing Panel, in this case, found the following mitigating circumstances present:
“Absence of a Dishonest or Selfish Motive. The Respondent’s misconduct does not appear to have been motivated by dishonesty or selfishness.
“The Present Attitude of the Attorney as Shown by His or Her Cooperation During the Hearing and His or Her Full and Free Acknowledgment of the Transgressions. During tire hearing, the Respondent fully cooperated. He acknowledged the facts which gave rise to the violations. Further, the Respondent stipulated to violations of KRPC 8.4(a) and KRPC 8.4(d).
“Remorse. At the hearing on this matter, the Respondent expressed genuine remorse for having failed to pay his child support and for violating court orders.
“Remoteness of Prior Offenses. The misconduct that gave rise to the Respondent’s previous discipline is remote in time, having occurred approximately seven years ago. And, much of the Respondent’s previous misconduct is remote in character. However, the Respondent’s misconduct that gave rise to the conclusion that he violated KRPC 8.4(d) is not remote in character to the misconduct in this case.
“In addition to the above-cited factors, the Hearing Panel has thoroughly examined and considered the following Standards:
‘6.22 Suspension is appropriate when a lawyer knowingly violates a court order or rule, and there is injury or potential injury to a client or a party, or interference or potential interference with a legal proceeding.
‘7.2 Suspension is generally appropriate when a lawyer knowingly engages in conduct that is a violation of a duty owed as a professional, and causes injury or potential injury to a client, the public, or the legal system.
‘8.1 Disbarment is generally appropriate when a lawyer: . . .
(b) has been suspended for the same or similar misconduct, and intentionally or knowingly engages in further acts of misconduct that cause injury or potential injury to a client, the public, tire legal system, or the profession.’
“RECOMMENDATION
“The Deputy Disciplinary Administrator recommended that the Respondent be indefinitely suspended. The Deputy Disciplinary Administrator also argued that if the Hearing Panel was inclined to recommend a definite suspension, that the Hearing Panel also recommend that the Respondent be required to undergo a reinstatement hearing where he could establish that he had purged himself of the contempt of court, prior to reinstatement. The Respondent did not make a recommendation for discipline. However, the Respondent argued that he did not believe that the violations warranted a suspension.
“The Hearing Panel is concerned about the Respondent’s apparent lack of understanding of the significance of his misconduct. For example, the Respondent argued that his misconduct was a technical violation for failing to appear in court on January 15, 2010, at the time he was incarcerated.
“The Respondent fails to see the big picture. The Respondent fails to understand that his misconduct started long before January 15,2010. The Respondent’s misconduct began in March, 2005, when he stopped paying his child support (which by itself is a court order) and that misconduct continues to this day. The Respondent’s misconduct also includes his repeated violations of court orders, his failure to take proper care of business so that he would receive proper notice of hearings in his divorce case, and his failure to file a written Answer to the Formal Complaint.
“Despite his statements to the contrary, the Respondent’s actions seem to indicate that he is not interested in maintaining his law license. The Respondent failed to attempt to hire an attorney to represent him in the disciplinary proceeding. The Respondent failed to file a written Answer to the Formal Complaint. The Respondent brought no corroborating evidence in the form of witnesses or exhibits. The Respondent failed to present a plan to the Hearing Panel as to how he plans to purge himself of the contempt of court.
“Because the Respondent was previously suspended for violating KRPC 8.4(d), according to ABA Standard 8.1, disbarment is appropriate. However, based upon the recommendation of the Deputy Disciplinary Administrator and the mitigating circumstances, the Hearing Panel unanimously recommends that the Respondent be suspended from the practice of law for an indefinite period of time and any reinstatement should require that the contempt of court be purged.
“Costs are assessed against the Respondent in an amount to be certified by the Office of the Disciplinary Administrator.”
Discussion
In a disciplinary proceeding, this court considers the evidence, the findings of the disciplinary panel, and the arguments of the parties and determines whether violations of KRPC exist and, if they do, what discipline should be imposed. Attorney misconduct must be established by clear and convincing evidence. In re Lober, 288 Kan. 498, 505, 204 P.3d 610 (2009); see Supreme Court Rule 211(f) (2010 Kan. Ct. R. Annot. 327). Clear and convincing evidence is “ ‘evidence that causes the factfinder to believe that “the truth of the facts asserted is highly probable.” ’ ” 288 Kan. at 505 (quoting In re Dennis, 286 Kan. 708, 725, 188 P.3d 1 [2008]).
In this case, respondent filed no exceptions to the panel’s final hearing report. Accordingly, the report’s findings and conclusions are deemed admitted. Supreme Court Rule 212(c) (2010 Kan. Ct. R. Annot. 344). The evidence before the hearing panel establishes the charged misconduct of the respondent by clear and convincing evidence and supports the panel’s conclusions of law. We therefore adopt the panel’s findings and conclusions, except as noted below.
At the hearing before this court, the Disciphnaiy Administrator’s office asked the court to administer an indefinite suspension as recommended by the hearing panel. A majority of the court agrees that indefinite suspension is appropriate, with reinstatement conditioned upon respondent purging himself of the contempt that is the subject of these proceedings. A minority of the court would disbar die respondent.
Conclusion and Discipline
It Is Therefore Ordered that Jimmie A. Vanderbilt be indefinitely suspended from the practice of law in the state of Kansas, effective on the filing of this opinion, in accordance with Supreme Court Rule 203(a)(2) (2010 Kan. Ct. R. Annot. 276).
It Is Further Ordered that respondent shall comply with Supreme Court Rule 218 (2010 Kan. Ct. R. Annot. 370), and, if respondent seeks reinstatement, he shall comply with Supreme Court Rule 219 (2010 Kan. Ct. R. Annot. 370). Any request for reinstatement must demonstrate respondent has purged himself of the contempt of court that is at issue in these proceedings.
It Is Further Ordered that the costs of these proceedings be assessed to the respondent and that this opinion be published in the official Kansas Reports. | [
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The opinion of the court was delivered by .
Brewer, J.:
This is a proceeding in this court to reverse an order of the judge of the district court of Douglas county dissolving a temporary injunction. The facts so far as they bear upon the question which in our judgment determines the case, are these: A. M. Dunham was a justice of the peace in Sherman township, Leavenworth county. John E. Dunham was a constable in the same township. The other defendant in error, N. Hoysradt, obtained three judgments before the said justice of the peace against the two plaintiffs in error. Executions were issued by the justice at the instance of Hoysradt and placed in the hands of the constable. By virtue of two of such executions he levied on a lot of personal property belonging to plaintiffs in error. They bring their action in the district court of Douglas county, alleging that since their rendition these three judgments have been by them paid, and praying that said justice be ordered to enter satisfaction of said three judgments, that said constable be ordered to return the executions and give up to plaintiffs the property seized thereunder, and for an injunction restraining all the defendants from ever attempting to enforce the collection of either of the three judgments. Upon the filing of the petition a temporary injunction was allowed, which afterwards upon motion supported by affidavits was dissolved. Was there error in this last order? We think not, and that it must be affirmed.
The action., it will be seen, is, as against the Dunhams, for acts done by them in virtue of their respective offices, and to control their proceedings as such officers. It is time the charge is that they are confederating with Hoysradt to accomplish the alleged wrongs; but yet they are carrying out but the purposes of this confederation only by using the powers they possess as officers. All the acts charged to have been done by them were done by virtue and under color of their respective offices. They were both officers of Lemervworth county, and the cause of action arose in that county. It does not appear that any act was done by the parties outside of that county. Now, § 48 of the code of civil procedure, (Gen. Stat., p. 639,) reads: “ Actions for the following causes must be brought in the county where the cause or some part thereof arose: * * * * Second, An action against a public officer for an act done'by him in virtue or under color of his office, or for a neglect of Ms official duties.” The language of this section is plain, and needs no comment from us. By it proceedings against public officers for official acts are referred to the courts of the county where the acts are done. It is an expression of the purpose of the legislature to localize suits against officers. It relieves them from the necessity of deciding between the conflicting orders of courts of different counties. They are amenable only to the courts of the county in which they are acting. This may perhaps need to be partially qualified by the statement that where process is issued from the courts of one county to the officers of another, they become for that case the officers of the court from which the process issues, and amenable to its orders.
But it may be said that there is no such restriction as to the defendant Hoysradt; that a suit of this kind may be brought against Mm in any county where he may be summoned, and that the district court of Douglas county, acquiring jurisdiction of him, may properly bring in all other parties. This would be true in cases where the action is not from its nature local. Take a note or an account for instance, which may be sued on in any county in which one of the defendants resides or may be summoned. "When the district court acquires jurisdiction by service upon one, it can bring in all other defendants, though they reside in the remotest parts of the State. Not only that, but it can issue injunctions and attachments to, and appoint receivers to take possession of property in, any county. But on the other hand, if suit be upon a note cmd mortgage, it must be in the county where the land lies. Though one or even all of the makers of a note resided in a county different from that in which was the land, the suit must be in the latter and cannot be in the former county. So in this case; if the action had been brought in Leavenworth county where the cause of action arose, the district court there could acquire jurisdiction of the defendant Hoysradt by service in Douglas county; but the district court of Douglas county could not acquire jurisdiction of this action against the Dunhams though the defendant Hoysradt resided or was summoned within the limits of that county. Eor this reason we think the order of the judge of the district eorirt of. Douglas county dissolving the injunction, as it then stood, was not erroneous.
II. It seems to us proper to express an opinion upon one other question presented and argued by counsel, in order if possible to prevent further litigation between these parties. Whether the ancient rule, that a payment of a part is not a satisfaction of an entire demand, be in force or not, it seems to us that where the right of appeal from a judgment has not lapsed, and the debtor is in a condition and about to take such appeal, but at the instance of the creditor, and with money borrowed from third parties with the knowledge and at the request of the creditor, pays him a portion of the amount of the judgment under an agreement that it shall be in full, the entire judgment is satisfied.
We cannot close this opinion without reminding the parties, that to attain the highest success in the profession of law, good is of equal value with legal cunning, and that it is never †0 the credit of an able man that he has taken an unfair advantage of the lesser knowledge of another.
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The opinion of the court was delivered by
MORITZ, J.:
In this appeal, Bartlett Grain Company, L.P. (Bartlett), challenges an order of the Kansas Corporation Commission (KCC) finding the agency has authority to assess civil penalties against a motor carrier when that motor carrier knowingly hires third-party motor carriers who allegedly violate motor carrier safety laws.
Prior to oral argument, this court issued an order directing the parties to be prepared to address at oral argument why this case should not be dismissed for lack of jurisdiction due to the lack of a final agency decision. After reviewing the record and briefs and hearing oral argument, we conclude the action from which Bartlett appeals is a nonfinal agency action. Therefore, we dismiss this appeal for lack of jurisdiction.
Factual and Procedural Background
The KCC initiated this action by issuing a show cause order alleging Bartlett violated “Title 49 C.F.R. 390.13 (2003) as adopted by K.S.A. 2006 Supp. 66-1,129 and K.A.R. 82-4-3Í (2006)” by aiding and abetting unauthorized motor carriers. Specifically, the order alleged Bartlett solicited three for-hire motor carriers who violated motor carrier safety laws by, inter alia, operating farm-registered vehicles in interstate commerce, operating the vehicles over the gross weight allowed in Kansas, lacking a United States Department of Transportation number, lacking medical ex aminer’s certifications, lacking commercial driver’s licenses, and failing to comply with Unified Carrier Registration Agreement requirements. The order further alleged that each violation was intentional and could subject Bartlett to a fine of up to $5,000 per violation.
Bartlett answered the show cause order, contesting the KCC’s jurisdiction over it with respect to this matter and denying the alleged violations. At a prehearing conference, Bartlett conceded that it is a motor carrier and, as such, is subject to KCC jurisdiction on some matters. But Bartlett contended the KCC lacked jurisdiction over it with respect to its hiring of third-party motor carriers. Because the original show cause order asserted jurisdiction over Bartlett, Bartlett moved for reconsideration of that finding. Upon reconsideration, the KCC found it had authority and jurisdiction over Bartlett to proceed.
Before seeking review in district court, Bartlett again sought reconsideration of the KCC’s jurisdictional decision. Bartlett reiterated its position that in allegedly knowingly soliciting unauthorized third-party motor carriers to haul grain it did not act as a motor carrier and, consequently it was not subject to the KCC’s jurisdiction for such actions. After the KCC denied Bartlett’s motion, Bartlett sought judicial review in district court, reciting that jurisdiction was proper under K.S.A. 77-609(a).
In a memorandum decision affirming the agency’s ruling, the district court based its jurisdiction to review the agency’s jurisdictional decision on the parties’ agreement that “Administrative Remedies have been exhausted and the matter is filed for Judicial Review under K.S.A. 77-609(a).” On the merits of the jurisdictional issue, the district court concluded the KCC had “jurisdiction to proceed with civil penalties under ‘aiding and abetting’ as the facts may justify.”
After Bartlett filed an appeal of the district court’s decision in the Court of Appeals, the KCC stayed the ongoing agency proceedings pending judicial review. We transferred the case to this court on our own motion pursuant to K.S.A. 20-3018(c).
Analysis
The KCC limited its ruling below solely to the issue of whether the agency had jurisdiction over Bartlett to address the violations alleged in the KCC’s initial show cause order. At no time in the administrative proceeding did the agency address the substantive allegations contained in the order. Therefore, before considering the merits of the jurisdictional issue presented to the agency, we must first address the issue raised sua sponte by this court prior to oral argument — i.e., was the agency’s order finding it had jurisdiction over the substantive violations alleged in the show cause order a final agency action subject to judicial review under K.S.A. 77-607(a)?
Whether jurisdiction exists is a question of law over which we exercise unlimited review. Shipe v. Public Wholesale Water Supply Dist. No. 25, 289 Kan. 160, 165, 210 P.3d 105 (2009). We have a duty to question jurisdiction on our own initiative. When the record discloses a lack of jurisdiction, we are obligated to dismiss the appeal. State v. Gill, 287 Kan. 289, 294, 196 P.3d 369 (2008).
As noted, the district court did not independently consider its jurisdiction to review the agency’s action in this case. Rather, it appears the district court accepted the parties’ agreement that Bartlett’s administrative remedies had been exhausted and the jurisdictional issue was ripe for judicial review.
However, we cannot so easily accept the parties’ stipulation to jurisdiction. Subject to certain exceptions, we have jurisdiction to entertain an appeal only if the appeal is taken in the manner prescribed by statute. Harsch v. Miller, 288 Kan. 280, 287, 200 P.3d 467 (2009) (the right to appeal is entirely statutory and is not contained in the United States or Kansas Constitutions). Significantly, parties cannot confer subject matter jurisdiction by consent, waiver, or estoppel, and a failure to object to the court’s jurisdiction does not invest the court with the requisite subject matter jurisdiction. Padron v. Lopez, 289 Kan. 1089, 1106, 220 P.3d 345 (2009). Further, if a district court lacks jurisdiction to enter an order, we do not acquire jurisdiction over the subject matter on appeal. Friedman v. Kansas State Bd. of Healing Arts, 287 Kan. 749, 752, 199 P.3d 781 (2009).
Instead, if we have jurisdiction to hear this appeal, it must emanate from the Kansas Judicial Review Act (KJRA). K.S.A. 66-118a(b); K.S.A. 66-118c; K.S.A. 2010 Supp. 77-603(a). That Act governs actions by the KCC, other than those arising from a rate hearing. K.S.A. 66-118a(b).
Under K.S.Á. 77-607(a), a person is entitled to judicial review of a final agency action if the person otherwise qualifies under the KJRA regarding standing, exhaustion of administrative remedies, and the time for filing the petition for judicial review. A “ ‘final agency action ” is “the whole or a part of any agency action other than nonfinal agency action.” K.S.A. 77-607(b)(l). A “ ‘nonfinal agency action’ ” is “the whole or a part of an agency determination, investigation, proceeding, hearing, conference or other process that the agency intends or is reasonably believed to intend to be prehminary, preparatory, procedural or intermediate with regard to subsequent agency action of that agency or another agency.” K.S.A. 77-607(b)(2).
Curiously, in the KCC’s order staying the proceedings before the agency pending judicial review, the KCC noted it retained “jurisdiction over the subject matter and parties for the purpose of entering such further orders as it may deem necessary.” Thus, the KCC clearly indicated its intent to retain jurisdiction and anticipated entering further orders in this matter. Nevertheless, inexplicably, in that same order the agency stayed the action pending determination of this appeal.
Regardless of the inconsistent language utilized in the agency’s order, the agency conceded at oral argument that as of that date, it had not considered the substantive violations alleged in the KCC’s original show cause order. Rather, the agency stayed the administrative action pending this court’s ruling on the jurisdictional issue challenged by Bartlett in this appeal. If this court rejects Bartlett’s challenge, as the agency urges us to do, the agency would then proceed to consider the substantive violations alleged in the initial show cause order. As such, it seems apparent that the KCC intended or reasonably believed its jurisdictional ruling “to be preliminary, preparatory, procedural or intermediate with re gard to subsequent agency action of that agency or another agency.” See K.S.A. 77-607(b)(2).
Nevertheless, both parties suggested in response to questioning at oral argument that this court has jurisdiction to review the agency’s jurisdictional ruling. Essentially, the paxties suggest that Bartlett exhausted its administrative remedies with respect to the jurisdictional issue, thereby rendering the agency’s decision on that issue final for purposes of judicial review.
We rejected a similar challenge in Friedman, 287 Kan. at 754-55. There, the Board of Healing Arts (Board) initiated a disciplinary proceeding against Friedman, a Kansas medical licensee. Friedman moved to dismiss the action, arguing that because his medical license had expired at the time the Board initiated the disciplinary action, the Board lacked subject matter jurisdiction over his license. After an administrative law judge (ALJ) denied Friedman’s motion, Friedman petitioned for judicial review in district court. The distxict court dismissed Friedman’s petition for failure to exhaust administrative remedies.
On appeal, this court noted the ALJ’s order on jurisdiction contained information on future proceedings and did “not purport to make any substantive determination of the disciplinary complaint.” 287 Kan. at 752-53. However, unlike the appellant here, Friedman apparently recognized the interlocutory nature of his appeal and sought application of K.S.A. 77-608. That statute permits review of a nonfinal agency action under certain limited circumstances:
“A person is entitled to interlocutory review of nonfinal agency action only if: “(a) It appears likely that the person will qualify under K.S.A. 77-607 for judicial review of the related final agency action; and
“(b) postponement of judicial review would result in an inadequate remedy or irreparable harm disproportionate to the public benefit derived from postponement.” (Emphasis added.) K.S.A. 77-608.
We rejected Friedman’s suggestion that postponement of judicial review would result in an inadequate remedy, noting “Friedman describes no harm that he has suffered other than the normal and usual inconvenience associated with such proceedings.” 287 Kan. at 754. We concluded that because Friedman failed to make the showing required by K.S.A. 77-608(b), he could not establish his entitlement to interlocutory review and the district court lacked jurisdiction to consider the merits of the action. 287 Kan. at 754-55. In so ruling, we pointed out that this court has “specifically rejected the notion that a party may circumvent the KJRA’s exhaustion requirement by claiming that an issue of statutory construction may be more authoritatively determined by the district court.” 287 Kan. at 754 (citing Dean v. State, 250 Kan. 417, 422-23, 826 P.2d 1372, cert. denied 504 U.S. 973 [1992]).
The procedural similarities between this case and Friedman are strong. Here, as in Friedman, Bartlett challenged the agency’s subject matter jurisdiction of the underlying action, the agency ruled it had subject matter jurisdiction, and Bartlett then sought judicial review of the agency’s jurisdictional determination. As in Friedman, the agency had not yet considered the underlying substantive allegations at the time the appeal of the jurisdictional issue was filed. Finally, as in Friedman, the agency’s jurisdictional determination was preliminary or preparatory to determining whether Bartlett violated motor carrier laws as alleged in the KCC’s show cause order.
But because neither party here recognized the inherently interlocutory nature of this proceeding or sought interlocutory review pursuant to K.S.A. 77-608(b), the procedural posture of this case presents a more compelling basis than did Friedman for concluding the appeal is interlocutory and nonfinal. In responding to this issue at oral argument, the KCC’s counsel urged us to interpret the agency’s order staying this action as an implied finding that postponement of judicial review would result in an inadequate remedy or irreparable harm disproportionate to the public benefit derived from postponement. But we cannot make that unprecedented leap on behalf of the appellee, particularly when the appellant’s counsel conceded at oral argument that the circumstances specified in K.S.A. 77-608 were neither argued nor present here.
Thus, we conclude Bartlett seeks interlocutory review of a non-final agency action without estabhshing its entitlement to do so under K.S.A. 77-608. Because the district court lacked jurisdiction, this court did not acquire jurisdiction over the subject matter on appeal. The appeal is dismissed. | [
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The opinion of the court was delivered by
Brewer, J.:
Defendants in error brought an action of replevin to recover of plaintiff in error the possession of certain cattle. They obtained judgment, to reverse which this action is brought. They claimed title by virtue of a chattel mortgage, and as in our judgment the case hinges upon that instrument, we shall forbear any discussion of the many other questions presented by counsel in their briefs.
The bill of exceptions states that “it was proved” that these cattle were the property of the “Mutual Land Emigration and Cooperative Colonization Company,” of England; that Edward Granger Smith was the agent of, and a stockholder in, said company, and as such agent had the possession of these cattle. The note, to secure which the chattel mortgage to defendants in error was given, was upon the face of it an individual obligation of said Smith. There is nothing in the testimony which tends to show that the debt evidenced by this note was in point of fact a liability of the company. The mortgage is as follows: “ This indenture made * * * between E. G. Smith, agent -of English Colony in the county of Nemaha, * * * witnesseth: That the said party of the first part, in consideration * * * to him duly paid, has sold * * * with all the title and interest of the said party of the first pai*t therein. This grant is intended as a mortgage to secure * * * a certain note this day executed and delivered by the said E. G. Smith, * * *; the. overplus, if any there be, shall be paid * * * to the said E. G. Smith, his heirs, or assigns.” The mortgage was signed, “Edward Granger Smith.”
It does not appear from the testimony that defendants in error were ignorant of the true owners; that Smith represented himself to be the real owner; nor that he had, as such agent, any power to sell, mortgage, or in any way dispose of the cattle. . The defendants in error never had possession of the property. Under these circumstances we think no title or right of possession is shown in them. The property belonged to the company. No conveyance is shown from it; none that purports to be executed by it; none by any one authorized to mortgage its property. They claim the right of possession by virtue of a chattel mortgage executed by an individual not the owner, having, as appears, no right to convey, and attempting to secure an individual debt by a mortgage of the property of his principal. There is no presumption in favor of the authority of the agent. The party claiming title by virtue of his acts must prove his authority.
A question arose on the trial also, as to the validity of a sale made by Smith to 'W'olfiey of the property in question. Said sale was made before tbe mortgage given to defendants in error, but it was unaccompanied by a delivery of possession. Upon this the court charged as follows: “That if they find from the evidence that the plaintiffs (Rising & Son,) acquired their lien on the cattle in controversy by contract with E. Gr. Smith on the 9th day of August, before the cattle had been delivered to defendant on his alleged contract of purchase, and without any knowledge of such transfer, they will find for plaintiffs.”
Here also we think was error. One of the most honest controversies in the law has been as to the effect which the retention of personal property by the vendor, after sale, had upon such sale. In this State the rule is settled by statute. .Grenl. Statutes, p. 501, § 3: “ Every sale or conveyance of personal property, unaccompanied by an actual and continued change of possession, shall be deemed to be void as against purchasers without notice, and existing or subsequent creditors, until it is shown that such sale was made in good faith and upon sufficient consideration.” In this case it appears from the bill of exceptions that “ it was proven” that Wolfley paid $123 on such purchase, which was a fair price for the cattle. There is abundance of testimony in the ease to make the question of good faith one for the jury to pass upon, and which ought not to have been taken from them by the court, as is done by this instruction. And if it appears that a sale is made in good faith, and upon sufficient consideration, though unaccompanied by a change of possession, the mere fact that a subsequent purchaser is ignorant of the sale will not avoid it in his favor. Of course, the sale made by Smith to plaintiff in error may convey no title to him, for the reasons indicated in the former part of this opinion; but that fact does not help the title of the defendants in error. Whether he have any right to the cattle or not, they must prove their right of possession before they can take them from him.
Eor these errors the judgment of the court below must be reversed, and a new trial awarded.
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The opinion of the court was delivered by
Rosen, J.:
Plaintiffs David A. Dissmeyer, Lester L. Lawson, and Terry L. Mitchell appeal from a district court order in a declaratory judgment action seeking to restrain enforcement and to clarify Kansas statutes regulating certain gaming machines.
During the 2007 legislative session, the Kansas Legislature passed and the Governor signed S.B. 66, the Kansas Expanded Lottery Act. The law authorized operation of certain gaming fácil ities, electronic gaming machines, and other lotteiy games at certain designated locations. The Act became effective April 19,2007. L. 2007, ch. 110. It is codified at K.S.A. 2010 Supp. 74-8733 etseq.
This court upheld the constitutionality of the Act as it related to ownership and operation of the lotteiy in State ex rel. Six v. Kansas Lottery, 286 Kan. 557, 186 P.3d 183 (2008). The present appeal challenges the portions of the Act defining “gray machines” and outlawing ownership of and public access to such machines.
On March 21,2008, the executive director of the Kansas Lottery sent a letter to all lotteiy retailers warning them that the Kansas Expanded Lottery Act prohibited participating retailers from owning or operating gray machines. The letter stated that the Kansas Racing and Gaming Commission had received many calls from across the state regarding gray machines. The letter reminded recipients that the Commission could not give them legal advice and informed them that the Commission was “working with law enforcement officials to determine which machines are illegal.”
The plaintiffs own or lease amusement game machines in Wyandotte County, Kansas. The pleadings do not reveal the precise nature of their machines. On October 16, 2008, they filed a declaratory judgment action seeking a determination that K.S.A. 2010 Supp. 74-8702 and K.S.A. 2010 Supp. 74-8761 are unconstitutional. They also sought injunctive relief barring enforcement of those statutes. The district court granted the State’s motion for summary judgment and found that the statutes were not unconstitutionally vague and that injunctive relief was therefore not appropriate. This court assumed jurisdiction over the plaintiffs’ appeal from that judgment under K.S.A. 2010 Supp. 60-2102(b)(2).
K.S.A. 2010 Supp. 74-8702(g) sets out the definition of gray machines. K.S.A. 2010 Supp. 74-8750(d) authorizes the executive director of the Kansas Lottery or the executive director of the Kansas Racing and Gaming Commission to confiscate any gray machine that does not comply with the requirements of the Expanded Lotteiy Act. K.S.A. 2010 Supp. 74-8761 makes it a severity level 9, nonperson felony to place in operation or to continue to have in place any gray machine for use by members of the public in any location in this state.
The plaintiffs challenge the constitutionality of this statutory scheme. The constitutionality of a statute is a question of law to which this court applies a de novo standard of review. Tolen v. State, 285 Kan. 672, 673, 176 P.3d 170 (2008).
The district court elected to incorporate the definition of “gambling device” from K.S.A. 21-4302(d). K.S.A. 21-4307 makes possession of a gambling device illegal. The district court concluded that incorporating the criminal code renders the Chapter 74 statutes sufficiently clear to pass constitutional muster.
K.S.A. 21-4302(d) defines gambling devices for purposes of the criminal code. It does not address gray machines, and the language that it employs in its definitions does not include linking devices to a lottery central computer system or simulating games played on authorized gaming machines. It also does not address the latent potential for turning a nongambling device into a gambling device. As a consequence, it does not clarify or limit the definition of gray machines contained in the Kansas Expanded Lottery Act.
The plaintiffs argue that there are only two ways of looking at the statutory provisions in question: Either the statute is plain and unambiguous on its face, and it therefore applies to such a broad array of devices that it can have no rational basis, or the statute is vague and ambiguous and, therefore, violates due process by fading to give parties notice that particular conduct is unlawful.
A statute that either requires or forbids the doing of an act in language that is so vague that persons of common intelligence must guess at its meaning and will differ as to its application violates the Fourteenth Amendment to the United States Constitution and is thus void for vagueness. State v. Richardson, 289 Kan. 118, 124, 209 P.3d 696 (2009). The statute at issue is not unconstitutionally vague, and it does not require incorporation of the definition of gambling devices contained in K.S.A. 21-4302(d).
K.S.A. 2010 Supp. 74-8702(g) defines gray machines as follows:
“ ‘Gray machine’ means any mechanical,' electro-mechanical or electronic device, capable of being used for gambling, that is: (1) Not authorized by the Kansas lottery, (2) not linked to a lottery central computer system, (3) available to the public for play or (4) capable of simulating a game played on an electronic gaming machine or any similar gambling game authorized pursuant to the Kansas expanded lottery act.”
The syntax of K.S.A. 2010 Supp. 74-8702(g) implies the word “or” between each of the four subcategories. See, e.g., State v. Bonner, 290 Kan. 290, Syl. ¶ 4, 227 P.3d 1 (2010); State v. Johnson, 289 Kan. 870, 879, 218 P.3d 46 (2009); State v. Wiegand, 275 Kan. 841, 845-46, 69 P.3d 627 (2003) (disjunctive “or” means that any listed alternative suffices to meet statutory conditions).
In order to constitute a gray machine, the device must therefore be mechanical, electro-mechanical, or electronic and capable of being used for gambling. It must also (1) not be authorized by the Kansas Lottery or (2) not be linked to a lottery central computer or (3) be available to the public for play or (4) be capable of simulating an authorized gambling game.
Although they are broad in scope, the statutory guidelines are susceptible to precise application to various devices. It is possible to examine any device, a home computer for example, and determine whether it fits the statutory definition. A home computer is a gray machine because it is electronic, it is capable of being used for gambling, and it is capable of simulating an authorized gambling game. In addition, it is not authorized by the Kansas Lottery, it is not linked to a lottery central computer, and it may be available to the public for play. The statute is not unconstitutionally vague.
We note as an aside that it is puzzling why the Kansas Racing and Gaming Commission would feel compelled to work with law enforcement officials “to determine which machines are illegal.” Unless the statute is vague, it should be clear to businesses and individuals of common intelligence which devices violate the law. Perhaps the Commission seeks to determine which machines are illegal because, under the statutory definition, few or no devices, tools, or machines are legal, a topic that we now subject to over-breadth analysis.
“ “While a vague statute leaves persons of common intelligence to guess at its meaning, an overbroad statute makes conduct punishable which under some circumstances is constitutionally protected. Almost every law is potentially applicable to constitutionally protected acts. A successful overbreadth challenge can thus be made only when (1) the protected activity is a significant part of the law’s target, and (2) there exists no satisfactory method of severing that law’s constitutional from its unconstitutional applications.’ [State v.] Whitesell, 270 Kan. 259, Syl. ¶ 6[, 13 P.3d 887 (2000)].” Smith v. Martens, 279 Kan. 242, 253, 106 P.3d 28 (2005).
Prior to enactment of the Expanded Lottery Act statutory scheme, it was the actual use to which a device was put that determined whether it was illegal.
“Our prior decisions have included within the scope of this definition [of gambling devices] a variety of machines and equipment. We have, however, consistently recognized a distinction between property which is illegal per se and therefore contraband, and property which is capable of innocent use but which may become contraband in a particular case because of the illegal use made of the property.” State v. Durst, 235 Kan. 62, 64, 678 P.2d 1126 (1984).
Pinball machines provide an example of the kind of equipment that the law formerly differentiated based on use. When success in playing pinball is rewarded with additional free games, the machines are not considered gambling devices under K.S.A. 21-4302(d), because the additional games are not considered something of “material value.” State v. One Bally Coney Island No. 21011 Gaming Table, 174 Kan. 757, 760, 258 P.2d 225 (1953). If, on the other hand, cash payoffs are made for the free games won by playing on the machines, the machines are considered illegal gambling devices. State v. Thirty-six Pinball Machines, 222 Kan. 416, 417-22, 565 P.2d 236 (1977); see also Grigsby v. Mitchum, 191 Kan. 293, 301, 380 P.2d 363 (1963), cert. denied 375 U.S. 966 (1964) (whether pinball machines are gambling devices depends on use and not on how labeled or designed).
Under the Kansas Extended Lottery Act, however, it is not the actual use to which a device is put; any device “capable of being used for gambling” is illegal. K.S.A. 2010 Supp. 74-8702(g) (Emphasis added.). Devices that were legal under the definition at K.S.A. 21-4302(d) may now be illegal because they are capable of being used for gambling.
A pinball machine in a bowling alley meets the statutory definition of a gray machine: it is an electro-mechanical device; it is capable of being used for gambling, and it is not authorized by the Kansas Lottery, it is not linked to a lottery central computer system, and it is available to the public for play. Any one of the latter three factors brings it within the purview of K.S.A. 2010 Supp. 74-8702(g).
The statutes that the plaintiffs challenge make it unlawful for retailers to have on their premises or for individuals to own or operate mechanical, electro-mechanical, or electronic machines that can be used for gambling purposes. Computers with Internet connections are electronic devices that can be used for on-line gambling. Computers without Internet connections are electronic devices that can be used to play games on which bets can be placed. The computer on which this opinion was drafted is a gray machine because it is electronic, it is capable of being used for gambling, and it is not linked to a lotteiy central computer system. Telephones can be used for making or placing bets. Radios and televisions are electronic devices that can be used to listen to and watch sporting events with consequent gambling applications. Automobiles can be raced and used in other ways that may be subject to gambling. Both Chutes and Ladders and Twister children s games use spinners, which are mechanical devices and which can, of course, be used for gambling. The statutes make it a criminal act to have any of those devices in a place for public use, and they authorize the executive director to confiscate any of those devices even if they are hidden away in the basement closet of a citizen’s home.
In its brief to this court, the State explains that a device that is capable of being used for gambling is “a device that is capable of being used to make a bet.” It is not only computers, televisions, radios, and telephones that can be used for making bets. By its definition, the word “mechanical” applies to the operation of machines or tools or relates to manual operations. Webster’s Ninth New Collegiate Dictionary 737 (1991). So-called “bar bets” can use virtually any tool or device, including doors, bottle openers, and cigarette lighters. The definition that the State proposes is remarkably expansive, including virtually all objects used in day-to-day living. The effect of the statute is to ban practically every tool and mechanical device.
The State argues that the plaintiffs assert no constitutional right that is threatened and that making it illegal to provide the public with access to virtually any tool or device is within the State’s constitutional authority. This is counterintuitive.
An overbroad criminal statute makes conduct punishable which under some circumstances is constitutionally protected from criminal sanctions. State v. Bailey, 251 Kan. 156, Syl. ¶ 10, 834 P.2d 342 (1992). The United States Constitution is designed to maximize individual freedoms within a framework of ordered liberty, and statutory limitations on those freedoms are examined for substantive authority and content. Kolender v. Lawson, 461 U.S. 352, 357, 103 S. Ct. 1855, 75 L. Ed. 2d 903 (1983). The Fifth Amendment to the United States Constitution protects individuals from government action that appropriates their property without due process and without compensation. See, e.g., State ex rel. Stephan v. Smith, 242 Kan. 336, 361-70, 747 P.2d 816 (1987) (compelling attorneys to provide uncompensated legal representation is unconstitutional taking of property). In State v. McAffry, 263 Kan. 521, 949 P.2d 1137 (1997), this court found a statute unconstitutionally overbroad that prohibited shining an artificial light on animals while in possession of any implement that could kill animals, because it could be read as a prohibition on protecting one’s cattle from coyotes. See also City of Junction City v. Mevis, 226 Kan. 526, 601 P.2d 1145 (1979) (city ordinance making it a crime for anyone within city limits to carry any firearm overbroad because it made no exception for transportation of firearm from place of purchase or repair or between a place of business and home).
K.S.A. 2010 Supp. 74-8750(d) allows the executive director of the Kansas Lottery to confiscate any device that 74-8702(g) defines as a gray machine. This statute, as it is currently drafted, essentially deprives citizens and businesses in Kansas of their fundamental right to own property.
Other Kansas statutes prohibit the possession or facilitation of using actual gambling devices. K.S.A. 21-4303 makes gambling a class B nonperson misdemeanor. K.S.A. 21-4304 makes commercial gambling a level 8, nonperson felony. K.S.A. 21-4305 makes permitting premises to be used for gambling purposes a class B nonperson misdemeanor. K.S.A. 21-4307 makes possession of a gambling device a class B nonperson misdemeanor, and K.S.A. 21- 4308 makes installing communication facilities for gamblers a level 8, nonperson felony.
It is a peculiarity of the Kansas statutoiy scheme that maintaining a pinball machine or a computer, devices that might be used for gambling, is now a level 9, nonperson felony, while possessing a slot machine that is actually used for gambling is a class B nonperson misdemeanor. This suggests that no rational basis exists for the sweeping definition of gray machines that the legislature has adopted.
We recognize that the overbreadth doctrine “should be employed sparingly and only as a last resort.” Martens, 279 Kan. at 253. We nevertheless find that a law that makes it unlawful to possess almost any kind of tool or machine and that allows the State to confiscate almost any personal property, regardless of its actual use, is overbroad and unconstitutional. We therefore reverse the district court and hold that K.S.A. 2010 Supp. 74-8702(g), defining gray machines, in combination with its enforcement provisions, K.S.A. 2010 Supp. 74-8750(d) and K.S.A. 2010 Supp. 74-8761, are unconstitutional as they relate to gray machines.
Biles, J., not participating.
R. Wayne Lampson and Richard M. Smith, District Judges, assigned. | [
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The opinion of the court was delivered by
Yalenunb, J.:
There are twenty-two assignments of error in this case, but in our opinion it is not necessary to consider more than one of them. In passing the other assignments we will say however, but without deciding the questions involved therein, that we have not discovered any error except such as we shall hereafter mention.
The facts in this case so far as they affect the question which we propose to discuss seem to be substantially as follows: On the 8th of September, 1865, William H. Coolidge leased to Thomas R. Clark lot 14, Block 76, of Leavenworth City, for five years, and Clark was to pay all taxes and assessments thereon for that time. During that time certain sujjposed street assessments which were void were made against said lot. Coolidge and Olai'k had divers conversations concerning these assessments. Coolidge showed some papers to Clark, which Coolidge claimed stated the amount of said assessment. Clark at one time said the amount was too great, but he never denied the validity of the assessment. He always said he would pay it. At one time however he said he had met with a severe loss and had no money, and could not pay it. It is not shown whether either Coolidge or Clark knew anything of the invalidity of said assessment. Nor is it shown that Clark pretended to know anything about it, or that he had any better means of knowing it than Coolidge had. Afterwards Coolidge paid said assessment, or rather he purchased the sale certificate of the assessment. He never however told Clark that he would pay it, or that he had any intention of paying it; and Clark never requested him or any one else to do so. It does not appear from the record that Clark ever made any effort to pay it except that Coolidge testified that Clark said in one of his conversations “ that he (Clark) had tried to pay it once but could not do it; he and the contractor could not agree; that the amount was not proper.” Coolidge also testified that “ He (Clark) led me to believe that he would pay it, but failing, I was led to believe he would not pay it.” So Coolidge paid the assessment himself, and then brought this action to recover the amount of the same from Clark. The case was tried before a jury, and the court among other things instructed the jury as follows: v
“The assessment on lot 11 in block 76 for improving Shawnee and Seventh streets was void because of irregularities in proceedings of the city prior thereto.” “ But if the testimony shows that the plaintiff called upon the defendant after the lot had been sold and a certificate of sale issued, and showed him the amount thereof, and requested the defendant to pay the assessments or redeem the lot from such sale, and the defendant then admitted the assessments to be regular, and the sale valid, and promised to pay the assessments or redeem the lot, and did not do so within a reasonable time, and the plaintiff upon the faith of such admission and promise, paid the assessments or purchased the sale certificate and became the owner thereof, he is entitled to recover in this action.
“ That the record and papers read in evidence by the plaintiff show the alleged assessments for improving Shawnee street to be void.” “ The record and papers read in evidence by the plaintiff show the alleged assessment for improving Seventh street to be void.”
We think the court below erred in giving the foregoing instruction. In this court it must be assumed as legally established that said assessments were void, though from the record, aside from the foregoing instruction of the court, we cannot tell whether they were void or not. If said assessments were void, Clark was certainly not liable to pay the assessments against said lot. It will certainly not be claimed that when Clark leased said lot he agreed to pay any assessment except sxich as was valid, or such as could be legally enforced either against Ooolidge or against the lot itself. And if the assessment was void, why not allow Clark to show it, and have the benefit of that fact? Here is where we think the court erred. It is a general rule of both law and equity, that a party may always plead and prove and rely upon the truth of any transaction in the determination of his lights, unless he would be committing a fraud upon the rights of the adverse party by doing so. Patterson v. Lytle, 11 Penn. St., 53, 55, et seq.; Hill v. Epley, 31 Penn. St., 331, 333, et seq.; Woods v. Wilson, 37 Penn. St., 379.
But it is claimed that Clark by his admissions to Ooolidge is estopped from setting up and proving the truth. Now it will be admitted whenever a party by some act or admission of his intentionally causes another to do something which this other person would not otherwise have done, such a party is generally estopped from showing that his act or admission was false. Or, as it is more generally, probably more properly, expressed, “A party will be concluded from denying his own acts or admissions, which were expressly designed to influence the conduct of another, and did so influence it, and where such denial will operate to the injury of another.” 49 Maine, 153, and cases there cited.
As a general rule estoppels mpais can apply only in the following cases:
1. -Where the party doing the act or making the admission knows at the time the truth of the matter about which he acting or making admissions, or pretends that he knows the same, or has better means of knowing the same than the other party.” 49 Maine, 149, 153; 20 Conn., 98, 104; 5 Metc., (Mass.,) 479, 484; 31 Penn. St., 331, 333, et seq.; 37 Penn. St., 379, 384.
2. -Where the other party does not Imow the truth of the same. 31 Penn. St., 331, 333; 37 Penn. St., 379, 384; 11 Penn. St., 53, 55.
3. -Where the act or admission is expressly designed to influence the conduct of the other party. 49 Maine, 149, 153; 8 Barb., 102, 108.
4. -Where the other party relies upon and is influenced by such acts or admissions. 8 Barb., 102, 108; 20 Conn., 98, 104; and authorities heretofore cited. (Also upon this point, and upon all the foregoing points, see the numerous authorities cited in the briefs of counsel.)
Now from the record in this case Clark was clearly not estopped from showing the truth of this transaction. He never consented or agreed that Coolidge should pay said assessment. He did not Imow, or pretend to Imow anything concerning the validity of the same. From the evidence it it would seem that Coolidge knew more about it than Clark, and that Clark obtained his knowledge from Coolidge. Clark’s means of knowledge was no better than that of Coolidge. There is nothing in the evidence that tends to show that Coolidge did not know that said assessment was invalid, except the inference that might be drawn from the fact of his purchase of the certificates; and upon Coolidge rested the burden of proof. There is no evidence that tends to show that Clark intended to mislead or to influence Coolidge in the least, or to cause him to purchase the certificate of assessment; nor can it be claimed that what Clark said was in its own nature designed to influence Coolidge to purchase said certificate; and there is nothing tending to show that Coolidge relied upon what Clark said to him when he did purchase the said certificate.
The judgment of the court below will be reversed and a new trial ordered.
Kúngman, O. J., concurring.
Brewer, J., did not sit in the ease. | [
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The opinion of the court was delivered by
Luckert, J.:
Charles Jones appeals from the district court’s summary denial of his motion to correct an illegal sentence. Jones, who was 16 years of age in 1998 when he was charged with first-degree murder and aggravated burglary, argued in his motion that the district court did not have jurisdiction to sentence him as an adult because the State and the district court did not comply with statutory and constitutional requirements regarding notice to him and his parents. The district court, citing to K.S.A. 60-1507, summarily denied the motion. We affirm, concluding the motion conclusively shows Jones has not established a basis for determining his sentence is illegal.
Facts and Procedural Background
The district court certified Jones to stand trial as an adult on the charge of first-degree murder for the July 21,1998, shooting death of Robert Trzok. See State v. Jones, 273 Kan. 756, 757, 47 P.3d 783, cert. denied 537 U.S. 980 (2002) (Jones I). In February 2000, a jury convicted Jones of the charge, and the district court sentenced Jones to life in prison with no chance of parole for 25 years. Jones directly appealed, alleging (1) the State violated his due process rights by failing to provide his mother with notice of its motion to prosecute him as an adult as required by K.S.A. 1998 Supp. 38-1636(c) (repealed L. 2006, ch. 169, sec. 140); (2) the district court erred in waiving him to adult prosecution; (3) the district court improperly limited his cross-examination of his accomplice; and (4) the prosecutor committed misconduct during closing argument. This court rejected these arguments and affirmed Jones’ conviction and sentence. Jones I, 273 Kan. at 758.
Jones brought a second attack on the proceeding to certify him as an adult when, on July 9, 2004, he filed a pro se K.S.A. 60-1507 motion alleging ineffective assistance of counsel at his juvenile waiver hearing. The district court appointed counsel to represent Jones, conducted an evidentiary hearing on the K.S.A. 60-1507 motion, and denied Jones relief. On appeal, the Court of Appeals determined that counsel’s performance at the waiver hearing was deficient because counsel did not present any evidence to rebut the presumption in K.S.A. 1998 Supp. 38-1636(a)(2) that Jones should be tried as an adult. Jones v. State, No. 99,370, 2009 WL 863106, at *4 (Kan. App. 2009) (unpublished opinion), rev. denied 289 Kan. 1279 (2010) (Jones II). Nevertheless, the Court of Appeals ruled that Jones was not prejudiced by counsel’s performance because the factors weighing in favor of certifying Jones as an adult were so strong there was no reasonable probability that any evi dence defense counsel could have presented would have been successful. Jones II, 2009 WL 863106, at *4. In addition, “Jones claim [ed] that his due process rights under the United States Constitution were violated because he was not appointed counsel before signing the waiver of extradition and his parents were not notified of his detention even though he was a juvenile.” (Emphasis added.) Jones II, 2009 WL 863106, at *1. The Court of Appeals rejected Jones’ arguments, concluding that even if it accepted that there were irregularities in the proceedings, they did “not alter this court’s jurisdiction.” Jones II, 2009 WL 863106, at e2.
Approximately 3 months after the Court of Appeals’ decision denying him relief, Jones filed the motion to correct an illegal sentence that is the subject of this appeal. Jones mainly argued that the juvenile waiver proceedings were defective because: (1) The complaint in his case did not comply with K.S.A. 1998 Supp. 38-1622 (repealed L. 2006, ch. 169, sec. 140) because it did not contain his parents’ names and addresses and, thus, they were not provided with notice of the charges, Jones’ right to counsel, or the waiver hearing; (2) the State failed to comply with K.S.A. 38-1625(b) (Furse 1993) (repealed L. 2006, ch. 169, sec. 140) when it failed to serve a copy of the complaint on Jones and his parents at the detention hearing; and (3) the district court did not comply with In re Gault, 387 U.S. 1, 87 S. Ct. 1428, 18 L. Ed. 2d 527 (1967).
Without holding a hearing, the district court denied Jones’ motion in a letter decision, stating:
“Defendant’s issue of the sufficiency of the juvenile waiver proceeding was raised and denied on direct appeal and also in his action pursuant to K.S.A. 60-1507, which was appealed and affirmed in March of this year. Clearly, K.S.A. 60-1507 states: ‘The sentencing court shall not be required to entertain a second or successive motion for similar relief on behalf of the same prisoner.’ Defendant’s motion is therefore denied.”
Jones appealed, arguing the district court erred because (1) K.S.A. 60-1507 does not apply to his motion to correct an illegal sentence, which was filed pursuant to K.S.A. 22-3504, and (2) his motion is not a successive motion seeking similar relief because, although he has previously complained about the lack of notice to his parents in the juvenile proceedings, he has not specifically complained of a failure to comply with K.S.A. 1998 Supp. 38-1622 or K.S.A. 38-1625(b) (Furse 1993).
Summary Dismissal
In making his first argument that K.S.A. 60-1507 does not apply to his motion to correct an illegal sentence, which was filed pursuant to K.S.A. 22-3504, Jones fails to recognize that this court has directed district courts that are considering a motion to correct an illegal sentence filed more than 10 days after sentencing to conduct a prehminary review of the motion comparable to that conducted under the provisions of K.S.A. 60-1507. See, e.g., State v. Duke, 263 Kan. 193, 194-96, 946 P.2d 1375 (1997) (upholding summary dismissal of motion to correct illegal sentence, based on K.S.A. 60-1507 provision imposing duty on a district court to conduct a preliminary examination to determine if motion raises substantial issues of law or fact); State v. Nunn, 247 Kan. 576, 584-85, 802 P.2d 547 (1990) (upholding district court’s decision not to appoint counsel to represent movant on motion for new trial, based on K.S.A. 60-1507 provision conditioning appointment of counsel on finding substantial issues of law or fact are presented). Based on that preliminary review, the district court may dismiss a motion to correct an illegal sentence “ ‘without a hearing or appointment of counsel if the district court determines the motion, files, and records of the case conclusively show the defendant is not entitled to relief.’ ” State v. Howard, 287 Kan. 686, 690, 198 P.3d 146 (2008) (quoting State v. Hoge, 283 Kan. 219, 224, 150 P.3d 905 [2007]); accord State v. Penningon, 288 Kan. 599, 601, 205 P.3d 741 (2009).
Here, the district court summarily denied Jones’ motion. Under such circumstances, our review is de novo. Like the district court, we must determine whether Jones’ motion, records, and files conclusively show that he is entitled to no relief. See Howard, 287 Kan. at 691.
Not an Illegal Sentence
While the district court determined that the motion was successive, a point that Jones disputes, there is a more fundamental prob lem with Jones’ motion: K.S.A. 22-3504 is not an appropriate vehicle for addressing the issues that Jones has raised.
“K.S.A. 22-3504 only applies if a sentence is illegal. The question of whether a sentence is illegal is a question of law over which this court has unlimited review. An illegal sentence is a sentence imposed by a court without jurisdiction, a sentence which does not conform to the statutory provision, either in character or the term of the punishment authorized, or a sentence which is ambiguous with regard to the time and manner in which it is to be served.” State v. Deal, 286 Kan. 528, Syl. ¶ 1, 186 P.3d 735 (2008).
Jones has recognized the grounds for a motion to correct an illegal sentence are limited and has argued the district court lacked jurisdiction to convict and sentence him as an adult because of the State’s and district court’s failure to comply with various notice provisions that applied to the juvenile proceedings and the hearing regarding waiver of juvenile jurisdiction. The record substantiates the accuracy of Jones’ factual arguments: The complaint did not contain his parents’ names and addresses, and the State failed to serve a copy of the complaint on Jones’ parents at the detention hearing. Nevertheless, Jones’ argument still fails because these procedural defects did not deprive the district court of jurisdiction to impose a sentence.
Jones’ argument is essentially that (a) the failure to comply with the due process requirements of In re Gault, 387 U.S. 1, deprives a district court of jurisdiction, (b) tire State and district court failed to comply with In re Gault’s requirements, and (c) the district court, therefore, lacked jurisdiction. The problem with this argument is that In re Gault does not govern the detention hearing and other juvenile proceedings about which Jones complains. See Jones I, 273 Kan. at 764-67.
In Jones I, we explained that In re Gault addressed the due process requirements related to a juvenile hearing on the merits. Under the state procedure at issue in In re Gault, a determination on the merits was a determination as to “delinquency”; in Kansas, a determination on the merits is a determination whether the respondent is a juvenile offender. Jones’ juvenile proceedings had not reached that point and never reached that point because juvenile jurisdiction was waived and the final determination of the merits of the State’s complaint was reached in the criminal proceeding where Jones was prosecuted as an adult.
Consequently, we concluded in Jones I that In re Gault did not control the analysis. Rather, we noted the analysis was controlled by Kent v. United States, 383 U.S. 541, 86 S. Ct. 1045, 16 L. Ed. 2d 84 (1966), in which the United States Supreme Court discussed the due process requirements related to a proceeding to waive juvenile jurisdiction. See Jones I, 273 Kan. at 764-67. The Kent Court held the basic due process requirements of a waiver proceeding are a hearing, effective assistance of counsel, and a statement of the basis for the waiver. Kent, 383 U.S. at 557, 561-62.
In the Jones I decision, we then turned to State v. Muhammad, 237 Kan. 850, 703 P.2d 835 (1985), which had synthesized Kent and In re Gault. In Muhammad, the juvenile, who had not appeared at the waiver hearing because she had been arrested the morning of the hearing as the result of mistaken identity, argued she had been deprived of due process when the district court waived juvenile jurisdiction without her being present. This court rejected Muhammad’s due process argument because a waiver hearing is not adjudicatory in nature. Muhammad, 237 Kan. at 856. Although not discussed in the opinion, Muhammad could not have been served with a copy of the complaint at a hearing she did not attend and, like Jones, she was deprived of the notice required by Kansas statute. Yet, the Muhammad court found the district court did not err in proceeding with the waiver hearing.
Relying on the Muhammad holding, in Jones I we first noted that “the hearing was not adjudicatory but dispositional. While a substantial right was involved, the hearing did not result in the determination of guilt or confinement.” Jones I, 273 Kan. at 766. We then held: “As the discussion of Gault in Muhammad shows, Jones was afforded the necessary protections of due process when he was present and represented by counsel at all critical stages of the proceedings.” Jones I, 273 Kan. at 767.
The State argues this analysis disposes of all aspects of Jones’ due process argument relating to defects in the juvenile proceeding and the waiver of juvenile jurisdiction. Jones responds by arguing that In re Gault requires a different outcome than we reached in Jones I. Obviously, this argument ignores the preclusive effect of our holding in Jones I. It also fails to recognize the distinction between the holding in In re Gault and the holding in Kent as recognized in both Muhammad and Jones I. In sum, Jones’ argument lacks legal merit because In re Gault does not apply to the stage of the proceedings about which Jones complains. Rather, Kent controls and defines Jones’ due process rights in the juvenile waiver proceeding.
Jones has not established a due process violation that would have deprived the district court of jurisdiction. Consequently, there is no basis for finding that he received an illegal sentence, and the district court did not err in denying Jones’ motion.
Affirmed.
Hill, J., assigned. | [
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The opinion of the court was delivered by
Kingman, C. J.:
The district court overruled a demurrer to the petition, and from that ruling plaintiffs in error bring the caseto this court. Erom the petition we learn these facts: That Lang returned a true and correct list of his personal property to the assessor, amounting to $1,185. The county board, without any notice to Lang, and without any testimony, and without any cause, increased the amount of the assessment from $1,185 to $8,000. The whole amount of his personal property was contained in the list furnished by him. The power to correct the assessment of personal property is found section 65 of the tax law, and this section requires notice to the party to be affected; and the board is not authorized to proceed without the notice. Their action in the premises was clearly invalid. Defendant, when he learned of the action of the board in December, moved the board to correct their error. Failing there, he paid the taxes he was justly chargeable with, and obtained an injunction to stop the collection of the illegal portion of the tax. This he was entitled to. Whatever diversity existed in the decisions as to the propriety of granting injunctions in such cases, the right to do so in this State is settled by our statute. Section 253 of the code of civil procedure is as follows: “ An injunction may be granted to enjoin the illegal levy of any tax, charge, or assessment, or the collection of amy illegal tax, charge, or assessment, or any proceeding to enforce the same.” Whatever doubt previously existed about the process of injunction as a remedy to prevent the collection of an illegal tax is removed by this section. It does not change the rights of the partiesit gives a new remedy to enforce the rights of the citizen. The petition shows the tax enjoined to have been illegal, and that warrants had been issued and put in the hands of the proper officers to enforce the collection of the same.
A point was made by the counsel for the plaintiffs in error that theré was no averment in the petition that Lang had any property out of which the taxes could have been made, and theref°re he was not entitled to an injunction. There are expressions in the petition sufficiently showing that he had property out of which the taxes could have been made; but any such averment was unnecessary. He stood charged with an unjust and illegal tax. He had under the statute a right to relieve himself of that charge, whether he had property or not. His right to the remedy did not depend upon the extent of his possessions.
The plaintiff below having shown that he was injured and the law having afforded him a definite remedy, it was right for the court to grant the relief as it was done in this case. The judgment is therefore affirmed.
Valentine, L, concurring.
Brewer, J., not sitting in the case. | [
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The opinion of the court was delivered by
Luckert, J.:
Defendant Yvonne Ward appeals her convictions for 14 felonies related to four separate cocaine sales. She argues the trial court erred in denying her motion for mistrial, which she made after witnesses for the prosecution identified two individuals who were sitting in the courtroom and wearing orange jail jumpsuits as people who were with Ward during one or more of the sales, and she challenges the sufficiency of the evidence. A panel of the Court of Appeals affirmed, State v. Ward, No. 99,549, 2009 WL 454947 (Kan. App. 2009) (unpublished opinion), and we granted review. Before us, Ward adds a new issue regarding whether the State proved that a school located within 1,000 feet of a laundromat where some of the drug sales occurred was used by a unified school district or an accredited nonpublic school. We decline to address this issue because it was not presented to or considered by the Court of Appeals and was not presented in the petition seeking review of the Court of Appeals’ decision. Therefore, the issue was abandoned. Addressing the two issues considered by the Court of Appeals, we affirm the district court and the Court of Appeals, concluding the trial court did not abuse its discretion in denying the motion for mistrial and the evidence was sufficient.
In our discussion of the motion for mistrial, we focus on the standard of review because the parties’ arguments and the Court of Appeals’ decision reveal potential inconsistencies in our past decisions and resulting confusion regarding the application of Kansas’ harmless error statutes, K.S.A. 60-261 and K.S.A. 60-2105, and Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705, reh. denied 386 U.S. 987 (1967), which applies when an error implicates a right guaranteed by the United States Constitution.
Facts and Procedural Background
Ward’s 14 felony convictions include two counts of the sale or delivery of cocaine within 1,000 feet of a school (K.S.A. 65-4161[d]; repealed and recodified at K.S.A. 2010 Supp. 21-36a05(a), (c); see L. 2009, ch. 32, secs. 5, 64); two counts of conspiracy to commit the sale or delivery of cocaine within 1,000 feet of a school (K.S.A. 65-4161[d]; K.S.A. 21-3302); two counts of the sale or delivery of cocaine (K.S.A. 65-4161); four counts of possession of cocaine without a drug tax stamp (K.S.A. 79-5204); and four counts of the unlawful use of a communication facility to arrange a drug transaction (K.S.A. 65-4141); repealed and recodified in 2009 at K.S.A. 2010 Supp. 21-36a07.
All of the counts arose when Ward allegedly sold crack cocaine to Candy Stinnett, who agreed to cooperate with Detective Jared Wagenseller of the Seward County Sheriff s Office. Stinnett’s cooperation resulted in her buying crack cocaine from Ward during controlled buys that occurred on January 11, Januaiy 25, January 31, and February 7, 2007. In exchange for Stinnett’s cooperation, the State agreed to dismiss multiple criminal charges that Stinnett faced.
Because Ward argues the evidence was insufficient to support her convictions, a detailed discussion of the evidence is required.
Trial Evidence
In describing the first controlled drug buy, Stinnett testified that on January 11, 2007, she was searched, fitted with a wire transmitter, carried documented funds from law enforcement, and went to a telephone booth at a particular laundromat located within 1,000 feet of Garfield School in Liberal, Kansas. She called Ward and “told her that I wanted 120,” meaning $120 worth of crack cocaine. Ward responded, “I’m on my way,” and Stinnett pulled her car to the side of the building and waited for Ward to arrive. A blue Suburban arrived shortly thereafter. A man later identified as Broderick West was driving, and Ward was sitting in the back seat behind West. Stinnett saw one or two other individuals in the vehicle, one of whom was later identified as Ward’s daughter, “Ms. Jackson.” Stinnett walked up to the passenger-side window and reached inside, holding the money in her hand. She testified that West took the money and handed it to Ward, who reached between the seats to pick up the crack cocaine. Ward then handed the drugs to Stinnett. Stinnett drove to her meeting location with law enforcement officers and gave the cocaine to Detective Wagenseller. Wagenseller testified that he was parked near the laundromat and recognized West and Ward. Stinnett subsequently identified Ward and Jackson in a photo lineup.
Stinnett also testified regarding the second controlled drug buy, which took place around January 25, 2007. She met again with law enforcement officers, was searched, was fitted with a wire transmitter, and went to the same laundromat to call Ward. This time Ward told Stinnett to come to Ward’s house. After getting permission from officers, Stinnett drove to Ward’s house, where she knocked on the door and was invited inside. Stinnett testified that, besides Ward, other people were in the house, including West and Jackson. Stinnett walked up to Ward, told her she “needed 80,” and gave Ward $80. Ward then handed Stinnett four rocks of crack cocaine. Afterward, Stinnett returned to the designated meeting location and turned over tire drugs to Detective Wagenseller.
As for the controlled drug buy on January 31, 2007, Stinnett gave similar testimony about the search process, being fitted for a wire transmitter, accepting $100 from law enforcement officers for purchasing drugs, going to the laundromat, and calling Ward to tell her she “needed 100.” Again, Ward told Stinnett to come to her house. As before, while officers waited in the vicinity of Ward’s house, Stinnett was invited inside. Stinnett testified that she heard Ward tell someone to “[l]et her in.” Stinnett walked up to Ward, who was sitting on the living room sofa, and gave her the $100. In return, Ward gave Stinnett five rocks of crack cocaine. Stinnett then met with officers and gave the drugs to Detective Wagenseller.
The last drug transaction between Stinnett and Ward occurred on February 7, 2007. Stinnett testified that, wearing a wire transmitter and carrying $80 provided by officers, she called Ward from the laundromat. This time Ward told Stinnett, “I’m on my way,” and met her around the side of the building. Ward, again, arrived in the blue Suburban. West was driving, and Ward sat in the passenger seat. Stinnett approached the passenger-side window. Stinnett described a “rock” sitting on the center console, off of which Ward cut four rocks of crack cocaine with a razor blade. Ward handed the four rocks to Stinnett. When the Suburban left, Detective Wagenseller recognized the occupants as West and Ward. He followed the Suburban to Ward’s residence before returning to the designated meeting place, where he met Stinnett who handed over the drugs.
After these controlled drug buys, Ward was arrested. The events surrounding the arrest and investigation were detailed at trial by several law enforcement officers. Detective Wagenseller’s trial testimony gave rise to the motion for mistrial that is the focus of an issue on appeal. The motion was made by defense counsel after Detective Wagenseller identified Ward’s associates, West and Jackson, by pointing them out while they sat in the courtroom. Both individuals were dressed in orange jail jumpsuits.
Detective Wagenseller identified West while explaining that Ward had been a passenger in a blue Suburban during the January 11, 2007, sale. When the detective was asked who was driving, the detective indicated it was West. The prosecutor then asked, “And is Mr. West in the courtroom today?” Wagenseller responded affirmatively and, when asked to point to West, stated, “He’s sitting in the back of the courtroom, wearing oranges.”
Later in Detective Wagenseller’s testimony he identified Jackson, who was also dressed in an orange jumpsuit. This identification occurred when the prosecutor asked Detective Wagenseller to explain a photo lineup he used to confirm Stinnett’s identification of Ward. The detective responded that he gave Stinnett a photo lineup of six unnamed females and asked Stinnett to identify Ward. Stinnett marked two photos, identifying one as Ward and the other as Jackson. The prosecutor’s next question was whether Jackson was in the courtroom; Wagenseller answered that she was and that she was “seated in the first row, the second individual wearing oranges, the smaller female.” (There were three individuals wearing jail clothing, but only two of them were identified by witnesses during the State’s case-in-chief.)
Both of these identifications occurred without immediate objection. A short time later, defense counsel objected outside the presence of the jury and asked for a mistrial, arguing that West and Jackson were not listed as witnesses and allowing them to remain in the courtroom in jail clothing after being associated with Ward would prejudice Ward. In response, the prosecutor explained that he wanted to show that Stinnett knew the individuals she was identifying, that West was identified as an alleged coconspirator in the case, and that the State was trying to preclude Ward from claiming that “some other dude did it.” The trial court denied the motion for mistrial, without making any finding or conclusion other than mentioning there was no evidence of prejudice.
In addition, the trial court allowed West and Jackson to remain in the courtroom, which led to another identification of West as an associate of Ward. This subsequent identification occurred when Stinnett identified West as the Suburban s driver during the January 11, 2007, sale; she pointed out that he was “in the orange suit sitting next to the gentleman in the gray shirt.” Then, after she testified he also drove the Suburban on February 7,2007, the prosecutor asked her to confirm that West was in the courtroom. She referred to West as “the only gentleman in the orange, sitting in the back of the courtroom.”
Based on this evidence and some additional evidence we will discuss as necessary, the jury convicted Ward on the multiple counts related to these cocaine sales.
Court of Appeals' Decision
Ward appealed to the Court of Appeals and argued the trial court erred in denying her motion for mistrial and the State’s evidence was insufficient to support the jury’s verdict.
Regarding Ward’s assertion that the trial court erred in failing to grant her motion for mistrial, the Court of Appeals, after finding no guidance on the issue of whether witnesses for the prosecution may identify individuals as associates of the defendant while those individuals are dressed in jail clothing and seated in the courtroom, stated:
“It seems elemental that to avoid potential prejudice, the State should be discouraged from needlessly associating defendants with individuals whose attire identifies them as inmates. Here, however, the district court accepted the State’s argument that the identification of West and Jackson served legitimate puiposes. The district court has a distinct advantage over this court in determining whether actions in the courtroom are sufficiently prejudicial to warrant a mistrial. See K.S.A. 22-3423.” Ward, 2009 WL 454947, at “5.
Additionally, the Court of Appeals held that even if it were to conclude that the trial court abused its discretion in denying Ward’s motion for mistrial, Ward failed to establish that her substantial rights were prejudiced by the error. Because of the substantial evidence supporting Ward’s convictions, the panel concluded that the witnesses’ identifications of West and Jackson as associates of Ward had little, if any, likelihood of changing the outcome of the trial. Ward, 2009 WL 454947, at *5.
Regarding the sufficiency of evidence issue, Ward made general assertions that (a) the only evidence linking Ward to the crimes was Stinnett’s testimony and that testimony lacked credibility and (b) the State failed to present audio, video, forensic, or other direct evidence connecting Ward to the crimes.
In rejecting these arguments, the Court of Appeals panel pointed out that the jury was made aware of Stinnett’s cooperation with law enforcement in exchange for the dismissal of charges against her, some of which were drug related, and Ward was asking the court to reweigh credibility. Ward, 2009 WL 454947, at °1. The court also noted there was more than sufficient evidence, both direct and circumstantial, from which “a reasonable jury could infer that Ward was connected to the drug transactions.” Ward, 2009 WL 454947, at *2.
Having rejected both of Ward’s arguments, the Court of Appeals affirmed. Ward filed a petition for review, which this court granted. Our jurisdiction arises from K.S.A. 20-3018(b) and K.S.A. 22-3602(e).
I. Motion for Mistrial
We will first consider Ward’s argument that the trial court erred in denying her motion for mistrial in which she alleged that allowing Detective Wagenseller to identify West and Jackson while they were sitting in the courtroom wearing orange jail jumpsuits was “highly prejudicial.” Ward did not renew this objection later in the trial when Stinnett made another identification of West and did not renew her motion for mistrial at that time or at the conclusion of all of the evidence. Hence, the trial court considered this mistrial issue mid-trial.
On appeal, Ward argues that the presence of her associates in distinctive jail clothing prejudiced her rights to a fair trial and to a presumption of innocence as guaranteed by both the United States Constitution and the Kansas Constitution. The State responds that Ward “made no showing of prejudice and it was not an abuse of discretion to deny the defendant’s motion for mistrial.”
A. Legal Principles/General Standard of Review
K.S.A. 22-3423(l)(c) permits a trial court to declare a mistrial because of “prejudicial conduct, in or outside the courtroom, which makes it impossible to proceed with the trial without injustice to the defendant or the prosecution.” Applying this statute, a trial court must engage in a two-step analysis. First, the trial court must decide if “ ‘there is some fundamental failure of the proceeding.’ ” State v. White, 284 Kan. 333, 343, 161 P.3d 208 (2007) (quoting State v. Lewis, 238 Kan. 94, 97, 708 P.2d 196 [1985]). If so, in the second step of the analysis, the trial court must assess whether it is possible to continue the trial without an “injustice.” This means, as we explained in White, that if there is prejudicial conduct, the trial court must determine if the damaging effect can be removed or mitigated by an admonition or instruction to the jury. If not, the trial court must determine whether the degree of prejudice results in an injustice and, if so, declare a mistrial. White, 284 Kan. at 343.
On appeal, the trial court’s decision denying a motion for mistrial is reviewed under an abuse of discretion standard. State v. Leaper, 291 Kan. 89, 96-97, 238 P.3d 266 (2010); State v. Foster, 290 Kan. 696, 718, 233 P.3d 265 (2010). Judicial discretion is abused if judicial action (1) is arbitrary, fanciful, or unreasonable, i.e., if no reasonable person would have taken the view adopted by the trial court; (2) is based on an error of law, i.e., if the discretion is guided by an erroneous legal conclusion; or (3) is based on an error of fact, i.e., if substantial competent evidence does not support a factual finding on which a prerequisite conclusion of law or the exercise of discretion is based. State v. Gonzalez, 290 Kan. 747, 755-56, 234 P.3d 1 (2010). In some cases, this three-part standard may narrow the broad discretion previously allowed when this court routinely applied only the no-reasonable-person-would-take-the- same-view standard. See, e.g., State v. Ransom, 288 Kan. 697, 715, 207 P.3d 208 (2009) (mistrial abuse of discretion standard “does not change even if legal error prompted consideration of a mistrial”; applying standard of whether any reasonable person would take the same view).
Applying the abuse of discretion standard of review, an appellate court focuses on the two questions analyzed by the trial court and asks: (1) Did the trial court abuse its discretion when deciding if there was a fundamental failure in the proceeding? and (2) Did the trial court abuse its discretion when deciding whether the conduct resulted in prejudice that could not be cured or mitigated through jury admonition or instruction, resulting in an injustice?
The rubric for analysis of the first question varies with the nature of the alleged misconduct, such as whether the allegation is based on the actions of a witness, the actions of a bystander, prosecutorial misconduct, or evidentiaiy error. See Leaper, 291 Kan. at 96-104 (conduct of witness in allegedly stealing an offered exhibit from witness stand); Foster, 290 Kan. at 718-21 (conduct of bystander in crying during victim’s testimony); White, 284 Kan. at 340-44 (prosecutorial misconduct in the form of inappropriate questioning and argument); State v. Tatum, 281 Kan. 1098, 1110, 135 P.3d 1088 (2006) (evidentiary error in admitting K.S.A. 60-455 evidence).
As to the second inquiry of whether the conduct “makes it impossible to proceed with the trial without injustice,” an appellate court’s vantage point may be broader than was that of the trial court. An appellate court will examine the entire record whereas, depending on the timing of the motion for mistrial, the trial court may have made the assessment before the trial’s end. See generally Leaper, 291 Kan. at 96-97; White, 284 Kan. at 343-44; see also K.S.A. 60-2105 (appellate harmless error statute, stating prejudice caused by error is assessed “upon the whole record”). Regarding the test against which the record is examined, the parties cite to cases that state the standard in three different ways. While at first glance it appears three different standards were applied in the various cases, we ultimately conclude that one standard has been ap plied, but that standard has been expressed in different ways. Some discussion of the cited cases is necessary to explain this conclusion.
1. The State’s Standard: Was the Outcome Affected?
The State cites State v. Rinck, 256 Kan. 848, 888 P.2d 845 (1995). In that case, this court concluded the trial court did not abuse its discretion in denying a motion for mistrial because the alleged misconduct — a witness’ statement that he ran into the defendant after the defendant had been released from prison— “could not have affected the result at trial.” Rinck, 256 Kan. at 854. Similar language has been used in recent decisions. For example, in State v. Dixon, 289 Kan. 46, 55, 209 P.3d 675 (2009), we indicated that an appellate court “should consider whether a limiting instruction was given, the degree of prejudice, and whether any evidence improperly admitted would affect the outcome of the trial.” (Emphasis added.)
Neither of these cases explains the origin of the “would affect the outcome of the trial” standard. Rather both cite to prior cases that, in turn, cite to prior cases. Tracking this judicial lineage eventually leads to previous versions of K.S.A. 60-261 as the source of the standard. (Rinck, 256 Kan. at 853, cites to State v. Mitchell, 220 Kan. 700, 703, 556 P.2d 874 [1976], and Dixon, 289 Kan. at 55, cites to State v. Sanders, 263 Kan. 317, 324, 949 P.2d 1084 [1997], which in turn cites to Mitchell. Mitchell cites to State v. Bly, 215 Kan. 168, 178, 523 P.2d 397 [1974], overruled on other grounds by State v. Mims, 220 Kan. 726, 556 P.2d 387 [1976], disapproved on other grounds by State v. Gunby, 282 Kan. 39, 144 P.3d 647 [2006], In Bly, 215 Kan. at 178, the court cites to the statutory source, K.S.A. 60-261. The 2010 amendments to K.S.A. 60-261 did not change the substance of the statute that was in effect in Bly or at the time of Ward’s trial; the amendments are stylistic only. See K.S.A. 2010 Supp. 60-261; Judicial Council Civil Code Advisory Committee, Report to Judicial Council regarding Proposed Amendments to the Kansas Code of Civil Procedure, Comments to K.S.A. 60-261, p. 159 [December 4, 2009]).
2. The Court of Appeals’ Standard: Were Substantial Rights AffectedP
By an equally circuitous route, we conclude the standard stated by the Court of Appeals also derives from K.S.A. 60-261. Yet, the wording of the standard was different; the Court of Appeals stated that Ward “failed to establish that her substantial rights were prejudiced by the error.” State v. Ward, No. 99,549, 2009 WL 454947, at *5 (Kan. App. 2009) (unpublished opinion) (citing State v. Albright, 283 Kan. 418, 425-26, 153 P.3d 497 [2007]). This wording has been used by this court in several recent decisions, including Leaper, 291 Kan. at 96-97, and State v. Angelo, 287 Kan. 262, 283-85, 197 P.3d 337 (2008).
Although Leaper, Angelo, Ward, and many other cases using this language do not cite to K.S.A. 2010 Supp. 60-261, the “substantial rights” wording echoes the language of that provision, which currently states:
“Unless justice requires otherwise, no error in admitting or excluding evidence, or any other error by the court or a party, is ground for granting a new trial, for setting aside a verdict or for vacating, modifying or otherwise disturbing a judgment or order. At every stage of the proceeding, the court must disregard all errors and defects that do not affect any party’s substantial rights.” (Emphasis added.) K.S.A. 2010 Supp. 60-261.
3. The Link Between the Standards
The text of K.S.A. 60-261 explains the source of the “substantial rights” language. Yet, the statute does not specify a test for determining whether a party’s substantial rights are affected. Despite the lack of statutory language, we have frequently stated that the test is whether the error affected the outcome of the trial. This test is widely accepted and has been used by the United States Supreme Court for more than a half-century and by this court for a century. E.g., Kotteakos v. United States, 328 U.S. 750, 764-65, 66 S. Ct. 1239, 90 L. Ed. 1557 (1946); Bly, 215 Kan. at 178; Smith v. Union Pacific Railroad Co., 214 Kan. 128, 132, 519 P.2d 1101 (1974); Saunders v. Railway Co., 86 Kan. 56, 62, 119 P. 552 (1911); see generally 2 Childress & Davis, Federal Standards of Review § 7.03 (4th ed. 2010).
At the federal level, the phrase “affect the substantial rights” was codified in 1919 at 28 U.S.C. § 391, which provided that appellate courts should decide cases based on the entire record of the case “without regard to technical errors, defects, or exceptions” that do not “affect the substantial rights of the parties.” See Kotteakos, 328 U.S. at 757. In Kotteakos, the United States Supreme Court noted that the phrase “affect the substantial rights” also had been incorporated in the harmless error rule, Rule 52(a) of the Federal Rules of Criminal Procedure, which the Court characterized as a “restatement of existing law.” Kotteakos, 328 U.S. at 757 n.9. The Court then concluded that an error “affected the defendant’s substantial rights” if it had a “substantial and injurious effect or influence in determining the jury’s verdict.” Kotteakos, 328 U.S. at 776.
Since Kotteakos, the United States Supreme Court has consistently reiterated that an error affected substantial rights when it had a prejudicial effect on the outcome of the proceeding. See United States v. Dominguez Benitez, 542 U.S. 74, 81, 124 S. Ct. 2333, 159 L. Ed. 2d 157 (2004) (the phrase “ ‘error that affects substantial rights’ ” means “error with a prejudicial affect on the outcome of a judicial proceeding”); United States v. Olano, 507 U.S. 725, 734, 113 S. Ct. 1770, 123 L. Ed. 2d 508 (1993) (The plain error rule of Fed. R. Crim. Proc. 52[b] requires showing that the error affected substantial rights; “[tjhis is the same language employed in Rule 52[a], and . . . means that the error must have been prejudicial: It must have affected the outcome of the . . . proceedings.”); United States v. Lane, 474 U.S. 438, 449, 106 S. Ct. 725, 88 L. Ed. 2d 814 (1986) (quoting Kotteakos, 328 U.S. at 776 and concluding that error involving misjoinder affected substantial rights requiring reversal “only if the misjoinder results in actual prejudice because it ‘had a substantial and injurious effect or influence in determining the jury’s verdict’ ”).
A similar history can be traced in Kansas cases. In 1911, this court discussed the version of K.S.A. 60-261 that was then in effect. The statute required the court to ignore “technical errors” and defined a reversible error as one that “prejudicially affected the substantial rights of the party complaining.” G.S. 1909, 95-6176 (Civ. Code § 581). The court explained that a court must
“disregard immaterial errors and rulings that do not appear to have influenced the verdict or impaired substantial rights. The ruling must be prejudicial as well as erroneous, and prejudice must affirmatively appear, or the error will be disregarded. Prejudice may be said to appear when the proceedings show that the court or jury was misled by the error, and that the verdict or judgment was probably affected to the injury of the complaining party.” Saunders, 86 Kan. at 62.
When the various statutory amendments that result in the current version of the harmless error statute, K.S.A. 2010 Supp. GO-261, are traced through this court’s case law, similar statements can be found in many cases. This history and the use of the “would affect the outcome of the trial” standard when examining if substantial rights were affected leads us to the conclusion that the Court of Appeals in this case was applying 60-261. This conclusion is reaffirmed if we follow the judicial lineage of the cases cited by the Court of Appeals; the line eventually ends with 60-261.
In addition to citing to K.S.A. 60-261, many of this court’s cases also cite the appellate harmless error statute, K.S.A. 60-2105, as the standard for an appellate court’s review of the trial court’s application of K.S.A. 60-261. See, e.g., State v. Rider, Edens & Lemons, 229 Kan. 394, 407, 625 P.2d 425 (1981); cf. Thompson v. General Finance Co, Inc, 205 Kan. 76, 101, 468 P.2d 269 (1970) (noting that there had been no motion for mistrial or showing of a basis for mistrial under K.S.A. 60-261 and K.S.A. 60-2105). The appellate harmless error statute, K.S.A. 60-2105, also uses the “substantial rights” standard, providing:
“The appellate court shall disregard all mere technical errors and irregularities which do not affirmatively appear to have prejudicially affected the substantial rights of the party complaining, where it appears upon the whole record that substantial justice has been done by the judgment or order of the trial court; and in any case pending before it, the court shall render such final judgment as it deems that justice requires, or direct such judgment to be rendered by the court from which the appeal was taken, without regard to technical errors and irregularities in the proceedings of the trial court.” (Emphasis added.)
Even if we did not have numerous cases relying on K.S.A. 60-261 and K.S.A. 60-2105 when assessing if a mistrial should be granted, the text of those provisions would lead us to conclude the statutes should be applied because the language clearly fits the task of evaluating a mistrial motion. For example, applying the statutory “substantial rights” standard to determine what “justice requires” under 60-261 is congruent with a trial court’s assessment of whether there was an “injustice,” as that term is used in K.S.A. 22-3423(l)(c), the criminal mistrial statute. Furthermore, applying 60-261 at the stage of the trial when a motion for mistrial is made is compatible with the plain language of 60-261 indicating the standard should be applied at “every stage of the proceeding.” K.S.A. 60-2105 can then be applied by an appellate court reviewing a trial court ruling.
4. Ward’s Federal Constitutional Harmless Error Standard: Can We Conclude Beyond a Reasonable Doubt that Substantial Rights Were Not Affected?
While this discussion reconciles the standards cited by the State and the Court of Appeals and reveals them to be one standard stated in two different ways, Ward cites to a third line of cases. These cases apply the federal constitutional harmless error standard that was first stated in Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 17 L. Ed. 2d 705, reh. denied 386 U.S. 987 (1967). The United States Supreme Court held that “before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt.” Chapman, 386 U.S. at 24. The Court explained that this means that the “beneficiary of [the] constitutional error . . . [must] prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.” Chapman, 386 U.S. at 24.
We have frequently applied Chapman when reviewing a trial court’s decision regarding a motion for mistrial if the underlying error implicated a right guaranteed by the United States Constitution or jointly by the United States Constitution and the Kansas Constitution. See, e.g., State v. Martinez, 288 Kan. 443, 450, 204 P.3d 601 (2009); Saucedo v. Winger, 252 Kan. 718, 732, 850 P.2d 908 (1993) (standard discussed in context of substantial rights); cf. Foster, 290 Kan. at 718-21 (although not citing Chapman, finding conduct was not of nature warranting use of constitutional harmless error standard when defendant’s father became emotional during trial); State v. Thompkins, 271 Kan. 324, 333-34, 21 P.3d 997 (2001) (rejecting application of Chapman to mistrial motion based on prosecution’s use of defendant’s post-Miranda statement for impeachment purposes). Unfortunately, in some of the cases cited by the parties and in many other cases, we have not discussed why Chapman does or does not apply.
For example, in one of the cases cited by Ward, State v. Hall, 220 Kan. 712, 556 P.2d 413 (1976), the court apparently applied Chapman, although that conclusion is not clear from reading the decision. In Hall, the defendant sought a mistrial because of the prejudicial impact of his appearing for a brief time before the jury in prison clothing, despite his request to appear in his own clothes. The court found this to be a fundamental failure in the proceeding and explained:
“There can he no question that a practice of requiring an accused to stand trial in distinctive prison clothing, such as that described in the present case, may result in an unfair trial and may deny the prisoner the presumption of innocence mandated by the Kansas [Constitution] Bill of Rights, § 10 and K.S.A. 21-3109. This practice, if it exists in Kansas, should be discontinued.
“. . . However, the appearance of an accused in prison garb at a trial or some portion thereof, does not in and of itself constitute reversible error. It must be shown that the accused was prejudiced by such appearance in that such appearance resulted in an unfair trial. [Citations omitted.]” Hall, 220 Kan. at 714-15.
After examining the record, the Hall court concluded a mistrial was not warranted. In reaching that conclusion, the court first rejected the view that “an appearance in prison garb per se results in an unfair trial.” Hall, 220 Kan. at 715. Additionally, the court concluded: ‘We can say beyond a reasonable doubt that the brief appearance of appellant in prison garb did not have [a] substantial effect upon the ultimate verdict. [Citation omitted.]” Hall, 220 Kan. at 715.
This last sentence is similar to the language in Chapman; at least it uses the Chapman benchmark of “beyond a reasonable doubt.” Yet, it muddles the standard by concluding the appearance in jail clothing did not have a “substantial effect upon the ultimate verdict.” (Emphasis added.) Hall, 220 Kan. at '715. Consequently, we cannot fit the statement from the case neatly into a Chapman pi geonhole. Nevertheless, even with this departure from the wording of Chapman, the Hall court cited to one of the first Kansas cases to apply Chapman, State v. Fleury, 203 Kan. 888, Syl. ¶ 2, 457 P.2d 44 (1969).
Similarly, in the other case cited by Ward, State v. Alexander, 240 Kan. 273, 729 P.2d 1126 (1986), the court appears to have applied the federal constitutional harmless error standard, without saying it was doing so. In Alexander, the issue was whether a mistrial was warranted because evidence had been admitted that showed the defendant was incarcerated. The court simply stated: “In applying the Kansas harmless error rule (K.S.A. 60-2105), a reviewing court must be able to declare the error had little, if any, likelihood of having changed the result of the trial and the court must be able to declare such a belief beyond a reasonable doubt.” Alexander, 240 Kan. at 276. By itself, this discussion would not suggest that a federal constitutional harmless error analysis, as defined in Chapman, was being applied. Yet, it apparently was because the Alexander court cited to State v. Johnson, 231 Kan. 151, 159, 643 P.2d 146 (1982), and the Johnson decision, in turn, cited to Chapman. By using the standard of whether the error had “little, if any, likelihood of changing the result of the trial,” the Alexander court continued a line of cases, beginning with Fleury, in which this court altered the language from Chapman while expressing its intent to apply Chapman.
Fleury, 203 Kan. 888, was decided approximately 2 years after the Chapman decision. In Fleury, the court first noted the Chapman holding that “ ‘before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt.’ [Citation omitted].” Fleury, 203 Kan. at 893 (quoting Chapman, 386 U.S. at 24). The Fleury court then compared this standard to Kansas’ harmless error rule, explaining:
“Our Kansas harmless-error rule has been incorporated in the statutory law of this state. (See K.S.A. 60-261 and K.S.A. 62-1718 [Corrick] [recodified at K.S.A. 60-2105].) Our harmless-error rule applies unless the error is of such a nature as to appear inconsistent with substantial justice. Our courts are directed to disregard any error or defect in the proceedings which does not affect the substantial rights of the parties.
“The federal harmless-error rule declared in Chapman requires an additional determination by the court that such error was harmless beyond a reasonable doubt in that it had little, if any, likelihood of having changed the result of the trial.” Fleury, 203 Kan. at 893.
Next, the court briefly reviewed the application of this additional determination by the courts of other states and by this court in the relatively short time between Chapman and Fleury. This discussion led the Fleury court to conclude:
‘We are convinced our harmless-error rule has a sound basis in the jurisprudence of this state, and when our rule is to be applied to a federal constitutional error our courts should apply the same in the light of what was said in Chapman. By this we mean a court in applying our harmless-error rule must be able to declare the federal constitutional error had little, if any, likelihood of having changed the result of the trial, and the court must be able to declare such a belief beyond a reasonable doubt.” (Emphasis added.) Fleury, 203 Kan. at 894.
The Fleury court did not further reconcile its statement that an error is harmless if it had “little, if any, likelihood” of having changed the result of the trial, with the “harmless beyond a reasonable doubt” language of the federal constitutional harmless error standard stated in Chapman. See Chapman, 386 U.S. at 24 (“[B]efore a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt.”).
Nevertheless, because the wording is different, periodically a question has arisen as to whether there is a difference between the standard Kansas applies and the Chapman standard. On each occasion when this court has addressed this question, we have always concluded the “little, if any, likelihood” standard is essentially the same standard as the one adopted in Chapman. For example, in State v. Kleypas, 272 Kan. 894, 1084, 40 P.3d 139 (2001), cert. denied 537 U.S. 834 (2002), we explained that, although the language is “somewhat different” from that used in Chapman, the “standard is essentially the same.” See also State v. Brown, 280 Kan. 65, 76, 118 P.3d 1273 (2005) (citing Kleypas for recognition that Kansas’ standard, although different from Chapman, was es sentially the same). Similarly, in State v. Cosby, 285 Kan. 230, 169 P.3d 1128 (2007), we reiterated that our use of “ little, if any, likelihood of changing the result of the trial’ ” is equivalent to Chapmans “ ‘willingness to declare a belief that it was harmless beyond a reasonable doubt.’ ” Cosby, 285 Kan. at 252. The basis for our repeated conclusion that there is no difference between the standards is explained, in part, by examining the source of the “little, if any, likelihood” phrase and discussing die analysis in Chapman in more detail.
The source of the “little, if any, likelihood” language is Chapman itself. However, the phrase is not found in the part of the opinion in which the United States Supreme Court established the federal constitutional harmless error standard. Instead, the phrase is in an earlier section of the opinion in which the Court considered whether a federal constitutional error can ever be harmless. Chapman, 386 U.S. at 21-22. The Court concluded that a federal constitutional error could be harmless and rejected the argument that all federal constitutional errors should require automatic reversal. In doing so, the Court noted that harmless error has been a longstanding feature of both federal law and the law of all 50 states. Harmless error rules, the Court found, “serve a veiy useful purpose insofar as they block setting aside convictions for small errors or defects that have little, if any, likelihood of having changed the result of the trial.” (Emphasis added.) Chapman, 386 U.S. at 22.
After holding that a federal constitutional error can be harmless, the Court considered the appropriate analysis that should be applied. It looked to its recent decision in Fahy v. Connecticut, 375 U.S. 85, 84 S. Ct. 229, 11 L. Ed. 2d 171 (1963), holding that the erroneous admission of unconstitutionally obtained evidence required reversal because there was “ ‘a reasonable possibility tire evidence complained of might have contributed to the conviction.’ ” Chapman, 386 U.S. at 23 (quoting Fahy, 375 U.S. at 86-87).
The Chapman Court then addressed the question of which party should have the burden of showing harmless error, presumably because Fahy was silent on the point:
“Certainly error, constitutional error, in illegally admitting highly prejudicial evidence or comments, casts on someone other than the person prejudiced by it a burden to show that it was harmless. It is for that reason that the original common-law harmless-error rule put the burden on the beneficiary of the error either to prove that there was no injury or to suffer a reversal of his erroneously obtained judgment.” Chapman, 386 U.S. at 24.
Integrating the burden of showing harmlessness with Fahy’s “reasonable possibility that the evidence might have contributed to the conviction” standard, the Chapman Court created the federal constitutional harmless error standard:
“There is litde, if any, difference between our statement in Fahy o. Connecticut about ‘whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction’ and requiring the beneficiary of a constitutional error to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained. We, therefore, do no more than adhere to the meaning of our Fahy case when we hold, as we now do, that before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt.” Chapman, 386 U.S. at 24.
While the United States Supreme Court concluded the standard in Fahy and Chapman had the same meaning, this court, in Cosby, noted the “ ‘little, if any, likelihood’ ” wording used by this court when applying the federal constitutional harmless error standard was different from that used in either of those cases. Even so, we concluded “unequivocally that neither [the Chapman nor Fleury] formulations differs substantively or functionally from Fahy’s standard.” Cosby, 285 Kan. at 252.
Our conclusion that there is no difference between phrasing the standard as “little, if any, likelihood” and “beyond a reasonable doubt” is validated by the United States Supreme Court’s decision in Neder v. United States, 527 U.S. 1, 119 S. Ct. 1827, 144 L. Ed. 2d 35 (1999). In Neder, the Court held that the federal constitutional harmless error standard asks: “Is it clear beyond a reasonable doubt that a rational jury would have [convicted the defendant] absent the error?” Neder, 527 U.S. at 18. This standard, the Court said, prevents setting aside convictions for small errors that have “ ‘little, if any, likelihood of having changed the result of the trial.’ ” Neder, 527 U.S. at 19. In other words, the phrase “little, if any, likelihood” states a level of certainty that is equivalent to “beyond a reasonable doubt.” See Chapman, 386 U.S. at 24 (the “ "reasonable possibility’ ” the error contributed to the verdict standard is the same as the ‘"beyond a reasonable doubt” the “error did not contribute to the verdict” standard).
This high level of certainty — beyond a reasonable doubt, reasonable possibility, or little, if any, likelihood — was intended to set a standard that protects rights guaranteed by the United States Constitution. Yet, in time, this court began to occasionally use the language regarding “little, if any, likelihood” of affecting a verdict when analyzing nonconstitutional errors as well. E.g., State v. Ricks, 257 Kan. 435, 440, 894 P.2d 191 (1995) (concluding limiting instruction regarding purposes for which jury could consider prior conflicts between defendant and homicide victim “had litde, if any, likelihood of changing the results of the trial, and any error therein is harmless.”). When stating the analysis applicable to nonconstitutional errors in this way, this court has usually failed to discuss the difference in the level of certainty — i.e., the standard of proof — or the burden of production to be applied in the consideration of nonconstitutional errors as compared to federal constitutional errors. (For a note on terminology, see Microsoft v. i4i Limited Partnership,_U.S__, 131 S.Ct. 2238, 2245 n.4, 180 L. Ed. 2d 131 (2011) (discussing “burden of proof’ and distinguishing “burden of persuasion” [“specifying which party loses if the evidence is balanced”], “burden of production” [specifying which party must come forward with evidence at various stages in the litigation], and “standard of proof’ [specifying"" "degree of certainty by which the factfinder’ ” or a reviewing court must be persuaded by the party bearing the burden of production].)
5. Level of Certainty
It is only the “little, if any, likelihood” language — in other words, the level of certainty that is imposed — in Ricks and numerous other nonconstitutional error cases that is difficult to reconcile with K.S.A. 60-261. The federal constitutional harmless error standard of Chapman and the Kansas harmless error statutes, K.S.A. 60-261 and K.S.A. 60-2105, are based on the same measuring point: whether the error affected substantial rights. As we have noted, in Kansas we have used the same substantial rights standard, measured by whether an error changed the result of the trial, regardless of whether we are applying K.S.A. 60-261 and K.S.A. 60-2105 or Chapman. This is consistent with the United States Supreme Court’s interpretation of the harmless error standard. As the Court made clear in United States v. Dominguez Benitez, 542 U.S. 74, 81, 124 S. Ct. 2333, 159 L. Ed. 2d 157 (2004), relief from error— whether under Chapman, Kotteakos v. United States, 328 U.S. 750, 764-65, 66 S. Ct. 1239, 90 L. Ed. 1557 (1946)/Federal Rule of Criminal Procedure 52(a) (harmless error), or Federal Rule of Criminal Procedure 52(b) (plain error) — “is tied in some way to prejudicial effect, . . . [which] mean[s] error with a prejudicial effect on the outcome of a judicial proceeding.” See also United States v. Marcus, 560 U.S. 258, 270, 130 S. Ct. 2159, 176 L. Ed. 2d 1012 (2010) (Stevens, J., dissenting) (Fed. R. Crim. Proc. 52[a] and [b] provide “a unitaxy standard” for relief from error “which turns on whether the error in question affected substantial rights[.]”); Neder, 527 U.S. at 7 (Fed. R. Crim. Proc. 52[a] “applies to all errors”; in applying Fed. R. Crim. Proc. 52[a]’s harmless error analysis to constitutional errors, reviewing court must “ ‘disregar[d]’ errors that are harmless ‘beyond a reasonable doubt’ ”).
Under the United States Supreme Court’s analysis, although relief for any type of error — i.e., constitutional, harmless, or plain— is based on the same benchmark, effect on the outcome, the analysis for each type of error is formulated differently to set a higher or lower threshold or level of certainty as to whether the error affected the outcome. In other words, the standard of proof varies by the degree of certainty by which a court must be persuaded that the error did not affect the outcome. See Dominguez Benitez, 542 U.S. at 86 (Scalia, J., dissenting) (the Court has created too many gradations in the “standards of probability relating to the assessment of whether the outcome of the trial would have been different” if the error had not occurred); Brecht v. Abrahamson, 507 U.S. 619, 653-56, 113 S. Ct. 1710, 123 L. Ed. 2d 353, reh. denied 508 U.S. 968 (1993) (O’Connor, J., dissenting) (harmless error requires the reviewing court to determine whether it has “sufficient confidence that the verdict would have remained unchanged even if the error had not occurred”; only difference between Chapman and the Kotteakos/Fed. R. Crim. Proc. 52 standard “is the degree of confidence” the reviewing court must have that the error did not affect the outcome); see also (Traynor, The Riddle of Harmless Error, pp. 34, 43 (1970) (appellate courts must assess the risk that an error affected the outcome on a “sliding scale of probabilities”); Walker, Harmless Error Review in the Second Circuit, 63 Brook L. Rev. 395, 399 (1997) (harmless error standards establish the “degree of certainty required . . . before a court can declare [an error] harmless”).
The Chapman “harmless beyond a reasonable doubt” threshold requires the highest level of certainty that the error did not affect the outcome. See Brecht, 507 U.S. at 637 (quoting Chapman, 386 U.S. at 24, which quoted Fahy, 375 U.S. at 86, and concluding that under the Kotteakos standard, relief from error is granted only when the error had an actual effect on the outcome; under Chapman, relief from error is required “merely because there is a ‘ “reasonable possibility” ’ that trial error contributed to the verdict”); United States v. Lane, 474 U.S. 438, 446 n.9, 106 S. Ct. 725, 88 L. Ed. 2d 814 (1986) (Chapmans constitutional harmless error standard “is considerably more onerous than the standard for non-constitutional errors” adopted in Kotteakos, 328 U.S. 750).
Under federal law, all other nonstructural errors (nonconstitutional errors, errors on collateral review, and plain errors) are subject to a less stringent threshold; such errors must be held harmless where there is no “reasonable probability” the error affected the outcome. See Marcus, 130 S. Ct. at 2164 (“reasonable probability” that the error affected outcome, not “any possibility,” is the appropriate standard for determining whether a plain error affected substantial rights under Fed. R. Crim. Proc. 52[b]); Dominguez Benitez, 542 U.S. at 81-82 (a plain error “ ‘affects substantial rights’ ” as used in Fed. R. Crim. Proc. 52[b] where there is a “ ‘reasonable probability’ ” that, but for the error, the outcome would have been different).
Which threshold or level of certainty — reasonable probability or reasonable possibility — should be applied to K.S.A. 60-261 and K.S.A. 60-2105 when nonconstitutional error is involved has not been as clear, however. Recently, the point was addressed in State v. Shadden, 290 Kan. 803, 830, 235 P.3d 436 (2010), in which we relied on Marcus, 130 S. Ct. 2159, to reject the threshold of a “ possibility’ ” that an error had affected the outcome of a trial.
In Marcus, the United States Supreme Court discussed the harmless error provision of Fed. R. Crim. Proc. 52(b), which permits a federal appellate court to recognize “plain error that affects substantial rights.” The Court detañed four circumstances in which the rule could be applied, one of which is when an error “ ‘affected the appellant’s substantial rights, which in the ordinary case means’ it ‘affected the outcome of the district court proceedings.’ ” Marcus, 130 S. Ct. at 2164. The Court discussed the level of certainty required in this circumstance, stating: “In the ordinary case, to meet this standard an error must be ‘prejudicial,’ which means that there must be a reasonable probability that the error affected the outcome of the trial. [Citations omitted.]” (Emphasis added.) Marcus, 130 S. Ct. at 2164.
Citing Marcus, in Shadden, 290 Kan. at 830, we concluded the Kansas Court of Appeals had erred in reversing a conviction based on the mere possibility that a nonconstitutional error had affected the outcome of a trial. Based on Marcus, we applied a reasonable probability level of certainty to determine whether the error affected the outcome of the proceeding.
Synthesizing these various holdings, we conclude that before a Kansas court can declare an error harmless it must determine the error did not affect a party’s substantial rights, meaning it will not or did not affect the trial’s outcome. The degree of certainty by which the court must be persuaded that the error did not affect the outcome of the trial will vary depending on whether the error implicates a right guaranteed by the United States Constitution. If it does, a Kansas court must be persuaded beyond a reasonable doubt that there was no impact on the trial’s outcome, i.e., there is no reasonable possibility that the error contributed to the verdict. If a right guaranteed by the United States Constitution is not implicated, a Kansas court must be persuaded that there is no reasonable probability that the error will or did affect the outcome of the trial. (Because Ward claims a violation of rights guaranteed by the United States Constitution, the question of whether an error that implicates a right guaranteed by the Kansas Constitution but not the United States Constitution can be declared harmless and, if it can, what level of certainty would apply is not presented in this case and, therefore, is not determined. Likewise, we do not address the analysis to be applied in the context of a collateral review of error. See Brecht, 507 U.S. at 630-31).
That said, with the clarification that a reasonable probability threshold applies under K.S.A. 2010 Supp. 60-261 and K.S.A. 60-2105, it is confusing to talk about an error “having little, if any, likelihood” of affecting a trial’s outcome. This language suggests a reasonable doubt threshold, which is the context in which the language originated. In contrast, the wording used by the United States Supreme Court when discussing harmless error in a non-constitutional error setting does not include the phrase “little, if any, likelihood” and, therefore, avoids the potential for confusion. The Court considers all errors — constitutional, harmless, and plain — by the benchmark of affecting substantial justice, meaning affecting the outcome of the proceeding. Then, it applies the appropriate level of certainty. Our review of the history that has resulted from the varying wording this court has used persuades us that the analysis under K.S.A. 2010 Supp. 60-261 and K.S.A. 60-2105 should be phrased with similar consistency and without the “little, if any, likelihood” phrase.
In addition, we clarify that our frequent reference, primarily in prosecutorial misconduct cases, to satisfying both harmlessness standards — K.S.A. 2010 Supp. 60-261 and Chapman v. California, 386 U.S. 18, 22, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967) — should not be read to imply there are two different tests. E.g., State v. Kemble, 291 Kan. 109, 121-22, 238 P.3d 251 (2010) (using language of both standards); State v. Tosh, 278 Kan. 83, Syl. ¶ 2, 91 P.3d 1204 (2004) (discussing basis for statement). Rather, as discussed, there is one benchmark of whether substantial justice is affected with different levels of certainty required.
6. Burden of Production
One further point of confusion remains: Who carries the burden of production to establish that there is no reasonable possibility or reasonable probability that the error affected or will affect the outcome? In the context of a motion for mistrial, we have frequently imposed the burden of production on the defendant. See, e.g., State v. Foster, 290 Kan. 696, 717, 721, 233 P.3d 265 (2010) (statutory harmless error). In other cases, we have often stated the standard in a burden-neutral fashion, merely concluding an appellate court must be convinced the error did not affect the outcome of the trial. E.g., State v. Wells, 289 Kan. 1219, 1233, 1238-39, 221 P.3d 561 (2009) (statutory harmless error and Chapman).
A recent case considered by the United States Supreme Court raises a question of whether the burden can be imposed on a defendant if the federal constitutional harmless error standard is being applied. In Gamache v. California,_U.S._, 131 S. Ct. 591, 178 L. Ed. 2d 514 (2010), the Court denied a petition for writ of certiorari in which a criminal defendant sought review of the California Supreme Court’s finding that a federal constitutional error was harmless. Although the Court unanimously voted to deny the petition, four justices joined in a statement pointing out that the California court had incorrectly required a defendant to establish prejudice from the alleged error, stating:
“Under our decision in Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967), the prosecution must carry the burden of showing that a constitutional trial error is harmless beyond a reasonable doubt. See also Deck v. Missouri, 544 U.S. 622, 635, 125 S. Ct. 2007, 161 L. Ed. 2d 953 (2005) (‘[W]here a court, without adequate justification, orders the defendant to wear shackles that will be seen by the jury . . . [t]he State must prove “beyond a reasonable doubt that the [shackling] error complained of did not contribute to the verdict obtained” ’ (quoting Chapman, 386 U.S. at 24, 87 S.Ct. 824)); United States v. Dominguez Benitez, 542 U.S. 74, 81, n.7, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004) (“When the Government has the burden of addressing prejudice, as in excusing preserved error as harmless on direct review of the criminal conviction, it is not enough to negate an effect on the outcome of the case’ (citing Chapman, 386 U.S., at 24, 87 S.Ct. 824); Arizona v. Fulminante, 499 U.S. 279, 295-296, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991) (‘The Court has the power to review the record de novo in order to determine an error’s harmlessness. In so doing, it must be determined whether the State has met its burden of demonstrating that the “error” did not contribute to [defendant’s] conviction’ (citations omitted)).
“The California Supreme Court, however, stated, ‘[I]n the absence of misconduct, the burden remains with the defendant to demonstrate prejudice under the usual standard for ordinary trial error.’ 48 Cal. 4th, at 397, 106 Cal.Rptr.3d 771, 227 P.3d, at 387 (emphasis added). It is not clear what the court intended in allocating the burden to the defendant to demonstrate prejudice, but if it meant to convey that the defendant bore the burden of persuasion, that would contravene Chapman. [Citations omitted.]” Gamache, 131 S. Ct. at 592.
The four justices concluded the allocation of the burden did not impact the conclusion that the error was harmless in Gamache. Nevertheless, the four justices noted that “the allocation of the burden of proving harmlessness can be outcome determinative in some cases” and “in future cases the California courts should take care to ensure that their burden allocation conforms to the commands of Chapman.” Gamache, 131 S. Ct. at 593.
We heed this warning even though Gamache is not controlling as it is merely a statement by four justices related to a denial of certiorari. We do so because we find the justices’ statements persuasive for several reasons. First, “because the standard of review (like the applicability of harmless error) is part and parcel of the federal right itself, a state court may be prohibited from adopting standards of review that are more deferential than the standards adopted by federal courts.” 7 LaFave, Israel, King & Kerr, Criminal Procedure § 27.5(e) (3d ed. 2007). Second, we agree with the four justices that the allocation of the burden can be outcome determinative and, in such a case, Chapman would require the party favored by the error — usually the State — to cariy the burden of production. Third, a state court decision that is contrary to or applies the federal constitutional harmless error standard “in an ‘objectively unreasonable’ manner,” is subject to federal habeas review. Mitchell v. Esparza, 540 U.S. 12, 17-18, 124 S. Ct. 7, 157 L. Ed. 2d 263 (2003). Finally, on occasion we have appropriately imposed the burden on the State as the party benefitting from the alleged error. E.g., State v. Kleypas, 272 Kan. 894, 1084, 40 P.3d 139 (2001), cert. denied 537 U.S. 834 (2002).
Consequently, the better practice is to express the federal constitutional harmless error standard as we did in Kleypas: “A con stitutional error may be declared harmless where the [party benefitting from the error] proves beyond a reasonable doubt that the error complained of did not [affect substantial rights, meaning it did not] contribute to the verdict obtained.” Kleypas, 272 Kan. at 1084 (citing Chapman, 386 U.S. at 24).
Because we ultimately apply the federal constitutional harmless error standard in this case, we need not determine which party carries the burden of production regarding the effect of a nonconstitutional error under K.S.A. 60-261 or K.S.A. 60-2105.
7. Standard of Review Summary
With these different points in mind, we restate the two-step test that frames the analysis for a motion for mistrial: First, was there a fundamental failure in the proceeding? Second, if so, did this fundamental failure result in an injustice? To determine whether an error makes it impossible to proceed with the trial without injustice, a trial court must assess whether the fundamental failure affected a party’s substantial rights, which means it will or did affect the outcome of the trial in light of the entire record. The degree of certainty by which the court must be persuaded that the error did not affect the outcome will vary depending on whether the fundamental failure infringes upon a right guaranteed by the United States Constitution. If it does not, the trial court should apply K.S.A. 60-261 and determine if there is a reasonable probability that the error will or did affect the outcome of the trial in light of the entire record. If the fundamental failure does infringe upon a right guaranteed by the United States Constitution, the trial court should apply the constitutional harmless error analysis defined in Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705, reh. denied 386 U.S. 987 (1967), in which case the error may be declared harmless where the party benefitting from the error proves beyond a reasonable doubt that the error complained of will not or did not affect the outcome of the trial in light of the entire record, i.e., proves there is no reasonable possibility that the error affected the verdict. Regardless of whether the error is constitutional, one factor to be considered is whether any damage caused by the error can be or was removed or mitigated by ad monition, instruction, or other curative action. An appellate court reviewing the second step for an injustice will review the entire record and use the same analysis, applying K.S.A. 60-261 and K.S.A. 60-2105 or else Chapman, depending on the nature of the right allegedly affected.
B. Right to a Fair Trial
Applying this two-step test, we must first determine whether the trial court erred in determining it was not a fundamental failure in the trial to allow West and Jackson to be identified as Ward’s associates while they were dressed in jail clothing. Again, the trial court will have abused its discretion if we determine this conclusion (1) is arbitrary, fanciful, or unreasonable, i.e., if no reasonable person would have taken the view adopted by the trial court; (2) is based on an error of law, i.e., if the discretion is guided by an erroneous legal conclusion; or (3) is based on an error of fact, i.e., if substantial competent evidence does not support a factual finding on which a prerequisite conclusion of law or the exercise of discretion is based. See State v. Gonzalez, 290 Kan. 747, 755-56, 234 P.3d 1 (2010).
The State argues that the issue relates to the trial court’s control of the courtroom and trial, an area where traditionally the trial court is given broad discretion. See, e.g., State v. Kemble, 291 Kan. 109, 114, 238 P.3d 251 (2010). On the other hand, Ward suggests that there was a fundamental failure in her trial and the trial court’s determination was based on an error of law that failed to recognize an infringement on her right to be presumed innocent and her right to a fair trial, both of which are fundamental constitutional rights guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution. See Estelle v. Williams, 425 U.S. 501, 503, 96 S. Ct. 1691, 48 L. Ed. 2d 126, reh. denied 426 U.S. 954 (1976) (“The presumption of innocence, although not articulated in the Constitution, is a basic component of a fair trial under our system of criminal justice.”). The presumption of innocence is founded on the principle that “one accused of a crime is entitled to have guilt or innocence determined solely on the basis of the evidence introduced at trial, and not on grounds of official suspi cion, indictment, continued custody, or other circumstances not adduced as proof at trial.” Taylor v. Kentucky, 436 U.S. 478, 485, 98 S. Ct. 1930, 56 L. Ed. 2d 468 (1978). As previously noted, in addition to citing Estelle as support, Ward cites to State v. Alexander, 240 Kan. 273, 729 P.2d 1126 (1986), and State v. Hall, 220 Kan. 712, 556 P.2d 413 (1976).
Estelle, Alexander, and Hall are distinguishable from this case, however, because in those cases the prejudice arose from circumstances showing that the defendant was in jail. The decisions did not discuss the impact of evidence showing that someone other than the defendant was in jail. Before us, neither party has cited any authority on the issue of whether witnesses for the prosecution may identify individuals attired in jail clothing and seated in the courtroom as associates of the defendant. Our research has provided minimal guidance.
1. Witness in Jail Clothing
What this research has revealed is that the law is less settled regarding whether witnesses should be permitted to testify in jail clothing, but a majority of jurisdictions have concluded that requiring a witness who is called by the State to testify in jail clothing may affect the defendant’s right to a fair trial. See Annot., 16 A.L.R. 4th 1356. The results are not the same if the witness is called by the defense. We addressed this situation in State v. Bradford, 254 Kan. 133, 864 P.2d 680 (1993).
In Bradford, the defendant moved for a mistrial after a defense witness testified while in chains and jail clothing. The defendant argued the use of chains could have caused jurors to base their evaluation of the witness’ credibility on unacceptable factors. The trial court denied the motion. On appeal, the Bradford court observed that the defendant called this witness to testify concerning events that allegedly occurred while he and the witness were incarcerated. The defendant did not request that either the jail clothing or chains be removed. The Bradford court stated that the witness’ “courtroom appearance was controlled by Bradford, not by the State.” Bradford, 254 Kan. at 143. Finding no abuse of discretion on the part of the trial court, we further noted that the court offered to have the chains removed when the witness’ appearance was first brought to its attention. Bradford, 254 Kan. at 143.
The facts of Bradford are so distinguishable the' decision is not particularly helpful. Here, we do not have a witness being called by the defense; rather the State controlled West’s and Jackson’s appearance in the courtroom. Further, the individuals wearing jail clothing in our case were not witnesses and had not been listed as potential witnesses-, so there was no advance notice- to Ward. Despite these distinctions, it is noteworthy that Bradford’s rationale implies that a witness ordinarily should not testify in a jury trial while wearing jail clothing.
To emphasize the appropriateness of that conclusion and to suggest that the conclusion’s doctrinal basis is the presumption of innocence, Ward points us to the rationale used by appellate courts in other jurisdictions that have disapproved of the practice of having witnesses testify in jail clothing. These cases — Gibson v. State, 233 S.W.3d 447 (Tex. App. 2007), and State v. Kuchera, 198 N.J. 482, 969 A.2d 1052 (2009)do not fully support her argument, however.
In the first of these cases, Gibson, the Texas Court of Appeals found it was within the trial court’s discretion to require witnesses to appear in jail clothing if the circumstances warranted it. There, the defendant knew the witness was in jail and would likely be called to testify, but the defendant did not make a timely request that the witness be permitted to testify in street clothing. The trial court instructed the jury to disregard the witness’ jail clothing and handcuffs. Although the Texas Court of Appeals believed “it is better to require that no witness testify in jail clothing,” it held that the trial court did not abuse its discretion in denying ¡the motion for mistrial. Gibson, 233 S.W.3d at 453.
In the second case cited by Ward, Kuchera, the New Jersey Supreme Court concluded that as a general rule, witnesses for either the State or defense should not testify in jail clothing. The general rule, however, was tempered by the court’s recognition that such attire may be “affirmatively permitted by the trial court in the exercise of its discretion.” Kuchera, 198 N.J. at 486. Still, the court narrowed that discretion by indicating that requiring a witness to testify in jail clothing “ ‘further[s] no vital State interest,’ ” Kuchera, 198 N.J. at 499 (quoting State v. Artwell, 177 N.J. 526, 539 832 A.2d 295 [2003]), and it similarly prejudices the defendant in terms of his witness’ credibility and the suggestion of “ ‘guilt by association.’ ” Kuchera, 198 N.J. at 499 (quoting Artwell, 177 N.J. at 539).
Ward points out that unlike the situations in Gibson and Kuchera, Ward, through her counsel, did voice an objection to the presence of the jail-clothed individuals. She also acknowledges, however, that these cases do not directly address the issue before this court where it is the appearance of a nonwitness that raises a question of prejudice.
Furthermore, several other cases regarding witnesses do not support Ward’s arguments. While these courts have recognized the risk of unfair prejudice to a defendant when witnesses are forced to testify in jail clothing or restraints, many have concluded that the practice does not adversely affect the defendant’s presumption of innocence or imply that the defendant is disposed to commit crimes. Rather, the potential prejudice has been seen as arising because of the impact on the witness’ credibility. See, e.g., Harrell v. Israel, 672 F.2d 632, 635 (7th Cir. 1982) (“Although the shackling of defense witnesses may be less prejudicial to the accused because it does not directly affect the presumption of innocence, . . . nevertheless it may harm his defense by detracting from his witness’ credibility.”); People v. Froehlig, 1 Cal. App. 4th 260, 264, 1 Cal. Rptr. 2d 858 (1991) (“The appearance of a defense witness attired in prison clothes does not, of course, adversely affect the presumption of innocence or cariy with it the inference that the defendant is a person disposed to commit crimes. . . . The credibility of a defense witness observed by the jury in prison attire may be suspect, but the prejudicial impact upon the defense is considered ‘less consequential.’ ”); Commonwealth v. Brown, 364 Mass. 471, 475, 305 N.E.2d 830 (1974) (“The shackling of a witness . . . may influence a jury’s judgment of credibility and further hurt the defendant in so far as the witness is conceived to be associated with him.”); Hightower v. State, 123 Nev. 55, 58, 154 P.3d 639 (2007) (“[Requiring an incarcerated defense witness to appear in prison clothing may prejudice the accused by undermining the witness’s credibility in an impermissible manner.”); State v. Hartzog, 96 Wash. 2d 383, 399, 635 P.2d 694 (1981) (“While a shackled witness may not directly affect the [defendant’s] presumption of innocence, it seems plain that there may be some inherent prejudice to defendant, as the juiy may doubt the witness’ credibility.”).
In this case, we are not concerned about the credibility of West or Jackson, who did not testify, and these cases do not support a conclusion that their presence in the courtroom while in jail clothing infringed on Ward’s right to be presumed innocent.
2. Bystanders in Jail Clothing
Similarly, in the few cases we found where a prisoner was brought into the courtroom but not called as a witness, the courts questioned the practice but found the potential prejudice to be less than that caused by a defendant in jail clothing appearing before a jury.
For example, in Hedrick v. State, 6 So. 3d 688 (Fla. Dist. App. 2009), the defendant claimed that defense counsel should have objected to the codefendants appearing at trial in shackles and prison clothing. The codefendants were brought into the courtroom during die testimony of one of the victims, who identified the defendant as the tallest of the attackers. The State demonstrated the accuracy of this opinion by displaying the codefendants. The defendant’s motion alleged that the jury may have perceived him as guilty by association because the codefendants’ appearance in prison clothing and shackles indicated that they were in custody. Yet, the Hedrick court stated that the defendant failed to show prejudice. The court observed that the defense was that the co-defendants were the ones who had beaten the victim, and the defendant was merely a bystander. The court determined that “[t]he co-defendants’ appearance in prison garb had no bearing on the defense.” Hedrick, 6 So. 3d at 694.
In addition, the Hedrick court cited to a Mississippi decision, Morgan v. State, 818 So. 2d 1163 (Miss. 2002), in which the court considered the possible error of a State’s witness appearing before the jury in shackles or jail clothing. The Mississippi court noted a line of cases holding that it was prejudicial to bring a defendant or a defense witness into the courtroom in shackles or jail clothing but distinguished the cases because the witness was a prosecution witness. Consequently, the court reasoned the defense was not prejudiced by any damage to the witness’ credibility. Morgan, 818 So. 2d at 1174.
Another case, Craig v. State, 761 S.W.2d 89 (Tex. App. 1988), is also similar to this case, although the association between the prisoner and the defendant was weaker. In Craig, during the State’s case-in-chief, a female witness was called to the stand to establish certain events in a bar, which allegedly occurred before the abduction and killing of the victim. The witness testified that she observed the victim with the defendant and a “taller man with long, dark or black hair.” Craig, 761 S.W.2d at 93. After the witness was cross-examined by defense counsel, the State brought a male person into the courtroom in jail clothing and leg irons and asked the witness if she recognized him. She responded that she did not. Defense counsel made a motion for mistrial, arguing that the individual’s presentation in jail clothing and leg irons was prejudicial.
The Texas Court of Appeals affirmed the trial court’s denial of the motion and distinguished the case from those where the defendant or a witness is forced to testify in restraints or jail clothing. Craig, 761 S.W.2d 94-95. The Craig court stated:
“Under our record, this male person was not identified and was not presented to the jury as a witness. Some male person simply appeared in the courtroom. This person was not placed in the witness box. . . .
“. . . Under this entire record, we find that the appearance of this male person in the courtroom, in restraint and in jail attire, made no contribution to the conviction or to the punishment of the [defendant] and we so find beyond a reasonable doubt.” Craig, 761 S.W. 2d at 94.
Finally, a nonwitness was brought into the courtroom in Reese v. State, 241 Ga. App. 350, 526 S.E.2d 867 (1999). The defendant argued that bringing a codefendant into the courtroom in jail clothing for the purpose of identification was prejudicial because it associated the defendant with someone convicted of a crime. In rejecting this argument, the court noted that the jury was not told that the codefendant had been convicted. Reese, 241 Ga. App. at 353; see also Cook v. Beto, 425 F.2d 1066, 1066-67 (5th Cir. 1970), cert. denied 400 U.S. 944 (1970) (summary rejection of habeas corpus claim based on defendant’s codefendant being brought into the courtroom for identification while dressed in jail clothing; court found that this resulted in no prejudice to the defendant).
3. Synthesizing and Applying These Cases
All of these cases, whether relating to a defendant, witness, or nonwitness being brought into the courtroom in jail clothing, are expressly or impliedly critical of the practice. We agree with this criticism and conclude, in the first step of our analysis, that given the consensus in the case law that jail clothing taints a trial, a trial court almost always abuses its discretion to control the courtroom when it allows a defendant, witness, or nonwitness to be brought before a jury in jail clothing without an articulated justification explaining why it is necessary for the person to wear jail clothing and does not consider giving an admonition or instruction to the jury that it should not consider the clothing or the person’s incarceration. (In some cases, an admonition may not be advisable, but the pros and cons should be weighed.) As we have noted, discretion is abused when a trial court does not take into account the legal principles that control its decision. In this situation, the case law, including decisions of the United States Supreme Court, indicate the trial court should avoid the taint of jail clothing on a trial. Ignoring this case law is an abuse of discretion. See Gonzalez, 290 Kan. at 755-56.
While the Court of Appeals acknowledged the general proposition that West and Jackson should not have been in jail clothing, it found a proper exercise of discretion because of the purposes given by the State for wanting them identified. Yet, this justification merely explains the reason for their presence; it does not suggest any justification for the two to be in jail clothing or explain why arrangements could not have been made for them to appear in street clothes.
C. Prejudice: Were Substantial Rights Affected?
Nevertheless, as our discussion has revealed, the jail clothing taint on this trial does not mean that a mistrial must be declared. Typically, after finding a fundamental failure in the proceeding, a trial court would assess the prejudicial effect. Here, however, the trial court did not find error or misconduct and, therefore, did not determine whether curative instructions or admonitions were warranted and did not gauge the prejudice caused by the error.
In cases such as this, where an appellate court finds that the trial court erred in its first step of analysis regarding whether there is a fundamental failure in a proceeding and consequently did not make a prejudice assessment, the appellate court may undertake the second step without benefit of the trial court’s assessment. The role of the appellate court in this circumstance is to review the entire record and determine de novo if a trial court’s error was harmless. K.S.A. 60-2105. This is a role an appellate court frequently undertakes, and K.S.A. 60-261 and K.S.A. 60-2105 or else Chapman, 386 U.S. 18, provide the tools for this assessment.
In applying those tools, the Court of Appeals imposed the burden of production on Ward, i.e., required Ward to come forward with evidence, and, without stating the level of certainty required, applied the substantial rights threshold, citing State v. Albright, 283 Kan. 418, 425-26, 153 P.3d 497 (2007); see K.S.A. 60-261. If a right guaranteed by the United States Constitution is implicated, as Ward suggests, both the trial court and the Court of Appeals should have applied the federal constitutional harmless error standard (beyond a reasonable doubt/reasonable possibility threshold) and imposed the burden of production on the State.
In assessing whether the Court of Appeals erred in this regard, we note that courts from other jurisdictions have generally not found the presumption of innocence to be implicated when the individual wearing the jail clothing was someone other than the defendant. A trend is not as clear with regard to whether the due process right to a fair trial has been infringed, however. Nevertheless, we conclude that the right to a fair trial and the right to a presumption of innocence as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution are implicated when individuals in jail clothing are identified to the jury as associates of a defendant. This means Chapman should have been applied by the Court of Appeals when assessing prejudice and will be applied by this court in determining if the error was harmless. Again, under this standard, the error may be declared harmless where the State, as the party benefitting from the error, proves beyond a reasonable doubt that the error complained of did not affect substantial rights, meaning there is not a reasonable possibility that the error contributed to the verdict obtained.
We recognize that imposing that burden on the State at this point changes the rule because, as noted, past Kansas cases have placed the burden of establishing prejudice on the defendant in mistrial cases. This shift in burden is of no consequence in this case, however, because the State presented arguments as to why there was no prejudice. These arguments are consistent with those made in the cases we have discussed in which courts found it harmless to have a nonwitness in the courtroom in jail clothing.
It is significant that in some of those cases, the appellate court applied the higher level of certainty and still found the presence of a nonwitness in jail clothing to be harmless. We do not read these cases as basing this decision solely on the fact that the conduct in question occurred outside the witness stand. To this extent the cases are consistent with Kansas precedent, which has rejected such a distinction. See, e.g., State v. Leaper, 291 Kan. 89, 96-97, 238 P.3d 266 (2010) (mistrial requested after juror reported seeing witness take offered exhibit and place in pocket while leaving courtroom; fact that witness’ negative behavior occurred in courtroom rather than on witness stand was not dispositive on question of whether mistrial should have been granted); State v. Foster, 290 Kan. 696, 718, 233 P.3d 265 (2010) (mistrial requested after defendant’s weeping father left courtroom during rape victim’s testimony). Rather, it appears to be that other factors — such as the strength of the evidence against the defendant and an attenuated or unexplained connection between the individual’s incarceration and the charged crimes — weigh against a finding of prejudice.
Considering those factors, although West was identified as a co-conspirator of Ward, there was never any statement that he had been found guilty of that charge. Further, Ward’s own arguments attempted to point a finger at West or others to suggest that while Ward was present at the scene of the crimes she was not directly involved in the cocaine sales. In addition, Ward raised the possibility of misidentification. For example, defense counsel implied there was a mistake when Ward was identified in a photo lineup and suggested reasonable doubt arose because Ward and her daughter, Jackson, looked veiy similar in the photo lineup. One could even conclude that the presence of West and Jackson during transactions benefitted the defense’s theory, which focused on the officers’ admissions that they never saw Ward physically hand over the drugs to Stinnett, in an attempt to suggest someone else made the sales. Also, the defense at least attempted to imply that the similar appearance of Ward and Jackson could lead to misidentification.
Finally, the State presented substantial direct and circumstantial evidence connecting Ward to four separate drug transactions. We are convinced beyond a reasonable doubt that the State has met its burden of proof in showing that the witnesses’ identification of West and Jackson dressed in jail clothing did not affect the outcome of the trial.
II. Sufficiency of Evidence
The other issue argued by Ward is that the evidence was insufficient to support a verdict. Before us, Ward modifies her sufficiency of the evidence argument and presents two questions. The first question was not raised before the Court of Appeals or in Ward’s petition for review, and we decline to consider the question. The second question was discussed by the Court of Appeals, and we affirm.
A. Failure to Preserve KS.A. 65-4161(d) Issue
The specific question raised for the first time in Ward’s brief to this court is whether the State failed to establish that Garfield School, which had been identified as a school located close to a laundromat where some of the drug transactions occurred, was a school as defined in K.S.A. 65-4161(d). This statute prohibits certain drug transactions within 1,000 feet of a structure “used by a unified school district or an accredited nonpublic school for student instruction or attendance or extracurricular activities of pupils enrolled in kindergarten or any of the grades one through 12.” At trial, there was evidence that Garfield School was a public school attended by kindergartners through third graders, but Ward argues there was no evidence that the school was used by a unified school district or an accredited nonpublic school. See State v. Star, 27 Kan. App. 2d 930, 936, 10 P.3d 37, rev. denied 270 Kan. 903 (2000) (to sustain conviction for sale of cocaine within 1,000 feet of a school, State must present evidence that structure referred to as a school complies with the definition in 65-4161[d]); see also State v. West, Nos. 99, 063, 99, 067, 2008 WL 4849472 (Kan. App. 2008) (unpublished opinion), rev. denied 289 Kan. 1285 (2009) (reversing three convictions for insufficient evidence of sale of cocaine within 1,000 feet of a school because State failed to prove that the building within 1,000 feet of the three sale transactions was part of unified school district or accredited nonpublic school).
As we have noted, this issue was not raised before the Court of Appeals or in Ward’s petition for review. Rather, before the Court of Appeals and in her petition for review, Ward did not point to a failure to prove any specific element of a crime and did not distinguish one count from another. In a case that is before the Kansas Supreme Court on a granted petition for review, an issue cannot be raised for the first time before the Supreme Court. Any issue that was not presented to the Kansas Court of Appeals is deemed abandoned. See Osterhaus v. Schunk, 291 Kan. 759, 794, 249 P.3d 888 (2011); see also Supreme Court Rule 8.03(a)(5)(c) (2010 Kan. Ct. R. Annot. 69) (“Issues not presented in the petition, or fairly included therein, will not be considered by the court.”).
Consequently, we will not address the merits of Ward’s claim that the State failed to establish that Garfield School complies with the definition in K.S.A. 65-4161(d).
R. Sufficiency of the Evidence in General
In her second issue, Ward reasserts the arguments she made before the Court of Appeals, i.e., that there was no direct evidence that Ward was involved in the 17 crimes for which she was convicted and that Stinnett’s testimony lacked credibility.
Our standard of review is well known and was properly cited by the Court of Appeals: When examining the sufficiency of the evidence in a criminal case, the standard of review is whether, after reviewing all the evidence in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Northcutt, 290 Kan. 224, 231, 224 P.3d 564 (2010); State v. Gant, 288 Kan. 76, 83, 201 P.3d 673 (2009). We agree with the Court of Appeals that there is strong evidence of Ward’s involvement, including direct evidence, and the issue of credibility was resolved by the jury and will not be reweighed on appeal.
In the light most favorable to the prosecution, Stinnett’s testimony established that the four controlled drug buys took place. Certainly, Stinnett’s credibility was in question during the trial, but the defense was given ample opportunity to thoroughly cross-examine her. Additionally, the jury was made aware that Stinnett was cooperating with law enforcement in exchange for the dismissal of charges against her, some of which were drug related, and the trial court gave a cautionary instruction regarding the testimony of a confidential informant. As aptly noted by the Court of Appeals, the credibility of Stinnett was solely within the province of the jury and not within that of an appellate court, which does not reweigh evidence, assess the credibility of the witnesses, or resolve conflicting evidence. Gant, 288 Kan. at 80.
Ward also asserts her convictions should be reversed because there is only circumstantial evidence to support them. The legal premise of this argument is ill-founded because the law clearly allows a conviction of even the gravest offense to be based on circumstantial evidence. State v. Becker, 290 Kan. 842, 852, 235 P.3d 424 (2010) (stating general principle and noting that specific intent need not be shown by direct proof but may be shown by acts, circumstances, and reasonable inferences “deducible therefrom”); State v. Tyler, 286 Kan. 1087, 1095, 191 P.3d 306 (2008) (circumstantial evidence is evidence of events or circumstances from which reasonable factfinder may infer existence of material fact in issue). Certainly, Ward was free to argue to the jury that the circumstantial nature of much of the evidence created reason able doubt, but on appeal we accept the circumstantial evidence in the light most favorable to the State when assessing sufficiency. Further, the factual premise of Ward’s argument is also ill-founded because there was direct evidence — observations—of the transactions by officers and Stinnett.
In this regard, in Ward’s petition for review and supplemental arguments, she focuses on the fact that Detective Wagenseller admitted during his testimony that he did not actually see Ward and Stinnett exchange money or cocaine during any of the four controlled drug buys, that he never recovered any marked purchase money from Ward, and that no law enforcement officers actually saw Stinnett dial Ward’s phone number. And even though there was a videotape of some of the controlled buys, Deputy Troy Briggs testified Ward could not actually be seen in any of the recordings. Briggs indicated that he saw Stinnett enter and exit Ward’s house on January 25 and January 31, 2007, but he admitted that he could not observe what happened inside.
Yet, the officers observed many aspects of the transactions, saw Ward in the blue Suburban, overheard conversations, and verified many aspects of Stinnett’s testimony. For example, Officer Roy Williams testified that prior to this case he had known Ward for about 5 years and had numerous conversations with Ward in his capacity as a narcotics officer. Williams confirmed that Stinnett dialed Ward’s phone number in each of the controlled drug buys. He also testified that he recognized Ward’s voice on the audiotapes of the transactions and that he knew Ward owned a blue Suburban. Other officers explained the steps taken to control the buys and to maintain audio and video surveillance that allowed them to witness the general nature of the events.
In light of this evidence, we conclude that, even though the officers who monitored die drug transactions did not witness the actual exchange of money and cocaine between Ward and Stinnett, their observations and testimony, when considered along with Stinnett’s testimony, provide more than sufficient evidence that Ward sold Stinnett crack cocaine on the four separate occasions identified in the charges.
Affirmed.
Paul E. Miller, District Judge, assigned.
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The opinion of the court was delivered by
Kingman, C. J.:
This is an application for the writ of habeas corpus. It must be refused for two reasons, either of which is sufficient.
I. It appears by the petition that the applicant is in custody by virtue of process issued on a final judgment of a court of competent jurisdiction; and this fact precludes an inquiry into the legality of the judgment or process by which he is imprisoned, and would prevent this court from discharging him from custody: § 671, ch. 80, Gen. Stat.
II. The petition avers that the applicant for the writ is in custody by virtue of an order of arrest issued by a justice of the peace. It is alleged that the affidavit on which the decision of the justice was based contains no facts to warrant the arrest of the applicant. No copy of the affidavit is furnished; no statement of its character is made. The statement that it does not contain facts to warrant the arrest is a conclusion of law, and not a statement of facts. Before this court will bring a man from a distant county enough should appear iu the application for the writ for the court to form some judgment on the case; and this the statute contemplates
The writ must be refused.
All the Justices concurring. | [
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The opinion of the court was delivered by
Luckert, J.:
In Koplin v. Rosel Well Perforators, Inc., 241 Kan. 206, 734 P.2d 1177 (1987), this court concluded that “absent some independent tort, contract, agreement, voluntary assumption of duty, or special relationship of the parties, the new tort of ‘the intentional interference with a prospective civil action by spoliation of evidence’ should not be recognized in Kansas.” Koplin, 241 Kan. at 215. In reaching this holding, this court reserved the question of whether Kansas would recognize the tort if a defendant or potential defendant in an underlying case destroyed evidence to their own advantage. Koplin, 241 Kan. at 215.
In this appeal, Superior Boiler Works, Inc. (Superior), argues a special relationship existed between it and F. Robert Kimball, Mark Stuerman, and Ferris Kimball Company, LLC (FK Company) (collectively Defendants), that required the Defendants to preserve evidence. Alternatively, Superior argues the facts of this case require us to address the question the Koplin court reserved and further argues we should answer the reserved question by recognizing the tort and applying it to give Superior the right to recover from the Defendants. The district court rejected these arguments and granted die Defendants summary judgment, finding there was not a contract, agreement, voluntary assumption of duty, or special relationship requiring the Defendants to preserve evidence and the reserved question did not apply to spoliation claims between those who are potential codefendants in the underlying action. We affirm.
Factual and Procedural Background
Superior brought suit against the Defendants on two counts, labeling Count I as “Intentional Interference with Actual and Prospective Actions by Destruction of Evidence” and Count II as “Negligent Interference with Actual and Prospective Actions by Destruction of Evidence.” Eventually, all parties filed motions for summary judgment. The district court denied Superior’s motion and granted those of each defendant.
In one of those summary judgment decisions, specifically the order granting summary judgment to Kimball, the district court recited the following uncontroverted facts that explain the rela tionship of all of the parties and provide the context of Superior’s allegations:
“Defendant Kimball was affiliated with Ferris Kimball Company [FK Company] through 1999. Specifically, Kimball was a partner with his father in the [FK] Company. In 1984, Kimball became the owner of the sole proprietorship doing business as [FK] Company. Kimball sold [FK] Company to Mark Stuerman in 1999. [There were various business forms of FK Company that we will genericaily refer to as FK Company, accepting, without analysis, Superior’s argument that successor liability principles apply.]
“Throughout March and April 2002, [Superior] contacted [FK Company] seeking information regarding asbestos content in materials supplied to [Superior] for use in its boilers. On March 21, 2002, [Superior] asked [FK Company] and/or Mark Stuerman for information concerning Plibrico Products and asbestos material [Superior] had purchased. In March 2002, [FK Company] sent an inquiry to Plibrico seeking information to answer [Superior’s] inquiry. [FK Company], via defendant Mark K. Stuerman, then transmitted correspondence to [Superior], answering its inquiry. The correspondence specified the names of all products sold and provided that one product may or may not have contained some asbestos. In April 2002, [Superior] submitted another inquiry to [FK Company] asking for poundage figures on sales of products, from [FK Company] to [Superior], between 1967 and 1983. In response, [FK Company] and/or Mark Stuerman transmitted a letter to [Superior] with attachments detailing sales, from [FK Company] to [Superior], between 1967 to 1983. [In doing so, Stuerman referenced company index cards, which contained the names of customers, dates of orders, and materials ordered.] The attachments categorized sales by year and product and provided specific weights purchased by invoice, year and product. [Superior] made no further requests for information or documents, from [FK Company], until 2007.”
Five years elapsed before there was further contact between Superior and any of the Defendants regarding the records. The district court found the following uncontroverted facts relating to what transpired when contact was renewed:
“In 2007, counsel for [Superior] contacted Robert Kimball and told Kimball that [Superior] was involved in asbestos related litigation; that Kimball’s company had supplied products which were used in [Superior’s] boilers; and thus, [Superior] was interested in ‘looking at whatever materials Kimball had’ regarding products supplied by [FK Company] to [Superior]. In March 2007, counsel for [Superior] forwarded correspondence to counsel for Stuerman and [FK Company] ‘stating that [Superior] intended to subpoena any and all documents related to the sale of refractory products from [FK Company] to [Superior],’ including ‘all documents reviewed or referred to in preparation of the 2002 correspondence as well as all documents which concerned the sale of products from [FK Company] to [Superior].’ Kimball did not expressly agree to preserve or maintain the index cards.”
After receiving this letter, the Defendants destroyed FK Company’s old company records dating back to the 1930’s, including those that had been used to compile the information provided in 2002. Of these destroyed records, the primaiy evidence sought by Superior consisted of index cards, which detailed product sales from 1967 through 1983, and so-called “gold sheets,” which recorded information regarding orders. Before destroying any records, Stuerman sought the advice of counsel. He then contacted Cintas Corporation, a shredding service, and on March 1, 2007, Cintas picked up three pallets of records and destroyed them, off site, the next day. The index cards were not included in the materials handed over to Cintas. Kimball gained possession of the index cards and destroyed them himself in early March 2007.
It was uncontroverted that at the time the Defendants “purged the records, neither Robert Kimball, Ferris Kimball Co., nor any of its other past or present employees had been served, subpoenaed or otherwise joined in any asbestos litigation.” On March 29, 2007, Superior subpoenaed documents relating to evidence of sales by FK Company to Superior. By that time, the company records had been destroyed by the Defendants.
Although there were factual disputes regarding the extent of the Defendants’ knowledge about pending litigation or the threat of pending litigation, the district court adopted the view most favorable to Superior and assumed that the Defendants had knowledge of pending asbestos litigation against Superior and knew that FK Company (in its various business forms), Kimball, and Stuerman could be joined as parties in pending or future asbestos litigation. Even assuming those facts in the light most favorable to Superior, the district court concluded that “neither the parties’ past, commercial relationship, nor defendants’ knowledge of [Superior’s] pending litigation created a duty to preserve the index cards.” Because there was “no agreement, contract, statute, voluntaiy assumption of duty, or other special circumstance creating a duty to preserve records,” the Defendants “were entitled to destroy them.”
Superior now appeals. Our jurisdiction arises from K.S.A. 20-3018(c) (a transfer from the Court of Appeals on this court’s own motion).
Analysis
Superior argues that the district court erred in finding the Defendants did not have a duty to preserve the old company records and in granting summary judgment to the Defendants on that basis. According to Superior, the Defendants had a duty to preserve evidence that they knew or should have known was important to Superior’s defense in pending asbestos litigation.
Superior asks this court for a narrow holding, as is emphasized by two limitations it has placed on its argument. One limitation arises because Superior focuses only on intentional spoliation in its appellate brief and, therefore, has waived any issue concerning its negligent spoliation claim. See Kingsley v. Kansas Dept. of Revenue, 288 Kan. 390, 395, 204 P.3d 562 (2009) (issue not briefed by a party is deemed waived or abandoned). The second limitation arises from the statement in Superior’s appellate brief that it “is not seeking the recognition of a general tort of spoliation in Kansas, but rather submits that a cause of action should be recognized for the very particular fact scenario which exists in this case and which was left to ‘another day’ ” in Koplin. See Koplin, 241 Kan. at 213. With that focus in mind, we must determine if the district court erred in granting summary judgment in favor of the Defendants.
Standard of Review
This court’s standard of review on appeal from summary judgment is a familiar one:
“Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case.” Miller v. Westport Ins. Corp., 288 Kan. 27, Syl. ¶ 1, 200 P.3d 419 (2009).
On appeal from summary judgment, an appellate court applies the same rules as the district court, and where the appellate court finds reasonable minds could differ as to the conclusions drawn from the evidence, it must find that the grant of summary judgment was in error. Miller, 288 Kan. at 32. When material facts are uncontroverted, an appellate court reviews summary judgment de novo. Central Natural Resources v. Davis Operating Co., 288 Kan. 234, 240, 201 P.3d 680 (2009); Troutman v. Curtis, 286 Kan. 452, Syl. ¶ 1, 185 P.3d 930 (2008).
In this appeal, the facts related to the parties’ motions for summary judgment are largely uncontroverted; the only topic of dispute relates to whether the Defendants knew they were likely to become parties in asbestos litigation. Like the district court, we must view the facts in the light most favorable to Superior, and consequently we assume the Defendants knew they could become a party in some litigation.
Given this assumed knowledge, we are presented with the questions of (1) whether, under the uncontroverted facts, the Defendants had a duty to preserve the evidence — i.e., the index cards and gold sheets — under any of the circumstances recognized in Koplin, 241 Kan. 206, Syl. ¶ 2, or, if not, (2) whether we will recognize an independent tort of intentional spoliation when the claim is brought by a defendant against a codefendant or potential codefendant in an underlying lawsuit.
These questions are ones of law and are subject to de novo review. Connelly v. Kansas Highway Patrol, 271 Kan. 944, 968, 26 P.3d 1246 (2001) (on appeal from summary judgment, question of whether Kansas would recognize a tort was a question of law subject to plenary appellate review), cert denied 534 U.S. 1081 (2002); McGee v. Chalfant, 248 Kan. 434, 437, 806 P.2d 980 (1991) (existence of a legal duty is a question of law to be determined by the court); see Koplin, 241 Kan. at 207 (under K.S.A. 60-3201 etseq., certified questions may present only questions of law, meaning certified question of whether Kansas would recognize intentional spoliation under the facts was an issue of law).
Koplin v. Rosel Well Perforators, Inc.
As noted, Koplin, 241 Kan. 206, frames the issue of law that is presented in this appeal. In Koplin, a federal court certified facts and issues of law for this court’s consideration. According to the federal court’s factual statement, Koplin had suffered an on-the-job accident when a T-clamp malfunctioned. His employer, Rosel Well Perforators, Inc., destroyed the T-clamp immediately after the accident. Koplin recovered workers compensation benefits and then filed a products liability suit against several defendants. In the products liability suit, Koplin also made a claim against his employer for intentional interference with a prospective civil action by spoliation of evidence.
Analyzing the question of whether Kansas would recognize the spoliation cause of action, the Koplin court noted the tort was relatively new but had been recognized by other jurisdictions. Koplin, 241 Kan. at 208; see Edwards v. Louisville Ladder Co., 796 F. Supp. 966, 968 (W.D. La. 1992) (“Despite the fact that the origins of a tort for spoliation of evidence trace back to at least 1973 no general consensus has developed as to the basis, essential elements, or even existence of such a tort.”). In reflecting on the case law from other jurisdictions, the Koplin court discussed two distinctions that classified the cases.
The first classification arose from the traditional tort distinction between negligent and intentional actions. At the time Koplin was decided, most cases addressing the spoliation tort had dealt with the negligent destruction of evidence. As in this case, the Koplin court had not been asked to recognize the tort of negligent spoliation. Consequently, the Koplin court concluded the rationale of those decisions was not “persuasive because they are based upon negligence as opposed to an intentional interference with a third-party action.” Koplin, 241 Kan. at 210.
Turning its attention to intentional spoliation, the Koplin court, 241 Kan. at 210-12, noted there were only two jurisdictions recognizing the tort when the allegation was that the evidence had been intentionally destroyed: Smith v. Superior Court, 151 Cal. App. 3d 491, 198 Cal. Rptr. 829 (1984), disapproved by Cedars- Sinai Medical Center v. Superior Court, 18 Cal. 4th 1, 74 Cal. Rptr. 2d 248, 954 P.2d 511 (1998), and Hazen v. Municipality of Anchorage, 718 P.2d 456 (Alaska 1986). Superior relies on Smith and Hazen.
In the California case of Smith, 151 Cal. App. 3d 491, the plaintiff was injured when the rear wheel and tire flew off a van and crashed into the plaintiff s windshield. Immediately after the accident, the van was towed to the dealer that had customized the van. A few days after the accident, the dealer agreed with Smith’s counsel to preserve the physical evidence, consisting of certain automotive parts including customized wheels, for later use in a possible action against the dealer or others. The evidence was subsequently lost or destroyed, making it impossible for Smith to pursue her claim. She then sued the dealer, alleging a cause of action for “ ‘Tortious Interference with [a] Prospective Civil Action By Spoliation of Evidence.’ ” Smith, 151 Cal. App. 3d at 495.
The Smith court considered various arguments, pro and con, and ultimately concluded that a tort of spoliation was analogous to the tort of intentional interference with a prospective business advantage. That tort, the court stated, allows recovery for interference with a business relationship where the expectations of the parties are the subject of an unenforceable contract. To prove that claim, all a plaintiff was required to allege was a “reasonable probability” that a contract or profit would have resulted but for the defendant’s acts. The California Court of Appeals in Smith found that a prospective civil action in a product liability case is also a “probable expectancy” to be protected from interference. Smith, 151 Cal. App. 3d at 502. (Fourteen years after the decision in Smith and 11 years after Koplin, the decision in Smith was limited to its facts— namely, where the spoliator was alleged to have agreed to preserve the evidence — and the general tort of intentional first-party spoliation was disapproved by the California Supreme Court in Cedars-Sinai Medical Center, 18 Cal. 4th at 14 n.3, 18 n.4; see also Temple Community Hospital v. Superior Court, 20 Cal. 4th 464, 466, 84 Cal. Rptr. 2d 852, 976 P.2d 223 [1999] [disapproving of tort of intentional third-party spoliation].)
In the Alaska case of Hazen, 718 P.2d 456, the plaintiff, Penny Hazen, brought an action for intentional spoliation of evidence that she alleged would exonerate her from criminal prostitution charges. During the criminal case, Hazen learned the prosecution was relying on a conversation between Hazen and an undercover police officer who had recorded the conversation. The recording became inaudible, however, and Hazen, who alleged the recording would have documented her telling the officer that sex was not available at her massage parlor, claimed the arresting officers, the city, and the city attorney destroyed the recording to protect themselves from false arrest and malicious prosecution claims. The Alaska Supreme Court found Smith, 151 Cal. App. 3d 491, persuasive and held that Hazen had a cause of action for intentional interference with a prospective civil action by spoliation of evidence. The Hazen court stated that Hazen’s false arrest and malicious prosecution actions were valuable probable expectancies that were destroyed or diminished by the destruction of the recording. Hazen, 718 P.2d at 463-64.
The Koplin court distinguished Smith, 151 Cal. App. 3d 491, and Hazen, 718 P.2d 456, because those cases involved claims “wherein the defendants or potential defendants in the underlying case destroyed the evidence to their own advantage.” (Emphasis added.) Koplin, 241 Kan. at 213. In doing so, the Koplin court recognized the second distinction made in the case law, which classifies spoliation committed by a party to a principal or underlying lawsuit as first-party spoliation and spoliation committed by a non-party to the principal or underlying lawsuit as third-party spoliation. See Lips v. Scottsdale Healthcare Corp., 224 Ariz. 266, 267, 229 P.3d 1008 (2010); Howard Regional Health System v. Gordon, 925 N.E.2d 453, 463 n.7 (Ind. App.), transfer granted 940 N.E.2d 823 (2010). The question of whether the court would recognize first-party spoliation — i.e., spoliation by a defendant or potential defendant — was one the Koplin court concluded was not before the court because it was Koplin’s employer who had destroyed the T-clamp and the employer was not a party or potential party in the products liability suit. In other words, the question the Koplin court left “for another day” was whether it would recognize a tort of intentional first-party spoliation. See Koplin, 241 Kan. at 213.
Addressing the question presented by the facts, the Koplin court noted the employer had destroyed its own property at a time when Koplin “had no claims against his employer except pursuant to the workers’ compensation laws. There are no special circumstances or relationships which created any duty for appellee to preserve the T-clamp.” Koplin, 241 Kan. at 213. This conclusion rested on a point the court emphasized throughout the opinion: “It is fundamental that before there can be any recovery in tort there must be a violation of a duty owed by one party to the person seeking recovery.” Koplin, 241 Kan. at 212. The court noted that there was no common-law duty to preserve evidence and the employer
“had an absolute right to preserve or destroy its own properly as it saw fit. To adopt such a tort and place a duty upon an employer to preserve all possible physical evidence that might somehow be utilized in a third-party action by an injured employee would place an intolerable burden upon every employer.” Koplin, 241 Kan. at 212.
The court then analogized Koplin’s claim to Kansas case law rejecting a civil cause of action for perjury or conspiracy to commit perjury, citing Hokanson v. Lichtor, 5 Kan. App. 2d 802, 804-05, 626 P.2d 214 (1981). The Koplin court noted that the same analogy had been drawn by the dissenting judge in Bondu v. Gurvich, 473 So. 2d 1307 (Fla. Dist. App. 1984), disapproved by Martino v. Wal-Mart Stores, Inc., 908 So. 2d 342 (Fla. 2005), in which the Florida Court of Appeals allowed a spoliation claim. Specifically, the Koplin court quoted the dissenting judge in Bondu, Chief Judge Schwartz, who concluded that if an independent action is recognized for improper conduct by a party or witness, such as destroying evidence or committing perjury, “ ‘every case would be subject to constant retrials in the guise of independent actions.’ 473 So. 2d at 1313-14.” Koplin v. Rosel Well Perforators, Inc., 241 Kan. 206, 214, 734 P.2d 1177 (1987). Agreeing with that point, the Koplin court concluded the “doctrine recognized in Hokanson [that no civil cause of action for damages should be recognized for perjury or conspiracy to commit perjury by a witness or party] is sound and applies to a destruction of evidence as well as perjured testimony.” Koplin, 241 Kan. at 215. (Subsequent to the Koplin decision, the Florida Supreme Court in Martino, 908 So. 2d 342, disapproved the Florida Court of Appeals’ decision in Bondu, 437 So. 2d 1307, and this court reaffirmed the rationale of Koplin and Hokanson in OMI Holdings, Inc. v. Howell, 260 Kan. 305, 306, 315-18, 918 P.2d 1274 [1996], where we held Kansas does not recognize the independent tort of “embracery,” which means “ To influence a jury corruptly.’ [Citation omitted.]”)
The Koplin court then listed five reasons it was rejecting the tort of intentional spoliation of evidence, including:
(1) “the generation of endless litigation (as recognized by Chief Judge Schwartz in Bondu)”;
(2) “inconsistency with the intent of the workers’ compensation laws”;
(3) “rank speculation as to whether the plaintiff could have ever recovered in the underlying action and, if so, the speculative nature of the damages”;
(4) “the limitless scope of the new duty which would be created”; and
(5) “the unwarranted intrusion on the property rights of a person who lawfully disposes of his own property.” Koplin, 241 Kan. at 215.
Subsequent to the decision in Koplin, several other courts have reached the same or similar conclusions in both first-party and third-party spoliation cases. See Temple Community Hospital, 20 Cal. 4th at 476 (reiterating its reasons for rejecting first-party spoliation and concluding no tort cause of action will lie for intentional third-party spoliation because the “burdens and costs of recognizing a tort remedy for third-party spoliation are considerable — perhaps even greater than in the case of first-party spoliation”); Meridian Sec. Ins. Co. v. Hoffman Adj. Co., 933 N.E.2d 7, 14 (Ind. App. 2010) (stating that Indiana common law does not recognize an independent cause of action for intentional or negligent first-party spoliation of evidence); Meyn v. State, 594 N.W.2d 31, 34 (Iowa 1999) (rejecting negligent spoliation claim because it creates endless htigation, it is difficult to impose on a stranger to the liti gation a duty to preserve evidence, and it is speculative in nature); Teel v. Meredith, 284 Mich. App. 660, 661, 663, 774 N.W.2d 527 (2009), rev. denied 485 Mich. 1134 (2010) (observing that “Michigan does not yet recognize as a valid cause of action spoliation of evidence that interferes with a prospective civil action against a third party” and declining to recognize such an action); Timber Tech v. Home Ins. Co., 118 Nev. 630, 633, 55 P.3d 952 (2002) (weighing usefulness of spoliation claims against the burdens associated with permitting them, including “ ‘the burden to litigants, witnesses, and the judicial system’ ” imposed by “potentially endless litigation over a speculative loss, and by the cost to society of promoting onerous record and evidence retention policies”); Elias v. Lancaster General Hosp., 710 A.2d 65, 68 (Pa. Super. 1998) (expressly refusing to recognize third-party negligent spoliation claim and stating in dicta that traditional remedies adequately protect nonspoiling party in spoliation case); Austin v. Beaufort County Sheriffs Office, 377 S.C. 31, 34-36, 659 S.E.2d 122 (2008) (under the facts, declining to adopt the tort of third-party spoliation of evidence).
With this background in mind, we consider the application of these authorities to the facts of this case.
Issue 1: Contract, Assumption of Duty, or Special Relationship?
The principle underlying each of the out-of-state cases and Koplin is that there is no common-law duty to preserve evidence. Consequently, the duty must arise because of an independent tort, which we will discuss later, or because of a “contract, agreement, voluntary assumption of duty, or special relationship of the parties.” Koplin, 241 Kan. at 215. (Some states have expanded this list to include a duty based on a statute or regulation that imposes a duty to preserve documents or materials. See, e.g., Village of Roselle v. Comm. Edison Co., 368 Ill. App. 3d 1097, 1113, 859 N.E.2d 1 [2006]. Apparently because of this, the district court included statutory duties in its analysis, but this circumstance is not argued on appeal.)
Superior s first argument focuses on the list of circumstances in which Koplin held a duty would arise; Superior suggests each circumstance is applicable. Starting with whether there is a contract or an agreement, although Superior does not counter the district court’s finding that there was not an explicit contract or agreement, it suggests there was an implied agreement. Superior’s argument about the existence of an implied agreement is essentially the same argument it asserts to suggest that FK Company, through Stuerman, voluntarily assumed a duty to preserve the records when Stuerman researched records of sales and orders and provided the information to Superior in 2002. But Superior cites no authority to support these arguments. Additionally, from a factual perspective, voluntarily researching records of sales and orders and providing a summary of the information is different from either implicitly agreeing or actively undertaking to preserve records, especially for a period of 5 years after the research was performed. Without evidence of an agreement or an actual undertaking to preserve the records, Superior’s argument fails. See Restatement (Second) of Torts § 324A (1964) (duty may arise when one undertakes to render services, whether gratuitously or for consideration); see Sail v. T’s, Inc., 281 Kan. 1355, 1364, 136 P.3d 471 (2006) (“ ‘A defendant’s agreement or affirmative act indicating a willingness to provide services is a threshold requirement for such a duty to arise.’ [Citation omitted.]”); Hauptman v. WMC, Inc., 43 Kan. App. 2d 276, 301-02, 224 P.3d 1175 (2010) (stating that hospital did not, through affirmative action, assume obligation or intend to render services for benefit of employees of air ambulance service, precluding recoveiy under a negligent undertaking theory). There is no evidence of an undertaking by any of the Defendants to preserve the records.
This leaves one final categoiy, besides the recognition of an independent tort, from the Koplin list of potential sources of a duty, i.e., the existence of a special relationship between the parties. Arguing this categoiy applies, Superior suggests a special relationship was formed because (1) the Defendants and Superior were a part of the same chain of product distribution and (2) the Defendants knew Superior was involved in pending asbestos litigation and that the Defendants could potentially become involved in asbestos litigation.
Koplin did not provide a definition of the term “special relationship.” In other contexts, this court has stated that a special relationship may arise “between a parent and child, master and servant, persons in charge of one with dangerous propensities, or pérsons with custody of another.” Adams v. Board of Sedgwick County Comm’rs, 289 Kan. 577, Syl. ¶ 6,214 P.3d 1173 (2009). In addition, Kansas pattern jury instructions contain a section entitled “Special Relationships of Parties,” which identifies and addresses several categories such as agency relationships, partnerships, employer-employee relationships, independent contractors, joint ventures, fellow servants, and duties arising out of the assumption of risk. PIK Civ. 4th 107.00.
None of these relationships exists between Superior and the Defendants. Further, we know that all of these relationships are not a per se basis for creating a duty to preserve evidence because the employer-employee relationship, which arguably is most like the commercial relationship between Superior and the Defendants, did not create a duty to preserve evidence in Koplin, 241 Kan. at 213. Moreover, none of these sources explicitly or implicitly support Superior’s argument that an arms’ length commercial relationship or chain-of-product-distribution relationship is a “special relationship.” Superior does not cite any other authority specifically supporting the conclusion that a chain-of-product-distribution relationship is sufficient to create a duty to preserve evidence. In fact, it concedes it can find no such case.
Without persuasive or controlling authority suggesting a chain-of-product-distribution relationship gives rise to a duty, we have considered the various policy reasons cited by the Koplin court for rejecting the tort in a third-party setting and have concluded each of those reasons, except interference with workers compensation laws, counters Superior’s argument. Specifically,
(1) endless litigation would be generated;
(2) rank speculation would be required as to (a) whether the evidence would have affected the underlying action, (b) whether the complaining party would have prevailed, and (c) the amount of damages that would have been recovered;
(3) the scope of the duty would be limitless; and
(4) there would be an unwarranted intrusion on tire property rights of a person who lawfully disposes of his or her own property. See ■Koplin, 241 Kan. at 215.
As to this last reason, if we were to recognize a duty to preserve evidence by all those who stand at a point in the stream of commerce, the duty would extend to those upstream as well as those downstream. The result would be a far-reaching duty, and one of the factors weighed by the Koplin court would be extremely relevant: A rule requiring preservation of evidence would create an intolerable burden of requiring most businesses to preserve all records. See Koplin, 241 Kan. at 212. As the Koplin court noted, such a duty would be “limitless.” Koplin, 241 Kan. at 215.
These reasons cause us to conclude that simply being in the chain of distribution of a product or in the stream of commerce, without more, is not a special relationship that gives rise to a duty to preserve evidence.
Issue 2: Is This the Narrow Case Left for Another Day?
Having concluded the circumstances listed in Koplin that give rise to a duly to preserve evidence do not apply in this case, we must consider Superior’s alternative argument that this case presents the issue we left for another day in Koplin when we reserved the question of whether Kansas will recognize an independent tort imposing liability on “defendants or potential defendants in the underlying case [who] destroyed the evidence to their own advantage.” Koplin, 241 Kan. at 213. The Defendants argue and the district court concluded that the question need not be answered in this case because the facts do not fit within the reserved question. Rather, the district court concluded a spoliation claim between those who are codefendants or potential codefendants in an underlying action was not included in the reserved question and should not be allowed. Consequently, the preliminary step of our analysis is whether the Koplin decision includes spoliation claims arising between those who are codefendants or potential codefendants in the underlying action.
As phrased in Koplin, the reserved question encompasses two groups: (1) defendants in an underlying lawsuit and (2) potential defendants in an underlying lawsuit, where it is the plaintiff in the underlying lawsuit making the spoliation claim against those defendants or potential defendants. In the present lawsuit, it is uncontroverted that the Defendants were not a party to any underlying litigation when they destroyed the records. But Superior argues the Defendants were potential defendants in a lawsuit that Superior or others might bring. To establish this point, Superior provided the district court with a civil complaint in which a plaintiff claiming asbestos-related injuries sued some of the Defendants. In that action, the plaintiff also asserted a negligent spoliation claim against FK Company. That claim fits the prototype of first-party spoliation claims, i.e., spoliation claims brought by the plaintiff in the underlying action. Koplin, 241 Kan. at 207; Rizzuto v. Davidson Ladders, Inc., 280 Conn. 225, 245-48, 905 A.2d 1165 (2006); see, e.g., Fletcher v. Dorchester Mutual Insurance Company, 437 Mass. 544, 546, 773 N.E.2d 420 (2002). If that action had been filed in Kansas, it would present the classic, first-party spoliation claim that was clearly reserved in Koplin. In that situation, however, Superior would not have a right to recover for damages incurred by the plaintiff who incurred personal injury from asbestos exposure and who also claimed damages caused by FK Company’s destruction of its business records. Rather, Superior must establish a causal relationship between the destruction of the records and any alleged damages to Superior. See Foster v. Lawrence Memorial Hosp., 809 F. Supp. 831, 836 (D. Kan. 1992) (identifying elements of spoliation tort, including damages and causation).
In contrast, the spoliation claim in the present case is made by a defendant in the underlying suit against a potential codefendant in the underlying suit. Despite this difference between this case and the classic, first-party spoliation case, Superior argues the phrase “potential defendant” is broad enough to incorporate claims between codefendants and Koplin can be read to have contemplated such a situation. Furthermore, Superior suggests that the Koplin court strongly implied we would recognize the breach of such a preservation duty as a first-party spoliation claim and would recognize a right to recover damages. See Foster, 809 F. Supp. at 838 (concluding that “[w]hile Koplin did not recognize the intentional tort of spoliation under the facts of that case, a fair reading of the case indicates that the tort would be adopted under certain factual scenarios”).
We disagree with these arguments because statements in Koplin suggest otherwise. For example, when distinguishing Smith v. Superior Court, 151 Cal. App. 3d 491, 198 Cal. Rptr. 829 (1984), and Hazen v. Municipality of Anchorage, 718 P.2d 456 (Alaska 1986), the Koplin court noted those cases related to “evidence [that] was destroyed by the adverse party in pending litigation to the direct benefit of such party.” (Emphasis added.) Koplin, 241 Kan. at 212.
Nevertheless, Superior’s arguments also suggest that even if the court in Koplin did not contemplate the situation presented in this case, we should now recognize an independent tort applicable in such circumstances. To further this argument, Superior contends it has a potential first-party spoliation claim because it might assert a cross-claim against the Defendants in underlying litigation, a third-party claim in underlying litigation, or a comparative implied indemnity claim in a collateral action. To illustrate that a comparative implied indemnity claim is a possibility, Superior cites Blackburn, Inc. v. Harnischfeger Corp., 773 F. Supp. 296 (D. Kan. 1991).
Blackburn arose after an employee was injured by a defective crane and sued the crane’s owner, his employer, and the crane’s manufacturer. After the employer settled the claim with the employee, the owner sued the crane manufacturer based on a theory of comparative implied indemnity under Kennedy v. City of Sawyer, 228 Kan. 439, 618 P.2d 788 (1980). The federal district court held that the employer could bring the comparative implied indemnity claim against the manufacturer. Blackburn, 773 F. Supp. at 299-300.
Superior contends it could have a similar claim against the Defendants. We note that because Superior’s arguments suggest such a claim could be brought even if the Defendants were not named as parties in an underlying suit, it raises issues of first impression. See Dodge City Implement, Inc. v. Board of Barber County Comm’rs, 288 Kan. 619, 632, 637, 205 P.3d 1265 (2009) (reconciling one-action rule in context other than chain of distribution and concluding Kennedy must be read in the context of its factual situation, i.e., chain of distribution/indemnification with all those in chain named as a party in underlying action). We need not sort out these issues, however. Instead, considering that we must accept the facts in the light most favorable to Superior, we will also accept the possibility of its asserted legal theories. In doing so, we note that any such claims based on these legal theories would arise because Superior and the Defendants are codefendants or potential codefendants/indemnitors. Accepting that a potential claim against the Defendants was foreseeable, we will consider Superior’s suggestion that a preservation duty arises. To support the argument, Superior relies on several federal cases and also raises a policy argument.
A number of the federal decisions that Superior cites considered whether a court could impose discovery sanctions when a party had destroyed evidence at a time when the party “knew or should have known that the destroyed evidence was relevant to pending, imminent or reasonably foreseeable litigation.” Shamis v. Ambassador Factors Corp., 34 F. Supp. 2d 879, 888-89 (S.D.N.Y. 1999); see also John B. v. Goetz, 531 F.3d 448, 458-59 (6th Cir. 2008) (discovery sanctions may be imposed for destruction of evidence if party has notice that the evidence is relevant to litigation); Fujitsu Ltd. v. Federal Exp. Corp., 247 F.3d 423, 436 (2d Cir. 2001) (same); KCH Services, Inc. v. Vanaire, Inc., No. 05-777-C, 2009 WL 2216601, at *1-2 (W.D. Ky. 2009) (considering sanctions and appropriateness of adverse inference instruction when filing of suit gave notice that evidence was relevant). Suggesting a similar test applies, Superior argues the Defendants should have recognized that a claim against them was reasonably foreseeable.
In addition, Superior cites a case that did not deal with discoveiy sanctions, Lewy v. Remington Arms Co., Inc., 836 F.2d 1104 (8th Cir. 1988), to suggest a duty arose. Lewy involved a direct appeal from a jury verdict in a products liability case. The appellate court found error on an issue not relevant to our discussion, remanded the case for a new trial, and provided guidance to the trial court on an issue that arose because the defendant had destroyed records. That issue was whether the trial court erred in instructing the jury that “ ‘[i]f a party fails to produce evidence which is under his control and reasonably available to him and not reasonably available to the adverse party, then you may infer that the evidence is unfavorable to the party who could have produced it and did not.’ ” Lewy, 836 F.2d at 1111 (quoting 3 Devitt, Blackmar & Wolff, Federal Jury Practice and Instructions § 72.16 [4th ed. 1987]). On appeal, the defendant argued the instruction should not have been given because the evidence had been destroyed pursuant to a longstanding record retention policy. The appellate court determined it could not resolve the question on the record before it but opined that blind adherence to a retention schedule was not the only consideration when numerous consumer complaints had been filed regarding a product. The appellate court directed that on remand the trial court should “consider whether lawsuits concerning the complaint or related complaints have been filed, the frequency of such complaints, and the magnitude of the complaints” when deciding if it was appropriate to give the instruction. Lewy, 836 F.2d at 1112. Superior compares the number, frequency, and magnitude of the asbestos complaints and litigation to argue the Defendants should be held liable for damages for destroying the records.
We reject this argument because the cases are distinguishable from this case and the holdings advance different policy considerations from those that apply when considering if an independent tort should be recognized. Most significantly, these cases are distinguishable because they involve one party in a case seeking sanctions against an adverse party in the underlying fitigation. Second, while the cases focus on actions taken while the spoliator was merely a potential defendant, in each case the spoliator became an actual defendant. Third, the party’s duty to preserve records and the court’s power to impose sanctions and other remedies in those cases arose primarily from the rules of civil procedure and from the court’s inherent power to control fitigation before it. See Zu bulake v. UBS Warburg LLC, 220 F.R.D. 212, 216 (S.D.N.Y. 2003). These sources relate to adverse parties in the underlying litigation and do not suggest a duty that can be the basis for an independent tort between codefendants or potential codefendants.
Moreover, Superior cites these cases for their definition of foreseeability. But we have accepted that it was foreseeable that the Defendants could be involved in litigation where the destroyed evidence would be relevant. Foreseeability is only one of the elements necessary to establish an independent tort of spoliation, however. This concept was explained by the Illinois Supreme Court:
“As a general rule, there is no duty to preserve evidence. [Citation omitted.] However, . . . the existence of two elements will create a duty. First, a duty to preserve evidence may arise through an agreement, a contract, a statute, or another special circumstance, or where a defendant voluntarily assumes a duty by affirmative conduct. [Citation omitted.] This element is commonly referred to as the ‘relationship prong.’ [Citation omitted.] Once a plaintiff proves the relationship prong, the plaintiff must establish the ‘foreseeability prong.’ [Citation omitted.] That is, the plaintiff must demonstrate that a reasonable person in the defendant’s position should have foreseen that the evidence was material to a potential civil action, and the pleadings must allege facts describing such circumstances. [Citation omitted.] In the absence of either the relationship or the foreseeability prong, there is no duty to preserve evidence. [Citation omitted.]” Village of Roselle, 368 Ill. App. 3d at 1113.
See Glotzbach v. Froman, 854 N.E.2d 337, 341 (Ind. 2006) (“ ‘Mere ownership of potential evidence, even with knowledge of its relevance to litigation, does not suffice to establish a duty to maintain such evidence.’ ”) This rationale melds well with our Koplin analysis, where this court did not focus on foreseeability but on the existence, or lack thereof, of a duty to preserve the evidence. See Koplin, 241 Kan. 206, Syl. ¶ 1.
In addition, the policy concerns raised in these federal cases are different from those considered in Koplin v. Rosel Well Perforators, Inc., 241 Kan. 206, 212-15, 734 P.2d 1177 (1987), and by other courts deciding if an independent tort should be recognized. In fact, the availability of remedies — sanctions and an adverse evidentiary inference — in the underlying litigation is a factor that most courts have cited as a reason for not recognizing the independent tort of first-party spoliation. For example, in Cedars-Sinai Medical Center v. Superior Court, 18 Cal. 4th 1, 17, 74 Cal. Rptr. 2d 248, 954 P.2d 511 (1998), the court stated these “remedies will in most cases be effective at ensuring that the issues in the underlying litigation are fairly decided.” The court concluded that imposing these remedies in the underlying litigation was preferable to “opening up the decision on the merits of the underlying causes of action to speculative reconsideration regarding how the presence of the spoliated evidence might have changed the outcome.” Cedars-Sinai Medical Center, 18 Cal. 4th at 17. Such an independent tort remedy, the court concluded, “would not only create a significant risk of erroneous findings of spoliation liability but would impair the fundamental interest in the finality of adjudication and the stability of judgments.” Cedars-Sinai Medical Center, 18 Cal. 4th at 17.
One policy concern is common to both cases discussing an independent tort and those discussing remedies such as sanctions. That concern is punishing a party who has weakened the integrity of the truth-seeking process of litigation. Superior argues this policy compels recognition of an independent tort. It asserts this policy becomes a primary consideration in products liability types of cases. Relying on the holding in Blackburn, 773 F. Supp. 296, that comparative implied indemnity could apply to those in a product’s chain of distribution, Superior emphasizes the goals of spreading risk in the context of products liability and of ensuring full recovery for injured plaintiffs. Superior argues these goals would not be advanced by allowing potential defendants to destroy evidence at the first sign of litigation. According to Superior, if this court does not recognize a spoliation tort under these circumstances, potential tort defendants will be encouraged to “make a mad dash [to] the nearest document shredder upon realizing their potential liability.” Superior also fears that attorneys representing such potential tort defendants will be “encouraged to advise their clients to engage in that veiy same pursuit.” In this vein, Superior asserts that notions of fairness and equity should provide a remedy for Superior whose interests suffered damages due to the “irresponsible and self-serving conduct” exhibited by the Defendants.
We do not disagree with the spirit of this argument. The Supreme Court of California explained it well when it stated:
“No one doubts that the intentional destruction of evidence should be condemned. Destroying evidence can destroy fairness and justice, for it increases the risk of an erroneous decision on the merits of the underlying cause of action. Destroying evidence can also increase the costs of litigation as parties attempt to reconstruct the destroyed evidence or to develop other evidence, which may be less accessible, less persuasive, or both.” Cedars-Sinai Medical Center, 18 Cal. 4th at 8.
But in the veiy next sentence the court stated: “That alone, however, is not enough to justify creating tort liability for such conduct.” Cedars-Sinai Medical Center, 18 Cal. 4th at 8. After weighing tírese concerns against the costs and burdens that would be imposed by recognizing an independent tort of spoliation, the California court held it would not recognize a tort remedy for the intentional destruction of evidence by a party to litigation when the spoliation was or should have been discovered before the conclusion of the litigation. Cedars-Sinai Medical Center, 18 Cal. 4th at 17-18.
The Koplin court similarly weighed the policy rationale of preserving evidence against the burdens caused by imposing a preservation duty on a third party and concluded that imposing a duty to preserve “all possible physical evidence” would be an “intolerable burden” on the right of a property owner. Koplin, 241 Kan. at 212. The same concerns arise in a case such as this where a claim is brought by one defendant in an underlying action against a potential codefendant in the underlying action.
In addition, the weight of authority is contrary to Superior s argument. Superior candidly concedes it has found no case in which a court has recognized an independent tort in an action between those who were codefendants or potential codefendants in an underlying action. On the other hand, some courts have refused to recognize the tort in these circumstances. For example, in Timber Tech v. Home Ins. Co., 118 Nev. 630, 633, 55 P.3d 952 (2002), a subcontractor that had installed trusses for a ceiling, after settling with those injured when the roof collapsed, sued the contractor and others alleging spoliation because the ceiling debris had not been preserved. Tbe subcontractor argued it could not prove it was not responsible for the collapse because the debris was central to its defense. The Nevada court refused to recognize the independent tort of spoliation and also rejected a claim for negligence, concluding the contractor did not owe a duty to preserve the evidence. Timber Tech, 118 Nev. at 633-34. Similarly, in Temple Community Hospital v. Superior Court, 20 Cal. 4th 464, 466, 84 Cal. Rptr. 2d 852, 976 P.2d 223 (1999), the plaintiff, a patient who was severely burned during surgeiy when a medical device ignited flammable gases, sued the hospital for spoliation of evidence after her personal injury action against the device’s manufacturer was unsuccessful because the hospital had destroyed the device and some records. The California Supreme Court refused to recognize a third-party spoliation claim related to the plaintiff s product liability action, even though the potential existed for claims against the hospital, albeit on a different theory of recovery, at the time it destroyed the evidence. Temple Community Hospital, 20 Cal. 4th at 469-78. These and other cases arose in situations where the spoliator was a potential codefendant; yet a duty to preserve the evidence was not recognized.
In treating the relationship of a potential defendant as a third-party spoliation situation, the California Supreme court in Temple Community Hospital, 20 Cal. 4th at 472-76, discussed many of the same policy considerations as were listed by this court in Koplin when it refused to recognize an independent tort of third-party spoliation. Many of these policy considerations were emphasized by the district court and by the Defendants.
For example, Defendants Stuerman and FK Company, in their appellate brief, emphasize that a codefendant relationship is unique and raises different policy concerns than those raised in other cases. They suggest that when someone who is not a party to litigation destroys potential evidence on its own initiative and that evidence has not been subpoenaed by the district court, “it requires massive degrees of speculation to conclude that a defendant [in the underlying lawsuit], who does not have the burden of proof, has suffered significant harm.” The district court agreed with this point. We also agree that this consideration is valid, distin guishes this case from the others we have discussed, and raises the same or similar policy concerns to those discussed in Koplin.
Further, in Defendant Kimball’s appellate brief he points out that in Superior’s response in opposition to Kimball’s motion and memorandum for summary judgment, Superior acknowledged that it possesses “some but not all of the purchase orders and invoices” containing the names of products purchased by Superior from the Defendants, the dates of purchase, and the quantities purchased. Superior has provided no explanation for why it does not have information about all of its orders with the Defendants, and we can imagine no legal or policy reason to impose a duty on the Defendants to preserve information that Superior could have preserved. In addition, the information about which products did or did not contain asbestos is potentially available from another codefendant, Plibrico. See Dillon v. Nissan Motor Co., Ltd., 986 F.2d 263, 267-68 (8th Cir. 1993) (considering plaintiffs’ claims that the nonspoliating party was not prejudiced because there was ample evidence available for the defendant to use in defending against the design defect claim).
We note these points to underscore the difficulty of pinpointing the prejudice that might arise from the unavailability of evidence when that prejudice is assessed in a collateral proceeding between codefendants that created or had access to various records that would be used to defend a principal or underlying htigation. A defendant in the underlying htigation would not have the burden of proof, and it would be difficult, if not impossible, to assess the damages. Another pohcy issue that would arise if we were to recognize a tort between codefendants or potential codefendants, including those who could bring claims of comparative implied indemnity, is the possibility that parties on both sides of the underlying htigation — i.e., the plaintiff and the spoliators codefendant — may be injured by the spoliator's single act of destroying evidence, thereby giving rise to two claims with potentially inconsistent or duplicative verdicts. See Temple Community Hospital, 20 Cal. 4th at 478. Finally, we note that the pohcy concerns that led us to hold a duty did not arise because of a chain-of-product-distribution relationship would also be raised by recognizing an independent tort between codefendants: (1) endless litigation would be generated; (2) rank speculation would be required as to (a) whether the evidence would have affected the underlying action, (b) whether the complaining party would have prevailed, and (c) the amount of damages that would have been recovered; (3) the scope of the duty would be limitless; and (4) there would be an unwarranted intrusion on the property rights of a person who lawfully disposes of his or her own property. See Koplin, 241 Kan. at 215.
Consequently, we conclude that an independent tort of spoliation will not be recognized in Kansas for claims by a defendant against codefendants or potential codefendants, including potential indemnitors under a theoiy of comparative implied indemnification.
Affirmed.
Biles, J., not participating.
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The opinion of the court was delivered by
Bjkgman, C. J.:
The defendant in error appealed from the determination of the county commissioners of Bourbon county as to the value 'of the land appropriated by the plaintiff in error for a right of way through the land of the appellant. A trial was had in the district court at the June Term, 1870, which resulted in a verdict for defendant in error. The verdict was set aside and a new trial awarded. This trial took place in November, 1870, and the verdict was for the same party; and on this last verdict judgment was entered. During the proceedings a number of rulings were made which were excepted to by plaintiff in error, who now brings the case to this court and asks a reversal for the errors in the several rulings so excepted to.
I. The appeal bond was approved by the county clerk. This was correct. The report of the commissioners was in his office. Until it was so filed the owner of the land could not know what the determination of the commissioners had been, so as to decide whether he would appeal or not. When the papers were filed in the clerk’s office, he, as custodian of them, was the proper person to approve the bond, not the commissioners who had separated and were in different parts of the county, and had no fixed office or place of official business.
II. The proceedings in the district court were entitled “Risdon Owen v. The Missouri River Ft. Scott and Gulf Railway Company.” Plaintiff in error moved to dismiss because the case was wrongly entitled. If true this was no cause for dismissal, only to correct the title of the action, (see code, § 110,) and is no cause for a reversal. But we think the case was rightly entitled.
III. After the jury were sworn the court allowed the plaintiff to sign his amended petition, to which objection was made, and defendant then asked ten days to answer further, which was refused. The petition had been filed for months. To make a clear record it should have been signed, but as the issues were made up on it, the error was not of any consequence. The ruling of the court was correct. The demand for time to answer was frivolous and ought to have been denied.
IK. On the trial the court permitted Owen to introduce in evidence the report of the commissioners in the condemnation proceedings, and the accompanying map; each was separately objected to. It is not apparent how else Owen could get before the jury just what part of his land had been appropriated for, the railroad. This was the legal evidence of that fact — a record made by request of plaintiffs in error of what land had been attempted to be condemned. If it was not the only evidence of tliat fact, it was the best, and was therefore properly admitted.
Y. The witness Caldwell was asked if he knew the land of Owen. He answered, “that portion of it which was south of Marmaton river, amounting to about fifteen acres.” He was then asked the value of this fifteen acres just before and just after the location and construction of the railroad. This question was objected to and the objection overruled. Whether it was answered or not is not stated. We will not stop to examine the propriety of a question when it does not appear to have been answered, for if the question was improper, and the answer, if one was given, did not injure plaintiffs in error, it would be no cause of error. The witness may not have known anything about the value of the land and have so answered.
YI. The plaintiff himself testified that he had occupied both quarters of the land for about eleven years, and that before his occupation of the same, the quarter in section eight had been occupied by Andrew Eiggs, and that the quarter in section seventeen had been occupied by Harrison’ Martin; and that Eiggs and Martin had each occupied their respective quarters about eighteen months or two years before he took possession. Plaintiff’s counsel then asked him of whom he obtained the quarter in section seventeen, and Owen said in reply he “got it of Harrison Martin and entered it.” Defendants’ counsel asked that the statement be. excluded from the jury. This was refused. It was a direct answer to the question, and an appropriate one; and the question itself should have been objected to. The evidence certainly did not show title; and a glance at the instructions reveals the fact that it was not so considered by the court or parties.
YII. The witness Cole was asked the value of the land occupied by Owen in “ section eight ” as set forth in the petition, just before and just after the construction of the railroad through it, to which he answered, that “it was worth §25 per acre jxist before, and $10 less per-acre just after.” The question was correct, and not objected to. The answer was equiv alent to saying that the land was worth $25 per acre just before the construction of the road, and $15 per acre just after, which brings it clearly within the rule laid down in Cleveland & Pittsburgh R. R. Co. v. Ball, 5 Ohio St., 574, and Atlantic & Great Western R. R. Co. v. Campbell, 4 Ohio St., 583, cited by plaintiff in error.
Till. Plaintiff offered in evidence a deed with covenants of general warranty from Andrew Riggs to himself for the quarter in section eight dated December 11th, 1861, and filed for record andrecorded June 4th, 1870. Defendants objected to the reading of this deed in evidence because it showed no legal title at the time of condemnation. The deed conveyed the property from the time of its delivery, and not from the date of its recording, and therefore was properly read in evidence.
IX. It should be understood that but little of the evidence is preserved in the recor.d, and only a part of the instructions are incorporated therein. The plaintiffs in error asked two instructions, but whether they were applicable to the evidence we cannot say, as there is no evidence preserved that would make them applicable.
X. The court among other charges gave the following: “To entitle the plaintiff to a verdict in this case it must appear to you from the evidence that at the time of the appropriation by the defendant of the light of way through the lands in the plaintiff’s petition set forth, the plaintiff had some ownership, some estate in said lands. If the evidence shows that at the time of such appropriation, and for eight or ten years previous thereto, the plaintiff was in the actual and exclusive possession and occupancy of said lands, under a claim of absolute title thereto, this is evidence tending to show a title in fee simple in the plaintiff; and if there is no evidence tending to show any adverse title, it is sufficient for the jury to infer therefrom that the plaintiff was the owner in fee of said lands.”
The court then instructed the jury “that if they found for the plaintiff they would assess his damages as of the time of the appropriation, with interest thereon at seven per cent per annum from the time of the appropriation.”
These are all the instructions that appear in the record, although it appears that others were given. What effect they might have on those given as modifying them we cannot know, nor is it material. To the first paragraph quoted above there is no objection. The second it is insisted is not the law. Whether it was the law of the case, and applicable to the subject-matter of the action, will now be examined. In the proceedings to procure condemnation the corporation is the actor. It applies to the county commissioners to lay off the route as desired by the corporation, and to fix the value of the land ' which the corporation desires to appropriate, and assess the damages arising from the appropriation. The corporation is the moving cause, and the proceedings by the commissioners are all at its instance, and in its interest, and for its benefit. The object is to compel an unwilling land-owner to part with his property for a just compensation. The corporation is to give written notice to all actual occupants of the land over which the route of the road is designated, where the land has not been purchased by or donated to the company: § 49, p. 203, Gen. Stat. Before the board acts, notice is to be published in a newspaper: § 86, p. 213; and it is also made the duty of the board to appraise and value and assess the damages of each owner separately when there appears to be different interests in the land: § 82, p. 212. In all the proceedings up to the filing of the report the steps are at the peril of the company. While, from the fact that the occupant is entitled to notice, and all ■ others interested are notified by the publication required, it is apparent that those interested in the land may appear if they choose before the commissioners to protect their interests, they are under no obligations to do so, and nothing like a default can be taken against them. If in the discharge of their duties the commissioners err as to the ownership of the land, can it be supposed that the company, by following the error, and paying the wrong person, relieves itself from the obligation to pay the real owner of the land? Land-owners are not compelled to stand by with their title-papers in their hands. The company does not act under any different rules than those that govern any land-buyer. If he buys from the wrong person lie does so at Ms peril. It is the duty of the railroad company to ascertain who are the owners of the land it desires to appropriate, and it is at the risk of the company that it pays for the land. Such being the state of the case, and the obligation of the company, where no appeal is taken, what change is wrought by the appeal? The law is, that “an appeal shall be had from the determination of the commissioners as to the value of the land so appropriated:” § 86, p. 213, Gen, Stat. This is the main iséue to be tried. It is probably true that by appropriate pleadings the company would be authorized to show that the appellant did not own the entire land, but that a separate interest is in another, or that some one else owned all the land. But unless such an issue is made by the pleadings, the position of the appellant as to the question of title is not different from what it was before the appeal was taken. The appellant is placed by the law, and by his own action in taking the appeal, in the position of saying: “The appraisement of my land and thp assessment of damages made by the commissioners is too small; I desire a retrial of that issue in the district court.” Is ho bound to show a perfect legal title, such as would entitle him to recover in ejectment ? We think not. He was not attempting to recover money of the company. He proved that he was in the occupancy of the land, claiming absolute title. This is prima faeie evidence of title to land everywhere, as well as to personal property: 2 Greenl. Ev., § 555; Ward's Heirs v. McIntosh, 12 Ohio St., 231. It is enough to sustain trespass and to resist a recovery in ejectment until a perfect legal title is shown. Hiat is, an actual possession under a claim of absolute title is prima facie evidence of seisin in fee simple,, and sufficient till the contrary appears. If this be so, then the instruction complained of is correct. We have not failed to notice the case of Robbins v. Milwaukee & Horicon R. R. Co., 6 Wis., 636, where a contrary doctrine is maintained, and perhaps correctly in that state. Certainly it is not convincing to us as applicable to the law of this state; and so far as we can see, the case stands alone, and unsupported by authoritv. Cases undei laws tbat admit tbe taking without compensation being first made, and authorize the owner to initiate proceedings'to recover damages, are not applicable to our laws. Under our constitution the owner of the land may remain silent till full compensation is made him. Until such compensation is made, no right of way is obtained. A different rule may well apply where the right of way is first appropriated, and the owner of the land left to seek his remedy if he chooses by proving his rights and the injury to them.
XI. It was right to give interest from the time the land was appropriated, and would have made no difference that the company had deposited the amount of the valuation and assessment with the treasurer of the county. The appellant ought not to have accepted the benefit of the adjudication of the commissioners and yet to have alleged it to be erroneous.
We have examined the various rulings of the court, so far as they are material; and finding no error therein the judgment is affirmed.
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The opinion of the court was delivered by
Luckert, J.:
This appeal raises the issue of whether there was sufficient evidence to support a district court’s determination that an individual is a sexually violent predator pursuant to the Sexually Violent Predator Act (SVPA), K.S.A. 59-29a01 et seq. The Court of Appeals held the evidence was insufficient and reversed the district court, at least in part because the individual had scored less than 50 percent in all but one category on actuarial tests designed to predict the probability that a person with the individual’s characteristics would commit a sexually violent act in the future. In re Care & Treatment of Williams, No. 99,235, 2009 WL 2762455, at *3 (Kan. App. 2009) (unpublished opinion).
Seeking a reversal of this ruling, the State argues the Court of Appeals ignored and reweighed evidence. Specifically, the State argues the Court of Appeals put undue weight on actuarial test scores, ignored the diagnosis of the State’s expert that the individual suffered from antisocial personality disorder and paraphilia “Not Otherwise Specified,” and ignored the expert’s opinion that the individual is a sexually violent predator. The State argues the expert’s opinion and the various factors on which it was based, when viewed in the light most favorable to the State, were sufficient for us to conclude a reasonable person could find that the State proved beyond a reasonable doubt that the respondent is a sexually violent predator.
We agree and affirm the district court and-reverse the Court of Appeals.
Factual and Procedural Background
The procedural history of this case is straightforward. Darwin C. Williams was convicted in 1987 of two counts of indecent liberties with a child pursuant to K.S.A. 21-3503 and was sentenced to 5 to 20 years. In May 1999, Williams was paroled, but just 6 months later his parole was revoked because of drug use. After serving more time in prison, Williams was paroled again in June 2002, but that parole was revoked approximately 6 months later in January 2003. The basis for the second parole revocation was explained during the SVPA trial when the State’s expert read from a portion of a Department of Corrections’ Clinical Services Report (CSR) dated September 8,2006. The CSR indicated that Williams’ parole was revoked “ ‘for having sexual contact with a minor, consuming alcohol, unsuccessful discharge from SOTP [Sex Offender Treatment Program], and admitting to viewing pomographic/sexually explicit materials.”
As Williams’ prison term neared its end, the State filed a petition requesting the civil commitment of Williams as a sexually violent predator. The district court determined that probable cause existed for the allegation and sent Williams to the Lamed State Security Hospital for evaluation. The district court also appointed a psychologist to perform an independent evaluation pursuant to K.S.A. 59-29a06(b). After being evaluated by two professionals, Williams appeared in district court and waived his right to a jury trial.
At the bench trial, the two experts gave conflicting opinions regarding whether a mental abnormality or personality disorder makes Williams likely to repeat acts of sexual violence. Dr. John Reid, a psychologist and supervisor at Lamed State Security Hospital, testified for the State. The other expert was Dr. Robert Barnett, the clinical psychologist and board certified forensic psychologist who had been appointed by the district court. Dr. Barnett had previously worked for the Department of Corrections as chief psychologist, evaluating inmates and supervising other psychologists, and in that capacity had previously evaluated Williams. Both experts also provided written psychological evaluations of Williams.
State’s Expert Opines Williams is a Sexually Violent Predator
The State’s expert, Dr. Reid, testified to his experience and the assessment tools he used in evaluating Williams. He indicated he had performed 17 or 18 prior sexual predator evaluations and had concluded that 60 to 65 percent of those individuals were not sexual predators. Focusing on his evaluation of Williams, Dr. Reid explained that, among other tests, he used the Minnesota Sex Offender Screening Tool-Revised (MnSOST-R) and the Static-99 test. Both assessment tools are designed to measure the risk of sexually violent recidivism. On the MnSOST-R, Williams scored in the Level 2, moderate category for sexual recidivism with a 29 percent risk of reoffending. On the Static-99, he scored in the moderate to high risk category with a sexual recidivism risk of 33 percent within 5 years, 38 percent within 10 years, and 40 percent within 15 years. His violence recidivism was scored at 42 percent within 5 years, 48 percent within 10 years, and 52 percent within 15 years.
Dr. Reid also testified to the opinion he formed based on his evaluation of Williams. Dr. Reid concluded Williams’ intellectual functioning is “borderline.” As to a diagnosis of Williams’ mental condition, Dr. Reid opined that Williams suffers from alcohol dependence, substance abuse, exhibitionism, and paraphilia “Not Otherwise Specified” (paraphilia NOS). Dr. Reid explained that paraphilia NOS is a diagnosis of sexual acting out with underage individuals though they are not considered children. “One might also call it ‘with hebephilia tendencies,’ meaning adolescents.” In addition, Dr. Reid diagnosed Williams with antisocial personality disorder. In Dr. Reid’s opinion, the paraphilia NOS and antisocial personality disorder predispose Williams to commit sex offenses.
Dr. Reid testified that he based his opinion, in part, on consideration of Williams’ past behavior and treatment, which were reported in the Department of Corrections’ records. Specifically, Dr. Reid noted that Williams reoffended in 2002, even after he had received sexual offender treatment. He opined that Williams’ repeated attempts at sex offender treatment and his disciplinary reports from the Department of Corrections were problematic.
Dr. Reid also based his opinion on his interview with Williams. Specifically, Dr. Reid noted that he had asked Williams to describe his internal and external triggers for sexual arousal and interaction with underage individuals. Listing external triggers, Williams included “ ‘school yards, shopping malls, . . . playgrounds, skating rinks, [and] pool halls.’ ” The internal triggers Williams listed included “ ‘rejection, idle time, bars, [and] using alcohol and drugs.’ ” Defense’s Expert Opines Williams Is Not a Sexually Violent Tredator
Williams presented the testimony of the other expert, Dr. Barnett, who did not classify Williams as a sexually violent predator. Dr. Barnett testified that in addition to performing a psychological evaluation on Williams, he reviewed Williams’ entire history and examined Dr. Reid’s written evaluation. Dr. Barnett opined that Williams has a learning disorder, as opposed to borderline intellectual function. Dr. Barnett also disagreed with Dr. Reid that Williams suffers from antisocial personality disorder. He did not see in Williams the lack of empathy and lack of conscience generally associated with this disorder. Dr. Barnett found, instead, that Williams suffers from alcohol and substance abuse, and he stressed the importance of Williams’ total abstinence from those.
Dr. Barnett questioned the effectiveness of the MnSOST-R and the Static-99 in that such tests do not take into account the length of incarceration or mental health/sexual treatment received by the offender. Dr. Barnett was also critical of the MnSOST-R and the Static-99 because those tests do not include a checklist for predicting psychopathy or a penile plethysmograph to measure arousal to deviant stimuli. As for Williams’ alleged exhibitionism and paraphilia NOS, Dr. Barnett indicated there was no pattern or histoiy to establish exhibitionism and that Dr. Reid’s diagnosis of paraphilia NOS was too general.
On cross-examination, however, Dr. Barnett acknowledged that he had signed a Department of Corrections evaluation report in the 1980’s, which indicated Williams’ diagnosis as atypical paraphilia and sexual compulsion. Also, with regard to Williams’ alcohol and substance abuse problems, Dr. Barnett acknowledged that it would “be disingenuous ... to say that he wouldn’t be at greater risk for a sex offense if he were drinking again.” Dr. Barnett characterized Williams’ sex crimes as “opportunistic.”
Williams’ Testimony and Other Evidence
Williams testified on his own behalf, explaining that he had a parole plan in place. During questioning, Williams admitted to several instances of sexual contact with minors, including both charged and uncharged conduct. As to charged conduct, Williams made admissions regarding the two incidents leading to his convictions. On one occasion he used alcohol to bribe a 16-year-old boy into an abandoned house where he sexually assaulted him. On another occasion he coaxed a 12-year-old boy into a garage by falsely telling him there were puppies inside, sexually assaulted him, and threatened to bum down the boy’s house if he told anyone. In addition to these charged instances, Williams admitted he had fondled his 6-year-old niece.
Also, Williams was asked about the incidents that led to his parole revocation. The first revocation occurred for drug use that was discovered by his parole officer after Williams was arrested for an incident that started when he met a man at a bar. Although the parole revocation was based on the positive drug test, the State questioned Williams about statements made in reports that indicated the man claimed to have been raped by Williams. Defense counsel lodged a hearsay objection, to which the State responded that it was not offering the statements for the truth of the matter asserted. The district court allowed the State to ask Williams if he remembered events recorded by his parole officer; specifically, the notes indicated that Williams had been charged with rape, the charge had been amended to sodomy, and then it was dismissed without prejudice. Williams replied, “No.” At the conclusion of Williams’ testimony, the district court asked some questions. During this exchange, Williams explained he took the man back to his apartment and that they “sat around and got high. . . . When he got ready to leave I wouldn’t let him leave.” Williams told the district court that he did not have sexual relations with the man, however.
During cross-examination, Williams was also asked about the conduct in 2002 that led to the parole revocation in early 2003. Williams explained that he had sexual contact with a male he contacted through a personal advertisement. Williams testified this person said he was 23 years old, but afterward, Williams became concerned that the man was younger. Williams testified that he never actually knew the person’s age, but he admitted during his testimony that there was a possibility the young man was under the age of 18. In addition, on cross-examination, Williams admitted watching pornography and being sexually active during parole. Williams also admitted that each time he was paroled, he had returned to drinking alcohol — a sexual trigger for him.
Additional testimony of the experts and Williams will be discussed as we review the parties’ arguments.
District Court’s Findings
After hearing the testimony, the district court found beyond a reasonable doubt that Williams is a sexually violent predator. Although the court did not make specific or extensive findings on the record, the court indicated it was persuaded by Dr. Reid’s report and that, although Dr. Barnett made some veiy valid points, Dr. Barnett’s report did not “override” the opinion of Dr. Reid. The court also found it significant that Williams had been paroled twice and his treatment was “met with little to no success.”
Court of Appeals’ Decision
The Court of Appeals examined the sole issue raised by Williams — whether there was sufficient evidence to support the requirement under the SVPA that he is “likely to engage in repeat acts of sexual violence” in that “the person’s propensity to commit acts of sexual violence is of such a degree as to pose a menace to the health and safety of others.” K.S.A. 2010 Supp. 59-29a02(a), (c).
Accepting the expert opinion of Dr. Reid, the Court of Appeals was bothered by Dr. Reid’s conclusion that the MnSOST-R and Static-99 tests showed that only 29 percent to 40 percent of sexual offenders like Williams will reoffend in the near future. Williams, 2009 WL 2762455, at *4. The Court of Appeals stated: “[T]he requirement to prove the likelihood of reoffending beyond a reasonable doubt does not justify a finding based on only a possibility.” Williams, 2009 WL 2762455, at *3.
The Court of Appeals continued its analysis by stating: “The State’s strongest arguments appear to be those that concern Williams’ alleged reoffending in the past after treatment.” Williams, 2009 WL 2762455, at *3. The court then discussed those allega tions and discounted their significance. Focusing on the incident that led to the first parole revocation, the Court of Appeals noted that Williams was charged with rape based on the complaints of the man Williams had taken to his apartment, but the rape charge was reduced to sodomy and eventually dismissed without prejudice. As to the second incident, the court noted that the parole violation related to an incident involving a male Williams met through a personal advertisement. Williams originally thought the person was 23 years of age but later questioned whether the person was a minor. Williams was not charged in that matter, and, according to the Court of Appeals, there was no evidence of the person’s identity or actual age. Williams, 2009 WL 2762455, at *3-4. Consequently, the Court of Appeals stated that these two instances “do not support the position that he has sexually reoffended with a child.” And “[njeither case shows a likelihood that he was engaged in sex with an underage person or forcible sex with an adult.” Williams, 2009 WL 2762455, at *4.
The Court of Appeals did recognize that “the record is replete with many instances of substance abuse and other behavioral difficulties that could contribute to Williams losing control and reoffending. This is something Williams himself recognizes.” Williams, 2009 WL 2762455, at *4.
After examining other cases in which Kansas appellate courts have upheld sexually violent predator findings, the Court of Appeals reversed the district court, stating:
“While there is no doubt that practically a generation ago Williams offended, it is hard to see that he is likely to offend again, beyond a reasonable doubt. Since there is no weighing of testimony in any detail in the trial court’s finding, it is difficult to see how Williams, under the facts of this case, could have been found likely to reoffend beyond a reasonable doubt.” Williams, 2009 WL 2762455, at °6.
The State filed a petition seeking this court’s review of the Court of Appeals’ conclusion, arguing the Court of Appeals improperly reweighed the evidence and failed to consider evidence that supported the district court’s findings. This court granted the State’s petition for review.
Analysis
Standard of Review
When presented with an issue of whether evidence was sufficient to sustain the State’s burden of proof in a sexually violent predator case, this court’s standard of review asks whether, after review of all the evidence, viewed in the light most favorable to the State, we are convinced a reasonable factfinder could have found the State met its burden to demonstrate beyond a reasonable doubt that the individual in question is a sexually violent predator. See In re Care & Treatment of Colt, 289 Kan. 234, 243-44, 211 P.3d 797 (2009); In re Care & Treatment of Hay, 263 Kan. 822, 842, 953 P.3d 666 (1998); see also K.S.A. 2010 Supp. 59-29a07(a) (stating reasonable doubt burden). As an appellate court, we will not reweigh the evidence, pass on the credibility of witnesses, or resolve conflicts in the evidence. State v. Hayden, 281 Kan. 112, 132, 130 P.3d 24 (2006); In re Care & Treatment of Ward, 35 Kan. App. 2d 356, 371, 131 P.3d 540, rev. denied 282 Kan. 789 (2006).
Overview of Sexually Violent Predator Act
The SVPA, K.S.A. 59-29a01 et seq., is an act for the restraint of sexually violent predators aimed at identifying and involuntarily civilly committing such predators to “potentially long term control, care and treatment” “in an environment separate from persons involuntarily committed” for other reasons. K.S.A. 59-29a01. K.S.A. 2010 Supp. 59-29a02(a) defines a “sexually violent predator” as any person who has been convicted of or charged with a “sexually violent offense,” as defined, and “who suffers from a mental abnormality or personality disorder which makes the person “likely to engage in repeat acts of sexual violence.” A “sexually violent offense” is defined as any of the sex-related offenses listed in K.S.A. 2010 Supp. 59-29a02(e). The phrase “likely to engage in repeat acts of sexual violence” means a person’s “propensity to commit acts of sexual violence is of such a degree as to pose a menace to the health and safety of others.” K.S.A. 2010 Supp. 59-29a02(c).
The Court of Appeals categorized these definitions into three elements, stating: “Under the statute, there are three elements of proof necessary to establish that an individual is a sexually violent predator: (1) The respondent.has been convicted of or charged with a sexually violent offense, (2) the respondent suffers from a mental abnormality or personality disorder, (3) the mental abnormality or personality disorder malees the respondent likely to commit repeat acts of sexual violence.” Williams, 2009 WL 2762455, at *1. This listing is incomplete, however, and does not account for an element that was imposed by the United States Supreme Court when it considered the constitutionality of the Kansas statute.
The additional element was imposed in Kansas v. Crane (Crane II), 534 U.S. 407, 122 S. Ct. 867, 151 L. Ed. 2d 856 (2002). The decision in Crane II resulted from the second appeal to the United States Supreme Court in which the constitutionality of the SVPA was in question. In the first case, Kansas v. Hendricks, 521 U.S. 346, 370, 117 S. Ct. 2072, 138 L. Ed. 2d 501 (1997), the United States Supreme Court held the statutory requirement that the individual have a “mental abnormality or personality disorder” satisfied substantive due process because it “narrows the class of persons eligible for confinement to those who are unable to control their dangerousness.” Hendricks, 521 U.S. at 358. Applying that holding in In re Care and Treatment of Crane (Crane I), 269 Kan. 578, 580-81, 7 P.3d 285 (2000), this court held that Hendricks requires a “finding that the defendant cannot control his dangerous behavior.” Crane I, 269 Kan. at 586. The State filed a writ of certiorari, arguing that this court applied that requirement in a way that imposed on the State a burden to always prove that the individual was completely unable to control his or her behavior. In Crane II, the United States Supreme Court agreed with the State that it need not prove an absolute lack of control, but it disagreed with the State’s argument that commitment can occur without any lack-of-control determination. Instead, the Court held: “It is enough to say that there must be proof of serious difficulty in controlling behavior.” Crane II, 534 U.S. at 413. The Court explained further:
“[Tjhis, when viewed in light of such features of the case as the nature of the psychiatric diagnosis, and the severity of the mental abnormality itself, must be sufficient to distinguish the dangerous sexual offender whose serious mental ill ness, abnormality, or disorder subjects him to civil commitment from the dangerous but typical recidivist convicted in an ordinary criminal case. [Citations omitted.]” Crane II, 534 U.S. at 413.
Explaining this holding, the Court noted that Hendricks suffered “from pedophilia — a mental abnormality that critically involves what a lay person might describe as a lack of control.” Crane II, 534 U.S. at 414.
Hence, the statutory requirements combined with the holding in Crane II impose four elements that must be proven to establish that an individual is a sexually violent predator: (1) the individual has been convicted of or charged with a sexually violent offense, (2) the individual suffers from a mental abnormality or personality disorder, (3) the individual is likely to commit repeat acts of sexual violence because of a mental abnormality or personality disorder, and (4) the individual has serious difficulty controlling his or her dangerous behavior. See K.S.A. 2010 Supp. 59-29a02(a); Crane II, 534 U.S. at 413; PIK Civ. 4th 130.20.
All of these elements must be proven beyond a reasonable doubt. K.S.A. 59-29a06(a); K.S.A. 2010 Supp. 59-29a07(a), (e); see also In re Care & Treatment of Foster, 280 Kan. 845, 853-61, 127 P.3d 277 (2006) (although the trial is characterized as civil in nature, it possesses many characteristics of a criminal proceeding).
First, Second, and Fourth Elements Not at Issue
In this case, only the third element — whether Williams is likely to commit repeat acts of sexual violence because of a mental abnormality or personality disorder — is placed in issue by the parties’ arguments and the Court of Appeals’ holding. Regarding the other elements, it is undisputed that Williams has two convictions for indecent liberties with a child; thus, the first element is satisfied. And, although pointing out that Dr. Barnett, Williams’ expert witness, did not diagnose him with a mental disorder — rather, a problem with alcohol and substance abuse — Williams does not argue the evidence is insufficient on the second element. Indeed, Dr. Reid’s diagnosis of antisocial personality disorder, alcohol dependence, substance abuse, exhibitionism, and paraphilia NOS provides evidence which when viewed in the light most favorable to the State is sufficient to establish the second element. Further, as pointed out in the cross-examination of Dr. Barnett, in the 1980’s Dr. Barnett had diagnosed Williams as having atypical paraphilia and sexual compulsion.
The fourth element — difficulty controlling behavior — was not specifically enumerated or discussed by the Court of Appeals or the parties in their briefs. At most, Williams conflates the fourth element with the third by merely mentioning “difficulty in controlling dangerous behavior” in the context of arguing that he was “not likely to re-offend and engage in repeat acts of sexual violence.” We note, however, that Dr. Reid specifically enumerated this element and voiced his opinion that Williams would have difficulty controlling his behavior. He observed that despite the fact Williams had completed SOTP on multiple occasions, he had subsequently reoffended while on parole in 2002. He testified that this was “problematic, as well as the pattern ... of disciplinary reports indicating not following [the] rules and guidelines [of] the Department of Corrections.” Further, although Williams completed another round of SOTP after the 2002 incident, Dr. Reid noted that the Department of Corrections’ records documented staff concerns with certain behaviors observed in Williams’ treatment of other inmates. Also, as noted by the Court of Appeals, Williams had displayed difficulty in controlling his use of drugs and alcohol, which admittedly are a trigger for Williams’ sexual behaviors. This pattern caused Dr. Reid to conclude Williams had difficulty in controlling his behavior.
Hence, there was sufficient evidence regarding the first, second, and fourth elements. Further, Williams has waived or abandoned any arguments he has regarding these elements by not arguing these points. See State v. Walker, 283 Kan. 587, 594, 153 P.3d 1257 (2007) (issues not briefed are waived or abandoned on appeal); see also In re Care & Treatment of Miller, 289 Kan. 218, 225, 210 P.3d 625 (2009) (this court typically requires issues addressed on petition for review to have been preserved in the Court of Appeals, if not decided there).
Likely to Engage in Repeat Acts of Sexual Violence
Consequently, as in the proceedings before the Court of Appeals, the focus before us is on the third element — whether it is likely Williams will commit repeat acts of sexual violence because of a mental abnormality or personality disorder. The district court did not make specific findings on this point. When, as in this case, a party fails to object to the lack of findings before the district court, an appellate court presumes that the district court made the factual findings necessary to support its decision. See State v. Gaither, 283 Kan. 671, Syl. ¶ 5, 156 P.3d 602 (2007); Hay, 263 Kan. at 836. What we do know from the district court’s comments is that the court found Dr. Reid’s opinion persuasive. We, therefore, must examine whether Dr. Reid’s report and testimony established the third element of the sexually violent predator definition.
This task is made easy by the structure of Dr. Reid’s testimony, where the State asked about each element specifically. Regarding the third element, Dr. Reid stated his opinion that Williams is likely to engage in repeat acts of sexual violence and then testified that his opinion was “based on a pattern of history before incarceration and also while incarcerated as well as the intransigent nature of Antisocial Personality Disorder and also paraphilias are notoriously difficult to correct.” He added that Williams’ past behaviors had been sexually motivated rather than being “an afterthought” to a crime.
Despite this statement of the basis for his opinion, which did not specifically depend on the actuarial tests, the Court of Appeals focused on the statistical data from the risk assessment tools. The Court of Appeals compared this case to other cases where offenders were found to be sexually violent predators. Although it could find no cases where a sexually violent predator determination had been reversed on appeal due to insufficient evidence, the panel believed the percentages of risk in Williams’ case, generated by the actuarial tests, were “rather low in comparison to other defendants who have been found to be sexually violent predators.” Williams, 2009 WL 2762455, at *6.
Before this court, the State suggests that the Court of Appeals relied too heavily on the need for a test to prove that Williams would reoffend. Clearly, the law does not require the State to prove that an offender will reoffend. See Crane II, 534 U.S. at 412 (“Insistence upon absolute lack of control would risk barring the civil commitment of highly dangerous persons suffering severe mental abnormalities.”). But the Court of Appeals did not hold the State to this standard; rather, it appropriately noted that the State had to prove beyond a reasonable doubt that Williams is “ ‘[l]ikely to engage in repeat acts of sexual violence.’ ” (Emphasis added.) Williams, 2009 WL 2762455, at *3 (quoting K.S.A. 2010 Supp. 59-29a02[a]); see In re Care & Treatment of Ward, 35 Kan. App. 2d at 371-72.
Nevertheless, the Court of Appeals appears to have given considerable weight to the fact that Williams’ scores did not exceed 50 percent on actuarial tests. Requiring that threshold to be met is problematic for several reasons. First, there is no authority supporting a requirement that the State use a particular method of proof or a particular diagnostic tool, such as an actuarial test. Nor is there support for suggesting that if an actuarial test is used, a particular percentage or category of risk must be shown on the actuarial risk assessment test before an offender may be characterized as a sexually violent predator.
In fact, both experts in this case were critical of the actuarial tests and, while considering the tests, emphasized other factors as the basis for their opinions. Dr. Reid, while noting that Williams’ score on the Static-99 placed him in the moderate to high risk category of sexual recidivism and his violence recidivism was scored at 52 percent within 15 years, suggested the risk could be higher. In Dr. Reid’s written evaluation, which was admitted into evidence, he stated that “it is likely that risk assessment instruments may underestimate the degree of recidivism” over the lifespan of the offender. Both experts explained to the district court that these actuarial tests look at the population of sex offenders who have a similar history and characteristics to the person being tested. The score is then based on this group’s known history of reoffending. According to Dr. Reid, this method may underestimate the probability that an offender will reoffend because it does not account for statistics regarding unreported and unsolved sex crimes.
Dr. Barnett shared other concerns about the adequacy and accuracy of the tests. Speaking of the MnSOST-R, Dr. Barnett stated: “[T]here’s lots and lots and lots of problems with this test and others.” He referred to the tests as a “good first step” but indicated recent articles suggested these tests were no better at predicting recidivism than a method of using base rates of recidivism of all sex offenders. In his view the assessment needs to be individualized and based on the individual’s history and records and an assessment of both static and dynamic factors.
Given the criticism of the assessment tools by both experts, a rational factfinder could have placed little or no weight on the test scores and could have relied on other aspects of the experts’ opinions. Consequently, the State’s criticism that the Court of Appeals placed undue weight on the test scores is well placed.
Further, even if we compare Williams’ scores to others who have been found to be sexually violent predators, we find other Kansas cases where the individual scored below 50 percent on most scores and overall fell within the same moderate to high risk category as Williams. Cf. In re Care & Treatment of Goeminne, No. 99,692, 2009 WL 743921 (Kan. App. 2009) (unpublished opinion) (Static-99 test indicated moderate-high risk; MnSOST-R indicated low risk); In re Care & Treatment of Anderson, No. 95,441, 2007 WL 1175848 (Kan. App. 2007) (unpublished opinion) (Static-99 test indicated 40 percent within 5 years, 45 percent within 10 years, and 52 percent within 15 years; MnSOST-R indicated 8 percent within 6 years). In yet others, scores were similar but slightly higher. See In re Care & Treatment of Colt, 39 Kan. App. 2d 643, 652-53, 183 P.3d 4 (2008), aff'd. 289 Kan. 234, 211 P.3d 797 (2009) (Static-99 test indicated 39 percent within 5 years, 45 percent within 10 years, and 52 percent within 15 years; MnSOST-R indicated high risk of reoffending at 54 percent within 6 years). Still others placed the offender in a higher category of risk. See In re Care & Treatment of Pitts, No. 97,349, 2008 WL 3003822 (Kan. App. 2009) (unpublished opinion), rev. denied 287 Kan. 765 (2009.) (actuarial tests showed high risk of reoffending); In re Care & Treatment of Oldham, No. 91,228, 2004 WL 2047552 (Kan. App. 2004) (unpublished opinion) (Static-99 indicated medium-high risk; MnSOST-R indicated 88 percent within 6 years); In re Care ir Treatment of Teer, No. 89,652, 2004 WL 1191445 (Kan. App. 2004) (unpublished opinion), rev. denied 278 Kan. 845 (2004) (Static-99 indicated high risk; MnSOST-R indicated 70 percent which is high risk). Despite the fact that Williams’ scores are similar to those in some of these cases, we agree with the Court of Appeals that low scores on the actuarial tests weigh against finding the State has met its burden. However, other evidence could convince a rational factfinder that the State has met its burden beyond a reasonable doubt, especially when, as in this case, both experts based their opinions on factors other than the tests.
Implicitly, the Court of Appeals recognized this point because its decision was not based solely on the test scores. The court noted that the State’s best argument was that Williams had reoffended. Yet, according to the Court of Appeals, the record is not clear as to the nature and dates of such alleged offenses, the alleged conduct consisted of uncharged sexual activity, and there was no evidence that there had been a reoffense. Williams, 2009 WL 2762455, at *3-4. The State, in its petition for review, argued that these conclusions ignore evidence admitted at the SVPA trial. Our review of the record confirms that the State’s argument is valid; there is evidence that Williams reoffended and engaged in practices that Dr. Reid found were significant indicators of a failure to control behavior.
Specifically, as previously discussed, there was evidence that Williams’ second parole violation was based in part on a finding that Williams had engaged in sexual conduct with an underage male. At the SVPA trial, Williams testified he did not know if the other person was under 18, a point of focus for the Court of Appeals. Nevertheless, this testimony is contrary to Williams’ prior statements, and these statements were in evidence at the SVPA trial. Specifically, Dr. Reid testified, without objection, that the CSR reported Williams’ parole was revoked in early 2003 “due to his admission of having a sexual encounter with an underage male he met through a dating advertisement.” This admission was apparently made during the investigation of a possible parole violation. See Bankes v. Simmons, 265 Kan. 341, 352-53, 963 P.2d 412, cert. denied 525 U.S. 1060 (1998) (Department of Corrections “can insist that the [writ of habeas corpus] petitioner admit responsibility, so long as his or her admission is not used against the petitioner in later criminal proceedings.”). In this civil trial, Williams’ prior admission that he engaged in a sexual encounter with an underage male approximately 6 months after being released on parole could be considered by the SVPA factfinder.
The other incident characterized as a “reoffense” by the State involved the charges that led to the first revocation of Williams’ probation. The Court of Appeals, as previously noted, described an incident in which Williams picked up an adult male at a bar, took the man to Williams’ apartment, and then engaged in sexual relations with him. According to the Court of Appeals, rape charges were originally brought but were reduced to sodomy and then dismissed without prejudice. The Court of Appeals characterized this incident as “consensual sodomy,” citing Lawrence v. Texas, 539 U.S. 558, 578, 123 S. Ct. 2472, 156 L. Ed. 2d 508 (2003) (concluding a state may not prohibit two adults from engaging in private, consensual sexual practices).
The basis for the Court of Appeals’ conclusion is unclear. As previously discussed, the State cross-examined Williams regarding the incident, and Williams testified he did not remember the events as stated by his parole officer. After both parties had finished questioning Williams, the district court asked some questions, including whether Williams had sexual relations with the man. Although it is in the course of these questions that Williams admitted he did not let the man leave when he wanted to, Williams denied having sex. Hence, the evidence at the SVPA trial established that charges were filed, but there is no evidence to substantiate the charges or even that there was consensual sodomy. Thus, the Court of Appeals makes a valid point that there is no evidence of a sex crime related to the earliest parole violation. However, we find no argument in the State’s brief before the Court of Appeals suggesting that there was evidence of a sex crime being committed during Williams’ first period of parole.
More importantly, this absence of proof regarding a possible sex crime during the first period of parole does not undercut Dr. Reid’s opinion or the reasons he gave as the basis of his opinion. Dr. Reid explained that the reasons he believed Williams is likely to engage in repeat acts of sexual violence were the “pattern of history before incarceration and also while incarcerated as well as the intransigent nature of Antisocial Personality Disorder and also paraphilias are notoriously difficult to correct.” In further support of his opinion, Dr. Reid discussed the 2002 incident that led to the second parole revocation. Dr. Reid found it significant that Williams had completed SOTP multiple times and still engaged in a sexual encounter with a male who, by Williams’ own admission, was underage.
Granted, the 2002 incident was uncharged conduct. However, in Hay, 263 Kan. at 837-38, this court held that even uncharged prior conduct may be admissible against an individual in a sexually violent predator commitment proceeding. But this court did caution in Miller that “the State’s sponsorship of evidence of crimes with which a respondent has been charged but that have later been dismissed for lack of evidence or misidentification is playing with fire.” Miller, 289 Kan. at 229. Miller involved a jury trial, and evidence in the SVPA trial included, inter alia, a charging document from a 1992 burglary, which included an attempted rape that was later dismissed, and testimony from a State psychologist about the respondent’s numerous other prior crimes and civil wrongs, some with no sexual component and some never proved. The jury was made aware of the dismissals, however. This court rejected the notion that any knowledge the jury had about specifics in Miller’s charging and conviction histoiy was inaccurate or that the respondent was denied a fair trial. Miller, 289 Kan. at 230.
In this case, the district court, acting as the finder of fact, was well aware that the conduct was uncharged. It heard Williams’ denial of any sexual contact with the man who brought the rape charge in 1999, and it heard Dr. Reid read from the records that reported Williams’ admission to sex with an underage male in 2002. The evidence also established that this admission was made during the investigation of a parole violation, and the district court heard Williams testify as to his motivation to “just go back to prison and just do my time and then I don’t have to worry about, you know, the parole officer telling me what I can and I cannot do, who I can and cannot hang with.” Thus, the district court was in a position to assess what, if any, weight to give to the uncharged or unproven crimes.
The Court of Appeals ignored tire evidence of Williams’ admission regarding the 2002 incident and also found that the 1987 charged crimes were mitigated by the passage of time and by Williams’ completion of additional sex offender treatment. Dr. Reid discussed these repeated courses, cataloguing the various treatment programs — both while in custody and while on parole. However, after citing the completion of the final treatment program in 2006, Dr. Reid noted that the staff s discharge notes raised concerns about Williams befriending younger men in the unit, “manipulative behaviors,” the need to increase his “self-disclosure,” and the need for “greater accountability for deviant behavior.”
In other words, while the Court of Appeals made valid points regarding the evidence, there is other evidence that weighs against each point. If we were weighing the evidence and assessing credibility, we might reach a different result from that of the district court. But that is not our role and should not have been the role of the Court of Appeals. Rather, we look at all of the evidence in the light most favorable to the State to determine if a reasonable factfinder would find the State had met its burden.
Highly summarized, the evidence that supported the State’s case includes evidence that the sexual assessment tests placed Williams in a moderate to high risk of recidivism, staff members were concerned about lapsing behaviors while Williams was in prison, Williams had engaged in what were viewed as high risk behaviors while on parole despite repeated participation in SOTP, Williams admitted to engaging in sex with an underage individual while on parole, and Williams admitted to difficulty controlling his use of alcohol and drugs. Moreover, Dr. Reid opined that Williams is likely to reoffend because he suffers from paraphilia NOS and an antisocial personality disorder which predispose Williams to commit sex offenses.
As is often true in cases such as this, the dispute became a batde of the experts. The district court that heard their testimony found Dr. Reid’s opinion to be more persuasive. This opinion and the factors on which it was based presented sufficient evidence for a rational factfinder to have found, beyond a reasonable doubt, that Williams is a sexually violent predator as defined by the SVPA.
Judgment of the Court of Appeals reversing the district court is reversed. Judgment of the district court is affirmed.
Merlin G. Wheeler, District Judge, assigned.
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The opinion of the court was delivered by
Kingman, O. J.:
This is a proceeding to reverse a judgment of the Leavenworth district court refusing to grant a divorce to the plaintiff in error. Has this court jurisdiction of the case? Although, this question was not presented in the argument, (there having been no appearance for defendant in error,) it has been too often suggested not to challenge attention. That the present code confers the jurisdiction on this court to review divorce cases in the same manner as other cases, is not questioned. The doubt arises from the provisions of the constitution. Section 18 of art. 2 is as follows: “All power to grant divorces is vested in the district courts, subject to regulation bylaw;” while § 3 of art. 3 provides that “the supreme court shall have such appellate jurisdiction as may be provided by law.” These parts of the constitution are of equal force, and on this point should be considered in connection; and so examined they give the power to grant divorces solely to the district court, subject to such appeal to the supreme court as may be provided by law. This is the legitimate construction of these clauses of the constitution if both are taken together. The law having conferred the appellate jurisdiction on this court, we are constrained to hold, with much reluctance, that the court has jurisdiction of the case.
The errors alleged in this court may be resolved into one, and that is that the decision of the district court was contrary to the evidence. The cause alleged for the divorce was extreme cruelty. The trial was ex fcurte, for though the defendant had answered he was silent on the trial.
The record contains all the evidence, and as it appears therein would seem to prove enough to entitle the plaintiff to a divorce; but it must be borne in mind that the district court had the great advantage of hearing the witnesses, of observing their demeanor while testifying, and all the aids that such position affords in the ascertainment of the truth; and that court finds that there is no cause of divorce — a decision it adhered to on a motion for a new trial. To overturn that decision this court must say that the witnesses were entitled to full credit — that there was not even an innocent exaggeration in their testimony growing out of their temperament, or the exasperation of the moment, or from any other cause; that there were no indications that the action had been brought and the case made up by collusion. These and many other things must be determined without those opportunities for knowing their truth which the district court possessed. We do not feel authorized to reverse the decision of the district court under these circumstances. If the party had desired this court to determine whether certain facts constituted extreme cruelty, section 290 of the code points out the mode by which that result can be attained, and one that would present the point freed from the embarrassments surrounding this case.
In the argument great stress was laid upon the reasons given by the judge of the district court for the decision made in this ease. Those reasons are not in the record, and cannot affect the decision of this case. The judgment is affirmed.
Brewer, J., concurring. | [
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The opinion of the court was delivered by
Rosen, J.:
At about 9:15 in the evening of April 20,2006, Kansas Highway Patrol Trooper Keefe Hemel was patrolling on Highway 50 west of Dodge City, Kansas. As he was driving west, he en countered an east-bound car traveling at 51 miles per hour in a 65 miles-per-hour zone. The approaching car drifted toward the “fog line,” or the white right-hand lane marker. Hemel turned around and caught up with the car in order to continue to observe how it was being driven. Over a course of about half a mile, the car crossed the fog line three times. After about 25 seconds, Hemel turned on his emergency lights, and the car pulled over to the side of the highway. A videotape was available of the last few seconds of his following the car and the subsequent events at the side of the road.
Julie Stieben was driving the car. Hemel asked her whether she had been drinking alcohol, because he smelled an odor he associated with alcoholic beverages coming from the car. She said she had not. He observed that her eyes were bloodshot and watery. He asked her to step out of the car for field sobriety testing. Hemel smelled the strong odor of an alcoholic beverage about her as they stood outside her car.
Stieben initially performed a walk-and-tum test, and she failed five indicators, including balance, counting, turning, and foot placement. She also failed a one-leg-stand test. Finally, she failed a horizontal gaze nystagmus (HGN) test. Hemel then placed Stieben under arrest and drove her to the Ford County Detention Center, where she refused to take a blood-alcohol breath test. An inventory search of the car failed to disclose any alcohol or contraband but did reveal the presence of strong-smelling trash and rotting food.
On May 18, 2006, the State filed an information charging Stieben with one count of operating a motor vehicle while under the influence of alcohol, pursuant to K.S.A. 2005 Supp. 8-1567(a)(3), and one count of operating a motor vehicle while improperly driving on a laned roadway, pursuant to K.S.A. 8-1522. On January 19, 2007, StiebeiTs attorney, Leslie A. Hess, filed a motion requesting that Judge Daniel L. Love disqualify himself from the case pursuant to K.S.A. 20-311d. Following a hearing, Judge Love denied the motion.
Hess then filed an affidavit asserting various negative interactions between Judge Love and herself over the course of more than a year. Hess also filed a motion to suppress the vehicle stop for lack of probable cause and lack of reasonable suspicion of criminal activity. Judge E. Leigh Hood reviewed the affidavit and found insufficient grounds to remove Judge Love. Following an evidentiary hearing, Judge Love then denied the motion to suppress.
The State elected to file an amended information that omitted the count of improperly driving on a laned roadway. The case proceeded to jury trial, where the only witness was Trooper Hemel. He testified about the driving he had observed and Stieben’s performance on the field sobriety tests. He did not testify about the HGN test. A jury found Stieben guilty of operating a vehicle while under the influence of alcohol. The court sentenced Stieben as a third-time offender to 1 year in jail, with all but 90 days suspended, of which she was required to serve 10 days in jail. It also fined her $1,500 and placed her on probation for 1 year.
Stieben took a timely appeal to the Court of Appeals, which affirmed the conviction. State v. Stieben, No. 99,446, unpublished opinion filed February 13, 2009. This court granted Stieben s petition for review.
The Jury Question and the Answer from the Bench
Twenty-eight minutes after it began deliberations, the jury delivered a question to the court. The following discussion took place:
“THE COURT: I was just handed a question from the bailiff. We’re in the courtroom. Defendant is present. Both attorneys are here. The question is: ‘Did Defendant cross the fog line before the officer turned around?’ And, the presiding juror signed this, Laura Shenk. I had that in my notes that Hemel saw the Defendant eastbound, driving slowly and that she crossed the fog lane marker. That’s in my notes.
“MS. KUHN: That’s what I have.
“MRS. HESS: I mean, I want them to go back to the testimony, Judge, because I don’t think she crossed it as he passed her.
“MS. KUHN: My recollection of the testimony is he stated that she was going 51 in a 65 and that she crossed the fog line as he passed her, and then he turned around to follow her, and she crossed it three more times.
“MRS. HESS: Then, I think we need to make sure before we answer that.
“THE COURT: That’s my recollection. I have it written down. I’m going to write yes. And, with no more explanation than that.
“MRS. HESS: We object, Judge, without looking at the record.”
Trooper Hemel’s actual testimony was: “The vehicle had also drifted toward the fog line when it was coming at me.” On cross-examination, he testified that when he first encountered Stieben he did not see any traffic violations and saw no conduct that would have led him to stop her.
The response by the trial court constituted error in at least two ways. First, the court violated the express provisions of K.S.A. 22-3420(3). Second, the court intruded on the province of the jury to act as the factfinder, interfering with Stieben’s constitutional right to a trial by jury by not only answering the question, but by answering it incorrectly, possibly prejudicing Stieben’s defense.
The first point of error relates to the application of the statutes governing juiy questions. K.S.A. 60-248(e) allows the court to respond to a jury request for further information relating to any part of the evidence as the court finds to be required under the circumstances. Although the court apparently found its own notes and the memory of the prosecution to suffice, there was disagreement between counsel as to what the testimony had actually been. The juiy did not specifically ask that it return to the court for a reading of the testimony, as K.S.A. 22-3420(3) allows. But K.S.A. 22-3420(3) explicitly allows the court to have the testimony read or exhibited to the juiy, and where the parties were in disagreement about the testimony, such a direct showing to the juiy would have excused the court from relying on its notes and memoiy.
Where the jury is “obviously confused” on a point of law, the court has an obligation to provide further instruction, even if the original jury instruction would normally have been sufficient. The failure of the trial court to give the juiy additional information was clearly prejudicial and denied the defendant a fair trial. See State v. Bandt, 219 Kan. 816, 823, 549 P.2d 936 (1976); see also State v. Dunnan, 223 Kan. 428, 433, 573 P.2d 1068 (1978) (trial court has duty to give jury guidance by answering questions “accurately”). We find that the statutory scheme similarly contemplates a clarifying answer when the juiy is obviously confused on a point of fact, and K.S.A. 22-3420(3) provides a direct and uncomplicated mechanism for resolving a jury’s confusion.
In this case, the jury confusion related to a point of evidence, and the confusion extended to the trial court. The court therefore had a duty to clarify the confusion by reviewing the transcript.
The second point of error relates to the respective functions of the trial court and the jury. The juiy asked the trial court to resolve a question of fact, and the court complied with the jury’s request. The court could have directed the jury instead to rely on its collective memory, or the court could have read the testimony back to the jury. The court elected, however, to inform the jury that Stieben crossed the fog line as the trooper approached her.
The Sixth Amendment to the United States Constitution provides: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial juiy . . . .” This right to a jury trial includes allowing the jury to decide the materiality of evidence supporting an element of the crime charged. State v. Brice, 276 Kan. 758, 767, 80 P.3d 1113 (2003) (quoting United States v. Gaudin, 515 U.S. 506, 522-23, 115 S. Ct. 2310, 132 L. Ed. 2d 444 [1995]). The prosecution not only bears the burden of proving all the elements of the offense charged, it must also persuade the jury beyond a reasonable doubt of the facts necessary to establish each of those elements. Sullivan v. Louisiana, 508 U.S. 275, 277-78, 113 S. Ct. 2078, 124 L. Ed. 2d 182 (1993).
An instruction that includes a factual determination made by the trial court “invades the province of the jury as the factfinder” and violates the defendant’s rights to have the juiy determine his or her guilt or innocence. Brice, 276 Kan. at 772.
It is the role of the jury to determine the facts independent of the trial court and to apply the law to those facts in reaching its decision. A plea of not guilty places all issues in dispute, including even things most patently true. “ ‘ “Whatever probative force the government’s proof possessed, the jury had the power to accept or reject itor to find it insufficiently persuasive. The defendant had a correlative right to free and unhampered exercise by the jury of all its powers.” [Citation omitted.]’ ” Brice, 276 Kan. at 770-71 (quoting United States v. Mentz, 840 F.2d 315, 320 [6th Cir. 1988]).
It is for the juiy alone to determine the credibility of eyewitnesses. State v. Carter, 284 Kan. 312, 328, 160 P.3d 457 (2007). An expert witness may not testify about the weight or credibility of evidence because those matters belong strictly to the province of the jury. State v. Graham, 246 Kan. 78, 81, 785 P.2d 983 (1990). In the present case, the court itself went where an expert witness may not go: it did not just “testify” about the credibility of certain evidence, it used its judicial authority to make the finding of fact for the jury.
This usurpation of the jury’s role was especially egregious because the court provided the jury with an answer contrary to the only evidence presented. The Brice court stated that a jury might elect to find a fact contrary to what is “patently true.” Brice, 276 Kan at 770. It did not provide the trial court with the same prerogative.
The Court of Appeals restricted its analysis to whether the court’s answer was harmless error:
“We cannot imagine that minor misinformation about the event that initially provoked the arresting officer’s attention had any impact on the jury’s finding of guilt, especially where there were numerous instances of ‘crossing’ the fog fine thereafter.
“Despite the district court’s erroneous answer, we are willing to declare beyond a reasonable doubt that the error had little if any likelihood of changing the result of Stieben’s trial. [Citation omitted.] Notwithstanding the departure from the better practice here, the trial court’s answer to the jury inquiry was harmless.” Stieben, slip op. at 10-11.
Harmless error analysis is inappropriate in the present case. Although it would require speculation to find reasons why the jury considered the early driving infraction important in its deliberation, the jury obviously considered it important enough to pose the question to the court. The evidence against Stieben was strong but not overwhelming. It consisted of a series of factors, any one of which standing alone might not have sufficed for conviction. She drifted toward the fog line once and crossed it three times, but she was not weaving all over the road. She committed no other traffic violations. She failed portions of the field sobriety tests, but she was not reeling and she was able to comprehend directions.
In State v. Myers, 255 Kan. 3, 9, 872 P.2d 236 (1994), this court found that the district court has a statutory duty to read back tes timony when a jury requested it and that failure to comply with K.S.A. 22-3420(3) is not susceptible to harmless error analysis because the requested testimony “could have changed the way the jury evaluated the facts.” In the present case, the requested testimony similarly could have changed the way the jury evaluated the facts.
In order to preserve a conviction on appeal where a constitutional trial error has been found, it is the State’s burden, as the party favored by the error, to prove beyond a reasonable doubt that the error did not affect Stieben’s substantial rights, meaning it did not contribute to the verdict obtained. See State v. Ward, No. 99,549, this day decided; Gamache v. California,_U.S._, _, 131 S. Ct. 591, 592, 178 L. Ed. 2d 514 (2010). The trial court’s invasion of the jury’s province as factfinder effectively denied Stieben her constitutional right to a jury trial. See Sullivan, 508 U.S. at 277 (although judge may direct verdict for defendant if evidence is legally insufficient to establish guilt, judge may not direct verdict for State, no matter how overwhelming the evidence). It is unknown why the juiy considered the question important enough to submit it to the trial court, and it is unknown how the jury utilized the answer it received from the court. This court therefore cannot conclude that the State has shown beyond a reasonable doubt that the error did not affect Stieben’s substantial rights.
For the foregoing reasons, we find that the trial court committed reversible error in the way that it answered the juiy’s question about whether Stieben crossed the fog line when she first encountered Trooper Hemel.
Stieben raises additional arguments on appeal relating to whether Trooper Hemel had reasonable suspicion to stop her and whether he had probable cause to arrest her for driving under the influence of alcohol. She raised no contemporaneous objection to Trooper Hemel’s testimony concerning her driving, but in light of our determination of the issue of the trial court’s response to the jury question, we need not address whether these issues were preserved for appeal or whether the trial court properly admitted the testimony. She also brings up issues regarding the prosecutor’s characterization of her driving and raises an allegation of bias on the part of the trial judge. Because we reverse the conviction on the basis of the answer to the juiy question, it is unnecessary to address these final arguments.
Judgment of the Court of Appeals is reversed. Judgment of the district court is reversed.
William B. Elliott, District Judge, assigned | [
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Tbe opinion of tbe court was delivered by
Kingman, C. J.:
Tbis was an action on a note in which Jelly was tbe surety of tbe other obligors. Separate answers were filed by tbe defendants. Tbe cause was tried by tbe court, and special findings of fact were made.
In tbe argument, it is claimed that tbe findings of fact.are not sustained by tbe evidence. Tbe record does not purport to contain all tbe evidence. To reverse tbe judgment on tbis ground would place tbis court in tbe position of saying that, with a knowledge of what may be only part of tbe facts, we will overturn a decision of tbe court below made upon all tbe facts of tbe case. It has been repeatedly decided that tbis court could not do so, and tbe decision is repeated in tbis case.
But it is claimed that tbe findings on some points are contrary to tbe evidence that is preserved, and tbis may be true; but bow tbe facts might have appeared bad all tbe evidence been presented we cannot say. Tbe presumption is that tbe facts were found upon sufficient evidence, until tbe contrary is shown; and such a result cannot appear upon a part of tbe evidence only. It is further claimed that tbe defendant Jelly was released by virtue of a notice given by him as surety to Hale, requiring Hale to commence suit, or permit Jelly to do so in Hale’s name. This notice appears in tbe findings of tbe court, but not in tbe evidence. We therefore are bound to take it that such a notice was given. But such a notice of itself does not dis charge a surety. It must be followed by a refusal to bring the suit, or to permit the surety to use the name of the holder of the note for that purpose; and the record is silent on both of these points. "We are therefore, in support of the judgment, to presume that there was testimony showing that the holder of the note either brought a suit or authorized the surety to do so. Again, it is insisted that the finding of the court that Howsley indorsed the note, and by his indorsement transferred it to Hale, is contrary to Hale’s own testimony, and therefore it is incorrect. It is true that Hale’s testimony makes-Howsley an accommodation indorser merely, but as the action as to Howsley had been dismissed, and as the pleadings admit the legal transfer of the note to Hale, we cannot see how this error, if it be one, can affect the plaintiffs in error; but for the reasons given above we cannot say it is error. -The judgment is affirmed.
Yalentine, J., concurring.
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The opinion of the court was delivered by
Johnson, J.:
Westar Energy, Inc. (Westar) seeks review of the Court of Appeals’ decision affirming the workers compensation award to Cory Saylor in connection with a knee injury in Saylor v. Westar Energy, Inc., 41 Kan. App. 2d 1042, 207 P.3d 275 (2009). Westar essentially challenges the date of accident assigned to Saylor’s repetitive trauma injuries and contends that it should not have been ordered to pay for unauthorized medical expenses. We affirm the Court of Appeals’ decision affirming the Workers Compensation Board (Board).
Facts and Procedural Background
At the time of the hearing before the administrative law judge (ALJ), Saylor was 54 years old and had been employed by Westar for 33 years, variously serving as a grounds man, truck driver, cable splicer, journeyman cable splicer, and foreman cable splicer. In the foreman position, Saylor supervised a 3-man crew that ran power cables through residential and commercial buildings. His job duties required him to work on his knees on rough ground and asphalt, to climb in and out of manholes, and to climb up and down ladders.
Saylor testified that, approximately 20 years ago, he injured his left knee on the job and underwent a procedure to repair tom cartilage. However, he did not report the injury as work related because he did not know to do so. Several years ago, he experienced pain in his left knee that became progressively worse. Saylor’s family physician referred him to Dr. Steven Howell for cortisone injections. Saylor recalled reporting the trouble with his knee and the injection treatments to his supervisor at the time, Pinky Nelson, albeit Saylor did not fill out any paperwork.
More recently, Saylor experienced worsening pain in his knee, resulting in a referral to Dr. John R. Schurman. On January 4, 2006, Saylor consulted with Dr. Schurman, who recommended knee replacement surgeiy. Saylor stated that he informed his supervisor, Raymond Lara, that he was going to have knee replacement surgeiy and that his job duties caused the injury, but his supervisor did not have him fill out any paperwork. Lara would later testify in deposition that he first learned of Saylor’s left knee pain when Saylor asked for time off to have the surgery and that Saylor referred to the problem as wear and tear over the years, rather than as work related. On his application for leave time, Saylor checked the box indicating the injury was not work related, which he would later explain was done because he did not know that the injury could be covered by workers compensation.
Saylor’s last date worked prior to the surgery was February 6. His February 7 surgery was not authorized by Westar, and his personal health insurance paid the medical bills.
While recovering from the surgery, Saylor learned from a coworker that his knee injury might be considered work related and, thus, eligible for workers compensation. Saylor then sought the advice of a workers compensation attorney, who served a notice of intent and written claim on Westar on March 28, 2006.
In addition to Lara’s deposition, Westar presented the deposition of its manager of safety and training, Joe Drassen. Drassen testified that Saylor had received the manual and attended training sessions related to reporting accidents and injuries to a supervisor. Dr. Schurman and Dr. C. Reiff Brown testified by deposition regarding causation. Ultimately, the ALJ determined that Saylor’s injury was work related and that the date of accident was March 28, 2006 — the date Saylor provided notice to Westar. See K.S.A. 2010 Supp. 44-508(d). The ALJ found that Saylor had 37% impairment to his left leg; that he was entitled to all his outstanding and unauthorized medical benefits; and that he should be awarded 74 weeks of permanent partial disability compensation in the amount of $34,558.
The Board affirmed the ALJ’s award, finding that Saylor’s injury was work related and arose out of and in the course of his employment with Westar. The Board further found that Saylor provided Westar with timely notice under 44-508(d), concluding that, since there was no authorized physician in this case, the date of accident was the notice date of March 28. Finally, the Board found that Westar was liable under K.S.A. 44-510j(h) for Saylor’s unauthorized medical expenses because Westar knew about the work-related injury but failed to provide medical treatment for Saylor.
Two members of the Board wrote a separate concurring opinion, stating that the date of accident should be Saylor s last date worked, February 6, 2006, instead of the date of notice of claim, March 28. Nevertheless, the concurring members opined that the notice was not untimely under K.S.A. 44-520 because there was just cause to extend the notice deadline from 10 days to 75 days.
Westar appealed to the Court of Appeals, which affirmed the decision of the Board’s majority. The panel specifically held that, pursuant to the plain and unambiguous language of44-508(d), Saylor’s date of injury was March 28, 2006; that Saylor’s notice of accident was timely; and that Westar was responsible for the entire amount of Saylor’s medical bills. Saylor, 41 Kan. App. 2d at 1048-51. Westar filed a petition with this court, seeking review on three issues, which it stated as follows:
“1. Did the Court of Appeals fail to address whether substantial and competent evidence existed to establish that claimant sustained a personal injury by accident that arose out of and in the course of his employment on March 28, 2006?
“2. Did the Court of Appeals misinterpret K.S.A. §44-508(d) and thereby defeat the purpose of the notification provisions and eliminate statutory defenses of the Kansas Workers Compensation Act?
“3. Did the Court of Appeals fail to consider contrary precedent set by the Kansas Supreme Court, as well as other panels of the Court of Appeals, when interpreting K.S.A. §44-510j(h) to find Westar obligated to pay medical bills incurred by the claimant without Westar’s authorization?”
We granted the petition for review and assumed jurisdiction pursuant to K.S.A. 60-2101(b). We agree with the panel’s statutory interpretation and affirm the Court of Appeals’ decision.
Date of Injury
Westar’s first two issues concern the date of accident assigned to Saylor’s repetitive use injury. First, Westar contends that March 28, 2006, is a factually unsupportable date of accident because Saylor did not physically work on that date; he was at home convalescing from the surgery to correct the knee injury. Next, Westar complains that the Court of Appeals’ interpretation of K.S.A. 2010 Supp. 44-508(d) defeats the purpose of the notification provisions in the Workers Compensation Act, eliminates an employer’s statutory defenses, and will lead to absurd and illogical results.
Standard of Review
Final orders of the Workers Compensation Board are subject to review under the Kansas Judicial Review Act (KJRA), K.S.A. 77-601 et seq., under K.S.A. 44-556(a). The standard of review will vary depending on the issue raised. See K.S.A. 77-621. Moreover, we apply the standard of review which was in force at the time of the agency action being reviewed. See K.S.A. 77-621(a)(2); Mitchell v. Petsmart, Inc., 291 Kan. 153, 172, 239 P.3d 51 (2010).
At the time of the Board’s order in this case, K.S.A. 77-621(c)(7) provided for judicial relief if the agency action was “based on a determination of fact, made or implied by the agency, that is not supported to the appropriate standard of proof by evidence that is substantial when viewed in light of the record as a whole, which includes the agency record for judicial review, supplemented by any additional evidence received by the court under this act.” Cf. K.S.A. 2010 Supp. 77-621(c)(7), (d) (amended in 2009; not applicable to this case). “Caselaw defines substantial evidence as evidence possessing something of substance and relevant consequence to induce the conclusion that the award was proper, furnishing a basis to act from which the issue raised could be easily resolved.” Mitchell, 291 Kan. at 172 (citing Graham v. Dokter Trucking Group, 284 Kan. 547, 553-54, 161 P.3d 695 [2007]). We review the evidence in the light most favorable to the prevailing party and do not reweigh competing evidence or assess credibility of witnesses. Thus, we will uphold the Board’s decision if it is supported by substantial evidence, even though there is other evidence in the record supporting contrary findings. Graham, 284 Kan. at 553-54.
Further, we may grant relief if we determine that the agency erroneously interpreted or applied the law or if the agency action is otherwise unreasonable, arbitrary, or capricious. K.S.A. 77-621(c)(4), (8). Here, Westar contends the Board and the Court of Appeals misinterpreted K.S.A. 2010 Supp. 44-508(d). We need not give deference to an agency’s interpretation of a statute, but rather we exercise our own unlimited review. Kansas Dept. of Revenue v. Powell, 290 Kan. 564, 567, 232 P.3d 856 (2010).
Analysis
In its first issue, Westar does not dispute that evidence was presented to support the finding that Saylor s knee injury was related to his job duties, such as being on his knees for long periods of time, walking on rough ground, climbing in and out of manholes and transformer vaults, and climbing up and down ladders. Instead, Westar argues that there was no evidence to support the factual determination that Saylor suffered a personal injury by accident that arose out of and in the course of his employment on March 28, 2006. It asserts that the evidence contradicted that accident date, because on March 28, Saylor was not physically on the job; he was home recovering from his knee surgery.
The fallacy with Westar’s argument is that the designation of an accident date in a repetitive use case is not a factual determination of the precise moment at which the claimant suffered the personal injury. By definition, in such cases “the accident occurs as a result of a series of events, repetitive use, cumulative traumas or micro-traumas.” K.S.A. 2010 Supp. 44-508(d). Accordingly, the assignment of any single date as the “accident date” for a repetitive use/ cumulative traumas injury is inherently artificial and represents a legal question, rather than a factual determination.
Prior to 2005, this court dealt with the dilemma of identifying a date of injury in repetitive, microtrauma cases by designating the last day the employee worked for the employer as the accident date. See Kimbrough v. University of Kansas Med. Center, 276 Kan. 853, 855, 79 P.3d 1289 (2003) (established bright-line rule in Kansas that the date of injury is the last day worked). In 2005, the legislature addressed the subject in an amendment to K.S.A. 2010 Supp. 44-508(d), which now states:
“(d) ‘Accident’ means an undesigned, sudden and unexpected event or events, usually of an afflictive or unfortunate nature and often, but not necessarily, accompanied by a manifestation of force. The elements of an accident, as stated herein, are not to be construed in a strict and literal sense, but in a manner designed to effectuate the purpose of the workers compensation act that the employer bear the expense of accidental injury to a worker caused by the employment. In cases where the accident occurs as a result of a series of events, repetitive use, cumulative traumas or microtraumas, the date of accident shall be the date the authorized physician takes the employee off work due to the condition or restricts the employee from performing the work which is the cause of the condition. In the event the worker is not taken off work or restricted as above described, then the date of injury shall be the earliest of the following dates: (1) The date upon which the employee gives written notice to the employer of the injury; or (2) the date the condition is diagnosed as work related, provided such fact is communicated in uniting to the injured worker. In cases where none of the above criteria are met, then the date of accident shall be determined by the administrative law judge based on all the evidence and circumstances; and in no event shall the date of accident be the date of or the day before the regular hearing. “ L. 2005, ch. 55, sec. 1.
The Court of Appeals found the legislative directive on determining the date of accident in a repetitive use scenario to be plain and unambiguous. Saylor, 41 Kan. App. 2d at 1048. We agree. The statute lays out an easy-to-follow progression. First, “the date of accident shall be the date the authorized physician takes the employee off work due to the condition or restricts the employee from performing the work which is the cause of the condition.” K.S.A. 2010 Supp. 44-508(d). Only if the worker was not taken off work or restricted by an authorized physician does one move on to the next formulation, which is the earliest of two dates: (1) the date the employee gives the employer written notice of the injury; or (2) the date the condition is diagnosed as work related, if that fact is communicated in writing to the injured worker. Finally, if none of those criteria apply, the ALJ determines the date of accident based on all the evidence and circumstances. See K.S.A. 2010 Supp. 44-508(d).
Ordinarily, if a statute’s language is not subject to multiple interpretations, the reviewing court need not look past that language. See In re K.M.H., 285 Kan. 53, 79, 169 P.3d 1025 (2007), cert. denied 129 S. Ct. 36 (2008) (when statutory language plain and unambiguous, appellate court need not resort to statutory construction rules); cf. Robinett v. The Haskell Co., 270 Kan. 95, 100-01, 12 P.3d 411 (2000) (Where a statute’s language is subject to multiple interpretations, however, a reviewing court “may look to the historical background of the enactment, the circumstances attending its passage, the purpose to be accomplished, and the effect that statute may have under the various constructions suggested.”). Rather, an appellate court is bound to implement the legislative intent which has been expressed in the legislature’s plain and unambiguous language. See State v. Manbeck, 277 Kan. 224, Syl. ¶ 3, 83 P.3d 190 (2004).
Here, Westar does not contend that the language employed by the legislature in K.S.A. 2010 Supp. 44-508(d) is unclear, equivocal, or ambiguous in stating that, under the facts of this case, the date of accident shall be the date Saylor gave written notice of injury to Westar. Rather, Westar suggests that we must not take the legislature literally, because a plain reading of the statute that assigns a date of accident that is after the last day the worker engaged in the employment activities that caused or aggravated the repetitive trauma condition would lead to absurd and illogical results.
Specifically, Westar warns that a literal interpretation would defeat the very purposes of the notification provisions of the Workers Compensation Act, which purposes Westar believes to be to afford the employer an opportunity to investigate the accident and to furnish prompt medical treatment. Further, Westar complains that such an interpretation will eliminate the employer’s notice and timely written claim defenses for virtually all repetitive trauma injuries. Moreover, Westar points out that the compensation rate under the Act is based upon a worker’s average weeklywage, which is calculated based upon the worker’s wages on the date of accident. Therefore, if the date of accident falls on a day that the claimant did not work, the claimant’s compensation rate under the Act is either incalculable or the worker is simply not entitled to compensation because he or she had no wages on the date of accident.
As a legal pathway for us to travel to arrive at its desired statutoiy interpretation, Westar propounds several maxims dealing with reasonableness. Citing to Pruter v. Larned State Hospital, 271 Kan. 865, 874, 26 P.3d 666 (2001), Westar admonishes us that courts must avoid statutory interpretations that would lead to absurd or unreasonable results. Citing to Employers Reinsurance Corp. v. Kansas Ins. Commr, 271 Kan. 253, 260, 21 P.3d 505 (2001), Westar contends that we must presume that the legislature intends that its enactments be given a reasonable construction, so as to avoid unreasonable results, and that we should reconcile the dif ferent provisions of the act so as to make them consistent, harmonious, and sensible. Moreover, Westar reminds us of the presumption that the legislature does not intend to enact useless or meaningless legislation. See Ruddick v. Boeing Co., 263 Kan. 494, 500, 949 P.2d 1132 (1997).
Then, without citing to legislative history or any other source, Westar offers its opinion that the 2005 changes to 44-508 were made to supplement the judicially created, bright-line, last-day-worked rule, and that the changes were designed to allow the date of accident to be on a date prior to the last day worked, if one of the various conditions were shown to exist. However, Westar affirmatively asserts that the legislative changes were never intended to permit a date of accident which was after the last day worked.
To get where Westar wants us to go, we would have to speculate that the legislature intended to incorporate the last-day-worked rule into K.S.A. 2010 Supp. 44-508(d)’s date-of-accident formulation and then read that provision into the statute when it is not readily found there. We have said that we will not do that, especially when a workers compensation statute is plain and unambiguous. Bergstrom v. Spears Manufacturing Co., 289 Kan. 605, 607-08, 214 P.3d 676 (2009) (citing Graham, 284 Kan. at 554); see Casco v. Armour Swift-Eckrich, 283 Kan. 508, 521, 154 P.3d 494 (2007).
Moreover, the pitfall in using the reasonableness maxims to interpret a statute contrary to its plain language is that occasionally we have evidence that the legislature intentionally enacted a provision after being informed of potential consequences which some might view as unreasonable. This is such a case. The legislative history reveals that the legislature was informed of the potential results which Westar now dubs absurd, illogical, and unreasonable, but it chose to enact the statute anyway, without changing the plain language. So long as it remains within constitutional boundaries, the legislature has the authority to intentionally and knowingly enact statutory provisions that may lead to unreasonable results. In that event, a judicial rewriting of the statute is not the appropriate remedy.
The 2005 amendment to K.S.A. 2010 Supp. 44-508(d) was part of Substitute H.B. 2142. The original version of the bill stated as follows:
"In cases where the accident occurs as a result of a series of events, repetitive use, cumulative traumas or microtraumas, the date of accident shall be the earliest of the following dates: (1) The date upon which the employee gives written notice to the employer of the injuiy; (2) the date the condition is diagnosed as work-related, providing such fact is communicated in writing to the injured worker; or (3) the first day the authorized physician takes the employee off work due to the condition or restricts the employee from performing the work which is the cause of the condition.” H.B. 2142.
The House Commerce and Labor Committee specifically considered the “date of accident” portion of the amendment and received testimony from an administrative law judge, Bruce E. Moore. Judge Moore testified that, from the courts’ perspective, no one approach to the date of accident was better than another. “Any approach would be somewhat arbitrary where the precise date of injuiy is unknown. However, the date of accident is not something that should be susceptible to manipulation by either party, either to increase or decrease the benefits due, or to shift liability between carriers.” Minutes, House Commerce and Labor Comm., February 7, 2005. Judge Moore reviewed the different approaches taken by Kansas courts to determine the date of accident in repetitive use injuries, recognizing the “last day worked” rule and the ways it had been applied in recent cases. He noted that H.B. 2142 proposed to change the way that the date of accident was determined, pointing out that the first two alternatives— written notice to the employer and the date the condition was diagnosed as work related — were subject, to manipulation, while the third alternative stopped short of the last-day-worked rule.
Ironically, Judge Moore specifically discussed two consequences which Westar now relies on to establish unreasonableness, i.e., the impact on the notification provisions and on the calculation of benefits. After pointing out that K.S.A. 44-520 requires a worker to give notice of an accident within 10 days of its occurrence unless he or she had just cause to extend that period to 75 days, Judge Moore opined that, under the proposed language, if the accident date was established by the claimant’s notice to the employer, K.S.A. 44-520 would effectively cease to apply in repetitive use claims. Also, Judge Moore pointed out to the committee that the right to monetary benefits accrues on the date of accident, and the wage in effect on that date determines the benefit rate at which workers compensation benefits are paid. See K.S.A. 44-535; K.S.A. 2010 Supp. 44-511.
After hearing testimony throughout the next month, the committee appointed a subcommittee to develop recommendations regarding the bill. The subcommittee resolved to substitute the present language of K.S.A. 2010 Supp. 44-508(d) for the original language. The House passed the substituted bill on February 24, 2005, and the Senate passed the substitute for H.B. 2142 on March 24. House J. 2005, p. 242. Sen. J. 2005, p. 395; see L. 2005, ch. 55, sec. 1. Pointedly, the substituted language did not mention the last-day-worked rule and did not correct the potential consequences of which Judge Moore warned in his committee testimony.
With that legislative history, we do not need to employ the presumption that the legislature knew the existing law when it amended 44-508(d); we know that it was explicitly told of the last-day-worked rule. See State v. Spencer, 291 Kan. 796, 825, 248 P.3d 256 (2011) (citing Hawley v. Kansas Dept. of Agriculture, 281 Kan. 603, 631, 132 P.3d 870 [2006]) (we presume the legislature knew existing law and intended to change that law with its enactment); Martin v. Kansas Dept. of Revenue, 285 Kan. 625, 631-32, 176 P.3d 938 (2008). Moreover, the notion that the legislature expressed its intent through the language of the statutory scheme it enacted is more than a presumption in this case. See State ex rel. Stovall v. Meneley, 271 Kan. 355, 378, 22 P.3d 124 (2001) (courts presume legislature expresses its intent with the language employed). Accordingly, we must decline Westar’s invitation to change the language of K.S.A. 2010 Supp. 44-508(d) to make the law what Westar argues that it should be or even what we think it ought to be. The Board and the Court of Appeals correctly interpreted and applied K.S.A. 2010 Supp. 44-508(d) as it is written, which results in the assignment of March 28, 2006, as Saylor’s date of accident.
Before moving on, we pause to address Westar s argument that our recent decision in Mitchell, 291 Kan. 153, upholds the last-day-worked rule notwithstanding the 2005 amendment to 44-508(d). We acknowledge that Mitchell contained language suggesting that setting a date-of-accident for repetitive trauma injuries as the worker s last day worked was in agreement with the statutory provisions. However, in that case, we were not asked to interpret the statutory date-of-accident provisions. Rather, the issue involved a dispute between two insurers as to which company would pay for the worker’s injuries. The determinative question was whether the worker’s injuries were all attributable to a single accident where the worker’s left thumb was broken or whether a portion of his injuries were attributable to repetitive traumas suffered after returning to work with the broken thumb. If a portion of the injuries were attributable to repetitive use, then any of the potential dates of accident described in K.S.A. 2010 Supp. 44-508(d) would have been after the insurance company change, i.e., the date-of-accident determination was not critical to the outcome of the issue. Nevertheless, we clarify here that the judicially created last-day-worked rule is no longer the bright-line rule for determining the date of accident in repetitive trauma cases, but rather the provisions K.S.A. 2010 Supp. 44-508(d) shall govern wherever applicable.
Unauthorized Medical Bills
Westar complained that it should not have been responsible for paying all of the medical bills associated with Saylor’s knee replacement surgeiy because it did not authorize the medical treatment. K.S.A. 2010 Supp. 44-510h(b)(2) provides that an employee may consult with any health care provider without application or approval, but that the employer is only liable for fees and charges up to a total amount of $500 for such unauthorized medical services. However, the Court of Appeals found Westar hable for Saylor’s unauthorized medical bills under the provisions of K.S.A. 44-510j(h), which states:
“If the employer has knowledge of the injury and refuses or neglects to reasonably provide the services of a health care provider required by this act, the employee may provide the same for such employee, and the employer shall be liable for such expenses subject to the regulations adopted by the director.”
Westar argues that the Court of Appeals interpretation of K.S.A. 44-510j(h) is contrary to the statutory framework of the Workers Compensation Act and conflicts with prior appellate decisions.
Standard of Review
To the extent our decision is based upon an interpretation of the meaning of K.S.A. 44-510j(h), or any other statute, our review is unlimited, and we need not give any particular deference to the Board’s interpretation of the statute. Kansas Dept. of Revenue, 290 Kan. at 567. Where the result turns on a factual finding, we will uphold the Board’s decision if it is supported by substantial evidence, even though there is other evidence in the record supporting contrary findings. Graham, 284 Kan. at 554.
Analysis
Westar contends that the Court of Appeals misinterpreted K.S.A. 44-510j(h) because the panel apparently did not comprehend or appreciate the procedural workings of the Workers Compensation Act. Interestingly, the Court of Appeals panel was reviewing the Board’s decision to apply K.S.A. 44-510j(h), and one might assume that the Board would comprehend and appreciate the procedural workings of the Act which it is charged with enforcing.
Nevertheless, Westar’s petition for review offers its explanation that the Act contemplates that the employer will select the medical care provider for an injured worker. If the employee does not obtain the appropriate authorization to use a particular health care provider, the maximum liability of the employer is $500 under K.S.A. 2010 Supp. 44-510h(b)(2). Moreover, Westar opines that if an employee wants benefits that the employer has not voluntarily provided, then the worker must follow the procedures set forth in K.S.A. 44-534a(a), i.e., serve written notice of intent on the employer, followed by the filing of a certification at least 7 days later, followed by an application for preliminary hearing. Westar asserts that the few cases which have considered K.S.A. 44-510j(h) have only applied its provisions to hold the employer hable for unauthorized medical bills where the worker received emergency medical treatment that precluded his or her ability to follow the K.S.A. 44-534a(a) procedure. In other words, Westar contends that K.S.A. 44-510j(h) only applies to emergency medical services.
Again, Westar asks us to rewrite a seemingly straight-forward statute to comport with what it believes the law should be. K.S.A. 44-510j(h) says nothing about medical emergencies; it makes no reference to the procedures set forth in K.S.A. 44-534a(a). Moreover, the fact that the few cases citing K.S.A. 44-510j(h) involved medical procedures which had to be performed without delay does not mean that employer liability has been judicially restricted to emergency medical services. To the contrary, the statute clearly conveys the message that if Westar knew that its employee was suffering from a work-related injury and refused or neglected to provide medical services to address that injury, the employee was permitted to provide his or her own doctor at Westar’s expense. Moreover, that plain reading of the statute comports with K.S.A. 2010 Supp. 44-508(d)’s expression of the purpose of the Workers Compensation Act, which is “that the employer bear the expense of accidental injury to a worker caused by the employment.”
Westar’s real complaint appears to be that it did not have notice that Saylor was claiming a work-related injury to his knee until the medical services had already been performed. However, that is a fact question which the Board resolved in favor of Saylor. Certainly, the record contains evidence from which a factfinder might have determined that the employer did not have the requisite knowledge of injury to trigger the application of K.S.A. 44-510j(h). But, as the Court of Appeals noted, appellate courts review the evidence in the light most favorable to the prevailing party and do not reweigh competing evidence or assess credibility of witnesses. Saylor, 41 Kan. App. 2d at 1050.
Like the Court of Appeals, we must find that there was substantial competent evidence to support the Board’s finding that Westar had knowledge of Saylor’s work-related injury on Februaiy 6,2006, and that Westar refused or neglected to provide medical treatment for that injury. That factual finding triggers the application of K.S.A. 44-510j(h), rendering Westar liable for the cost of Saylor’s knee replacement surgery.
Affirmed.
Beier and Moritz, JJ., not participating.
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The opinion of the court was delivered by
YAummcE, J.:
On the 7th of March, 1868, defendants in error filed their ex pcurte petition in the office of the clerk of the district court of Jefferson county under an act of the legislature entitled “An act to authorize the erection and maintenance of Mill-Dams and Mills,” approved February 6th, 1867, in which petition, among other things, said defendants in error in substance said they “have erected and are maintaining upon their own land in the village of Osawkee, in the county and State aforesaid, it being in the southeast quarter of section thirty, in township nine, of range eighteen, in said county, across the Grasshopper Creek, a water-course which is not navigable, a mill-dam, and they have raised the water within the banks of said stream, by means of said dam, nine feet above low-water mark, and by reason thereof have damaged the following tracts of land on said stream, to-wit: * * the north-half of section 18, township 9, range 18, owned by S. Gephart and E. Harding. * * * Said dam was erected for the purpose of obtaining a water-power to be applied to the running of a grist and saw mill. They therefore pray the court to appoint commissioners as provided by law, to meet at the site of said mill- dam, at such time as the court shall specify, to inquire touching the matters herein contained, and to make separate assessments of the damages which have resulted to any person or persons by reason of the erection and maintaining said mill-dam.”
Commissioners were appointed by the court under the act aforesaid, to “view and assess the damages sustained, by reason of the erection and maintenance of a mill-dam across the Grasshopper Creek, to the tracts of land belonging to the parties in said petition specified,” and they assessed no damages to Elijah Harding, and so reported. From this assessment or report Elijah Harding the plaintiff in error appealed to the district court, where a trial was had at the November Term, 1868, of said court, and the jury found for the defendants in error. Plaintiff in error moved for a new trial, which motion was overruled, and the court rendered judgment in favor of defendants in error against plaintiff in error for .costs; and this is a proceeding in error to reverse said judgment.
The first point made by the plaintiff in error is, that the said act of February 6th, 1867, commonly known as the Mill-Dam Act, is unconstitutional and void, and therefore that all the proceedings under it had in this case are mere nullities. If this point is well taken we hardly see how the plaintiff in error could have been injured by any ruling of the district court. His whole action is founded on said statute. The original proceedings upon which the proceedings in the district court and the proceedings in this court are founded were instituted under said act. It' was the plaintiff in error who took the proceedings into the district court. It was the plaintiff in error who asked affirmative relief under said statute; and it is the plaintiff in error who brings the case to this court. If the said act was void, and the said proceedings a nullity, what could the district court do more than to dismiss the proceedings at the cost of the plaintiff, or appellant, who took them there? The district court however allowed the plaintiff in error to litigate the question in that court, whether he was entitled to damages as against the defendants in error, and upon a verdict of the jury against the plaintiff in error the court rendered a judgment against him for the costs of the suit only.
But said act is not unconstitutional.- This we have just decided in the case of Venard v. Cross, (ante, p. 248;) and we have so decided upon almost if not entirely the unbroken current of authority in this country. But it is claimed that all the authorities upon this subject violate reason and principle, and therefore that we should abandon the .authorities and cling to reason and principle only. Now it may seem'a1 little presumptuous for any one to assume to be so much abler to determine questions upon reason and principle, and to be so much wiser than the eminent courts who have heretofore declared in favor of the validity of such acts; but without stopping to question the right of any one to do so, we will pass to the consideration of the question itself, remarking by the way, however, that if all those courts were ignorant, weak, or mistaken, it undoubtedly shows the weakness of human reason, the weakness of human intellect, and shows how incompetent even the learned are to grasp great principles, how incompetent even the wisest are to reach to the foundation of great constitutional questions; and considering the general frailty of the human intellect, perhaps it would not be wholly out of place to suggest that it is possible that even we — wise as we suppose ourselves to be — who differ from these courts, might possibly be mis taken ourselves. Such, would not be wholly at variance with the experience of mankind. The wisest of us have probably at some time, and probably many times during our lives, found ourselves mistaken, notwithstanding our general inability to discover our own mistakes. But suppose we should abandon the authorities and depend entirely upon reason and principle for our guidance: what would likely be the consequences? We would at once abrogate the very foundation of all stability in human jurisprudence, and send the courts adrift without compass or chart. At one time the courts would decide a question a certain way, because they would believe such decision to be founded upon reason and principle; but soon finding themselves mistaken, they would wheel about, reverse their former decision, and decide the question another way, again supposing the decision to be founded upon reason and principle. But soon again they would undoubtedly find it necessary upon reason and principle to modify both their former decisions and decide still another way; and so on, ad imJkdUim. It is admitted that such cases might seldom occur; but still they would occur. The temptation to reach out into the great unknown, beyond where the human intellect has ever before gone, would be very great. The temptation to startle the world with the announcement of some hitherto undiscovered truth, would be almost irresistible. But however strong the temptation, or however liable the courts would be to yield thereto, such attempted grasp for new principles, or the announcement of them, would not come within the legitimate province of the judiciary. Let philosophers and political speculators discover, discuss, and- promulgate new principles, and after long discussion and repeated trial, if such new principles are found to be true and valuable, then let the proper law-makers, and not the courts, enact them into laws. It is well known that not more than one in ten of all the supposed new principles that are imagined to be discovered are in fact principles at all. They are not founded in nature, or reason, and generally have no other or better' foundation than the mere whim or fancy of those who originate them, and are generally worse than valueless or useless. And if courts, who are about as liable to entertain whims and vagaries as other men of the same education, ability and experience, should weave such whims into the law, it might prove disastrous in the extreme. It would be much more disastrous than though the legislature should enact them into laws; for, as a rule, the legislature acts upon the future only, while the courts act upon the past. The legislature says this shall hereafter be law. The courts say this is and has been the law. 'When the legislature enacts that a certain thing shall be law, the people can regulate their conduct accordingly, however bad the act may be; but when the courts enact that a certain thing which was in fact not the law before shall be considered as having been the law in the past, it is impossible that the people could have regulated their conduct according to such enactment of the courts. And further, if the authorities are to be abandoned, it will no longer be necessary for lawyers to study the decisions, to ponder over volumes of legal lore, to ascertain what the law is upon any given subject, and be able to tell their clients what it is, for the law will no longer be found in the law books, but in the judges’ brains. And if one does study the law books he may at any time be surprised if not astonished at the announcement of legal principles he never before dreamed of. But such a state of things could not last long. The lawyers would soon pray to have courts not possessed of so much intuitive wisdom, locked up within their own capricious brains, and pray to have courts who could know the law only as it is to be found in the law books. Other classes, too, would desire a change. They would pray for “ a government of laws, and not a government merely of men.”
It must be admitted that the decisions of courts are sometimes conflicting; and in such cases subsequent decisions must be against either one set or the other of such prior decisions. It must also be admitted that the decisions of courts are sometimes so palpably erroneous that they must be overruled whenever the same question is again brought before the courts. But these are only exceptional cases. The rule is, that when a decision has once been made settling a principle of law, the principle must be considered as so settled until changed by the proper law-making power. The more decisions there are one way, the firmer the principle is considered to be settled. It must also be admitted that the decisions of other states are not authorities to the same extent as decisions of our own State. As a rule they are only advisory. If they are founded on statutes differing from ours, they are not authorities at all. If they are founded upon statutes like ours, or upon the common law, they are strongly advisory. If they are founded upon constitutional provisions or statutes identical with ours, and from which ours have been taken, if such decisions were made before the adoption of ours, they are almost conclusive authority. The decisions already mentioned, many of which we will hereafter more specifically refer to, were made in other States under constitutional provisions almost identical with ours, before ours was adopted, and from which ours was probably taken. Hence as authorities these decisions are almost conclusive upon the question under consideration. (Comm’rs of Leavenworth v. Miller, 7 Kas., 479, and cases there cited.)
Among the decisions above mentioned which sustain, the validity of the Mill-Dam Acts, either directly or indirectly, we would refer to the following: Shaw v. Wells, 5 Cush., 537; Miller v. Frost, 14 Minn., 365; Omstead v. Camp, 33 Conn., 532; Gay v. Caldwell, Hardin, 68; Cowan v. Glover, 3 A. K. Marshall, 357; Kepley v. Taylor, 1 Blackf., 492; Chapman v. Graves, 8 Blackf., 308; Harding v. Goodlet, 3 Yerger, 41; Newcomb v. Smith, 1 Chand. (Wis.) 71; Brower v. Merrill, 3 Chand., 46; Stephens v. Marshall, 3 Chand., 222; Johnson v. Roane, 3 Jones Law (N. C.) 523; Burgess v. Clack, 13 Iredell, 109; Hendrix v. Johnson, 6 Porter (Ala.) 472; Wooster v. Manf. Co., 39 Maine, 246; Nelson v. Butterfield, 21 Maine, 220; Lumley v. Braddy, 8 Iowa, 33; Hoag v. Denton, 20 Iowa, 118; Hook v. Smith, 6 Mo., 225; Hawkins v. Lawrence, 8 Blackf., 266; McKinney v. Smith, 21 Cal., 374, 381; Hazen v. Essex Co., 12 Cush., 475; McNally v. Smith, 12 Allen, 455; Boston v. Roxbury Mill Corp., 12 Pick., 467; Wolcott W. M. Co. v. Upham, 5 Pick., 292; Burnham v. Storey, 3 Allen 378; Wright v. Pugh, 16 Ind., 106; 12 Ind., 657; 1 T. B. Mon., 58; 4 J. J. Marsh., 40; 4 Bibb, 464; 4 B. Mon., 410; 8 B. Mon., 533; 9 Wis., 166; 10 Minn., 30; 11 Minn., 253; 4 Harrington, (Del.) 197; 2 Bland, (Md.) 99; 10 Iredell, 100; 7 Iredell, 24; 7 Leigh, 446, 562; 10 Leigh, 332; 1 Rob., (Va.) 468; 4 Rand, 58; 33 Me., 480; 36 Me., 36; 42 Me., 64; 40 Me., 317; 53 Me., 583; 1 Woodb. & M., 76, 87; Angell on Watercourses, Ch. 12, and the numerous cases there cited; Washburn on Easements and Servitudes, 321 to 352, ch. 3, § 5, and eases there cited.
We suppose that it will be admitted that there is no provision or provisions in the constitution that either expressly or impliedly prohibits the legislature from passing a Mill-Dam Act. The only question then is, whether such power lias been by any provision of the constitution conferred upon the legislature. Section 1, art. 2 of the constitution, confers all the legislative power of the State upon the legislature; and legislative power is simply the law-malting power. Therefore, if an act of the legislature authorizing the owner of land to build a mill dam on his own land so high that it will cause the water to flow back upon another person’s land and damage it, and providing for paying such damage, is in its nature and essence a law, then the act is constitutional; but if such act is not in its nature and essence a law, then it is of course unconstitutional. There is only one reason given why such an act is not in its nature and essence a law, and that'reason is that such an act provides for taking private property for private use. We suppose that it will be admitted that, if the act does provide for taking private property for private uses solely, it is unconstitutional. On the other hand, we suppose it will be admitted even by the plaintiff in error, that if the mill dam is authorized for a public use solely, that the act is constitutional. Now if the mill is to be absolutely a private mill, the defendants in error would have no right to erect their dam, as the dam would in such a ease be solely for a private use. The fact, however, is that the mills provided for under our statute, (chapters 65, 66, Gen. Stat., 575 to 580,) are neither absolutely private mills nor absolutely public mills, but they partake of the character of both. They might perhaps properly be called quasi public mills. It is uot necessary for us to say what would be our decision upon this question if the same was a new question in this country. But it is not a new question. It has been long and well settled by legislative, executive, and judicial construction, practice, and usage; and we are not now at liberty to depart from such construction, practice, and usage. If we should do so, we should be making laws, and not merely construing them. (See authorities aiready cited.)
* In the case of Talbot v. Hudson, (16 Gray, 423 to 426,) the supreme court of Massachusetts hold the following language: “ In many cases there can be no difficulty in determining whether an appropriation of property is for a public or a private use. If land is taken for a fort, a canal, or a highway, it would clearly fall within the first class; if it is transferred from one person to another, or to several persons, solely for their peculiar benefit and advantage, it would as clearly come within the second class. But there are intermediate cases where public and private interests are blended together, in which it becomes more difficult to decide within which of the two classes they may be properly said to fall. There is no fixed rule or standard by which such cases can be tried and determined. Each must necessarily depend upon its own peculiar circumstances. * * * The act is therefore in a certain sense for a private use, and inures directly to the individual advantage of such owners. But this is by no means -a decisive test of its validity. Many enterprises of the highest public utility are productive of great and immediate benefits to individuals. A railroad or canal may largely enhance the value of private property situated at ornear its termini; but it is not for that reason any less a public work, for the construction of which private property may well be taken. We are therefore to look further into the probable operation and effect of the statute in question in order to ascertain whether some public interest or benefit may, not be likely to accrue from the execution of the power conferred by it upon the defendants. If any such can be found, then we are bound to suppose that the act was passed in order to effect it. "We are not to judge of tbe wisdom or expediency of exercising the power to accomplish the object. The legislature are the sole and exclusive judges whether the exigency exists which calls on them to exercise their authority to take private property. If a use in its nature public can be subserved by the appropriation of a portion of the plaintiff’s dam in the manner provided by this act, it was clearly within the constitutional authority of the legislature to take it, and in the absence of any declared purpose, we must assume that it was taken for such legitimate and authorized use. * * * It has never been deemed essential that the entire community, or considerable portion of it, should directly enjoy or participate in an improvement or enterprise in order to constitute a public use, within the true meaning of these words as used in the constitution. Such an interpretation would greatly narrow and cripple the authority of the legislature, so as to deprive it of the power of exerting a material and beneficial influence on the welfare and prosperity of the state. In a broad and comprehensive view, such as has been heretofore taken of the construction of this clause of the declaration of rights, everything which tends to enlarge the resources, increase the industrial energies, and promote the productive power of any considerable number of the inhabitants of a section of the state, or which leads to the growth of towns and tire creation of new sources for the employment of private capital and labor, indirectly contributes to the general welfare, and to the prosperity of the whole community. It is on this principle that many of the statutes of this commonwealth, by which private property has been heretofore taken and appropriated to a supposed public use are founded. Such legislation has the sanction of precedents, coeval with the origin and adoption of the constitution; and the principle has been so often recognized and approved as legitimate and constitutional that it has become incorporated into our jurisprudence. One of the earliest and most familiar instances of the exercise of such power under the constitution is to be found in the statute of 1795, ch. 74, for the support and regulation of mills. By this statute, the owner of a mill had power, for the-purpose of raising a head of water to operate his mill, to overflow the land of proprietors above, and thereby to take a permanent easement in the soil of another, to the entire destruction of its beneficial use by him, on paying a suitable compensation therefor. Under the right thus conferred, the more direct benefit was to the owner of the mill only; private property was in effect taken and transferred from one individual for the benefit of another, and the only public use which was thereby sub-served, was the indirect benefit received by the community by the erection of mills for the convenience of the neighborhood, and the general advantage which accrued to trade and agriculture by increasing the facilities for traffic, and the consumption of the products of the soil. Such was the purpose of this statute, as appears from the preamble to the provincial acts of 8 and 13 Anne, from which the statute of 1795 was substantially copfied. It is thereby declared that the building of mills has been ‘ serviceable for the public good and benefit of the town, or considerable neighborhood.’ Anc. Chart., 388, 404.” (16 Gray, 423 to 426.)
Judge Cooley says that “ The settled practice of free governments must be our guide in determining what is a public use.” (Cooley Const. Lira., 533.) Chancellor Kent says that “ It undoubtedly must rest, as a general rule, in the wisdom of the legislature to determine where public use requires the assumption of private property.” (2 Kent Com., 340.) And Chancellor Walworth says that “ If the public interest can be in any way promoted by the taking of private property, it must rest in the wisdom of the legislature to determine whether the benefit to the public will be of sufficient importance to render it expedient for them to exercise the right of eminent domain, and to authorize an interference with the private rights of individuals for the purpose.” (Beckman v. S. & S. R. R. Co., 3 Paige, 73.) There are many decisions that sustain what these eminent jurists have said upon this subject. (See cases cited in counsels’ briefs.)
We have purposely refrained from discussing said mill-dam act in all its bearings, or to even intimate when or where, or to what ldnds of mills,' it will apply. We simply wish now to decide that it is not unconstitutional, and that there are cases where, it may have some application.
> The judgment in this case must however be reversed for another reason. The court below refused to allow any evidence to go to the jury to show, and refused to allow the jury to consi^er, whether the plaintiff in error would be put arL7 additional expense in making a crossing for wagons, etc., over the stream on his own land, after the dam was erected and the stream raised in consequence thereof. This was error. The plaintiff in error claims, and we think correctly, that the true measure of his damages was the difference in the value of the land without the mill dam erected, and the value of the land with the mill dam erected. (Cooley Const. Lim., 568, and cases there cited; Angell on Wat., §§ 472 to 474, and cases cited; 1 Redf. on Rlys., 262, and cases cited; Palmer Co. v. Ferrill, 17 Pick., 58, 66.) Every fact tending to show said difference in value would be competent to be considered by the jury. The plaintiff in error would be entitled to his full damage. He would be entitled to show every fact that would tend to show that his land was less valuable, or could not be so conveniently used, with the mill-dam existing, as without it. And he would be entitled to show how much if anything it would cost more, in consequence of the mill dam, than without, to put his land in a condition to be used. It does not follow however from what we have said that the jury would be bound to give to the plaintiff in error damages sufficient to make a good crossing on said stream, or even any damages; for the benefits of the mill dam may have been much more than the damages; but the plaintiff in error ’had a right to have the matter considered by the jury.
Por the error mentioned thé judgment below must be reversed, and the cause remanded for further proceedings in accordance with this opinion.
Bjngman, C. J., concurring.
Brewer, J., not sitting in the case. | [
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The opinion of the court was delivered by
Rosen, J.:
Joseph Allen Pace was charged with aggravated criminal sodomy, battery against a law enforcement officer, two counts of obstructing official duty, attempted residential burglary, and assault of a law enforcement officer. Pursuant to a plea agreement, Pace pleaded guilty to one count of aggravated criminal sodomy and all other counts were dismissed. Pace filed a motion for a downward durational sentencing departure. Pace’s testimony was the only evidence offered at the sentencing hearing. The district court denied Pace’s motion for downward durational departure and imposed a life sentence with a mandatory minimum term of imprisonment of 25 years. The court also ordered lifetime electronic monitoring when Pace was paroled.
Parole Eligibility
Pace argues that both K.S.A. 2008 Supp. 22-3717(b)(2), establishing parole eligibility after 20 years, and K.S.A. 21-4643(a), establishing parole eligibility after 25 years, are applicable to his sen tence; therefore, Pace argues that the rule of lenity requires that any reasonable doubt about the meaning of the statutes be resolved in his favor. We have recently decided this issue in State v. Chavez, 292 Kan. 464, 254 P.3d 539 (2011). K.S.A. 21-4643(a) is the more specific statute; therefore, K.S.A. 21-4643(a) controls Pace’s sentence. See State v. Mendoza, 292 Kan. 937, 258 P.3d 383 (2011); Chavez, 292 Kan. 464, Syl. ¶ 1.
Lifetime Electronic Monitoring
Pace challenges the district court’s imposition of lifetime electronic monitoring as a condition of parole. Imposition of parole conditions, including lifetime electronic monitoring, is the province of the parole board and lies outside the jurisdiction of the sentencing court. Mendoza, 292 Kan. at 935; Chavez, 292 Kan. at 470; State v. Jolly, 291 Kan. 842, 848, 249 P.3d 421 (2011). We vacate the portion of the sentence relating to electronic monitoring.
Downward Departure
Pace argues that the district court erred in denying his motion for a downward durational departure, providing the following mitigating factors: (1) Pace’s age, (2) the legislative inflation of his criminal history, (3) his poor upbringing, and (4) his mental limitations. The State responds that the district court heard testimony from Pace, arguments from both sides, and made a specific ruling as to why the factors Pace offered were not substantial and compelling reasons for a departure. Our standard of review on the denial of a sentencing departure is abuse of discretion.
“Judicial discretion is abused if judicial action (1) is arbitrary, fanciful, or unreasonable, i.e., if no reasonable person would have taken the view adopted by the trial court; (2) is based on an error of law, i.e., if the discretion is guided by an erroneous legal conclusion; or (3) is based on an error of fact, i.e., if substantial competent evidence does not support a factual finding on which a prerequisite conclusion of law or the exercise of discretion is based.” State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011) (citing State v. Gonzalez, 290 Kan. 747, 755-56, 234 P.3d 1 [2010]).
At sentencing, the district court reviewed the mitigating factors presented by Pace. The court found that Pace’s age of 22 at the time of the crime did not make this a case of youthful indiscretion. The court was not persuaded by Pace’s arguments regarding the legislative inflation of his criminal history score because this was sentenced as a Jessica’s Law case and criminal history score does not determine the sentence. The court considered Pace’s background, saying:
“It’s a sad stray. Perhaps it’s a story where the system of social services has failed Mr. Pace. I frankly wish we could roll the clock back and provide some intervention and hope that that intervention might have led us to a different result than we have here today.
“But the fact is I have to deal with the situation as it presents itself, not as it may have been or perhaps should have been. The bottom line is that Mr. Pace has committed a very serious sexual offense for which the Legislature has specifically provided a penalty. When I look at the mitigating factors, none of them apply. This is not a case where the victim was an aggressor, or even a participant. This is not a case where Mr. Pace played a minor, or passive roll.
‘We’ve spoken of alcohol. This is not a ease where Mr. Pace suffered a continuing pattern of physical or sexual abuse that somehow made him responsible for what he did. And I can’t say that this is a case where the degree of harm or loss attributed to this crime is less than typical. I don’t have the benefit of the victim, or there’s no evidence presented by the defendant.
“So the bottom line is I cannot and do not find substantial and compelling reasons to depart from the legislatively provided for punishment, and the defendant’s motion for a durational departure is denied.”
The district court orally reviewed the mitigating and aggravating factors advanced by Pace and the State, engaging in an appropriate weighing of the competing considerations. The court considered each of the factors presented and concluded that there were no substantial and compelling reasons to grant Pace’s motion for a downward durational sentencing departure. The court’s denial of the downward departure motion was reasonable.
Pace’s life sentence with a mandatory minimum term of imprisonment of 25 years is affirmed. The parole condition of lifetime electronic monitoring is vacated. | [
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The opinion of the court was delivered by
Kingman, O. J.:
This was a prosecution instituted under section one of chapter 113, Gen. Stat. The prosecution was originally instituted before a justice of the jieace, upon a complaint consisting of an affidavit. The appellant having been convicted appealed to the district court, where he was again tried upon the complaint, and again convicted. From this last judgment he appeals to this court. The questions for determination are, first, the sufficiency of the affidavit; second, the extent and effect of the condemnation of the right of way for the Atchison, Topeka & Santa Fe Eailroad Co. through the land of the prosecuting witness, Blackshire.
I. The case being in the district court on appeal, it was proper that it should be tried upon the original complaint, if that sufficiently stated the offense: § 22, ch. 83, Gen. Stat. The affidavit states the offense in the words of the statute. The offense is a misdemeanor created by statute. In regard to such offenses it is a well-settled rule that
it is sufficient to describe them in the words of the statute. • To this rule there are some exceptions; but as this case does not come within any of the exceptions it is not necessary to notice them here. That the general rule is as we have stated, see The United States v. Mills, 7 Peters, 142, and Whiting v. The State, 14 Conn., 488, and cases there cited. It is insisted that, as there was no allegation of value of the clay dug up by the defendant, the complaint is therein defective. The offense does not in any way consist in the value of the thing injured. “ It is uniformly and explicitly laid down that an averment of the value is unnecessary, excepting where it determines the jurisdiction or the punishment:” Whiting v. The State, supra. A statement of the value of the thing injured is not only not required by the statute, but its averment is not necessary in any way to apprise the accused of his offense, or to enlighten the court in fixing the punishment, orto establish jurisdiction. The statute referred to provides redress in two ways for certain "wrongs done to the property of individuals; one, by a public prosecution; the other, by a civil action brought by the party injured. In the latter case he recovers treble the value of the thing injured, broken, destroyed, or carried away; audit becomes necessary to allege a value, not because the statute requires it, but because the necessities of the case require it as a predicate for testimony, and a limit as to recovery, and also to determine jurisdiction. In the criminal prosecution it is not necessary for either pur pose, and its insertion is of no importance, and its omission of no consequence. The two proceedings are in no way dependent on each other, but either, or both methods may be resorted to, as may be deemed best.
II. The other errors complained of arise from the instructions given and refused. To understand the questions involved a brief statement of the facts becomes necessary: The defendant, by direction of the Atchison, Topeka & Santa Ee Railroad Co., cut a ditch from their track eighty-five feet through the kind of Blackshire. The ditch was necessary for Ike road to protect its embankments, and was no ¡ai.ger than the necessities of the road required to conduct the natural flow of the water, and straightened the natural channel of a small stream crossed by the railroad. It appears further, that the county commissioners had condemned the right of way through the land of Blackshire, 100 feet in width, and had made no other condemnation of the land. No mention was made in their report of any other right than this. No condemnation of any right to cut drains or ditches in the lands of Blackshire adjoining said right of way. Under this state of facts, if the road had the right to cut the ditch on Blaekshire’s land, then the instructions given were wrong, and and those refused should have been given. If the road had no such right, then the court properly gave the law to the jury.
It is not doubted that the Railroad Company may obtain by purchase or condemnation as much land beyond the 100 feet as may be necessary for cuttings and embankments, and to make them secure, and grounds for side tracks, workshops, depots, and water stations, and so much as may be necessary to make proper water-drains for the security of the road. All these are necessary appendages of the road, without which it could not be properly constructed, or safely and successfully operated. But it does not follow, because these are necessary appendages of the road, that the company obtained them as rights incidental to its condemnation of the right of way 100 feet in - ° i . , breadth. (Jn the contrary, when the rights or , ° easements are taken by condemnation, the proceed ings must show definitely and precisely what is taken, and what the owner parts with. Nothing is taken by implication or intendment. The condemnation is, in itself, an arbitrary appropriation of the property of an individual, without his consent, for a public use, to be controlled by a corporation. When this is done it must as accurately state the exact extent of the appropriation as a deed, and beyond the limits thus ascertained and defined, nothing' is taken. Hazen v. The Boston & Maine R. R. Co., 2 Gray, 574. The land appropriated by the Eailroad Company was just 100 feet in width, and no more. That is just what was condemned; what was paid for; and beyond that limit they obtained no right whatever, not even an easement which would authorize them to run a wheelbarrow over the adjacent lands to repair their road. If they needed more for drainage, or any other purpose necessary for the road, they must obtain it by purchase or condemnation, and make compensation therefor. It is insisted that as the application for the county commissioners to act under section 81, ch. 23, Gen. Stat., was not only for them to condemn lands for the right of way, but among other things to condemn the land necessary for making proper drains, that therefore the commissioners have considered such matters as those of drainage, and so have taken them into account in their estimate of damages for the right of way through the land of Blackshire, and as an incidental injury thereto by reason of the construction of the railroad. This is doubtless true so far as the drains are confined to the land taken; but if it is to be extended to a vague, uncertain, wandering right to make drains on another man’s land, as their necessities may from time to time indicate, then indeed is the extent of a man’s light over his own possessions in a most precarious, condition. He would not find it in the report of the commissioners. It would at all times be subject to the necessities of the railroad. A few rods of his land are taken for a roadway, about which he cares .nothing, and for which be receives a mere nominal consideration; but if, as claimed it drags after it this incidental right of cutting drains through any part of his land, he may find his cellar invaded by the exercise of this right, his door-yard dug up, or his orchard destroyed, as the necessities of the road may from time to time require; for if this right of drainage is obtained by the condemnation, it continues as long as the company uses its easement as a right of way, and has no limit but the necessities of the road. Thus the incidental right becomes immeasurably greater than the principal. If it be said that the circumstances suggested are not likely to occur, the answer is, that we are discussing a right, and we must see how far it extends before we recognize it as having an existence. A man ought to hold his land and exercise his right on some safer and better defined basis than the forbearance of a corporation.
Put says the counsel, the owner of the land might have apjiealed from the report of the commissioners. How could he know what did not ajipear in the report, but rested only in the breasts of the commissioners? How could he know what the extent of this necessity for drainage might be? and what showing could he make on appeal? His witnesses might not know the necessities created by the building of the railroad. The counsel, in their brief, say, “ That the commissioners could not know, nor any one else, where drains might be found necessary until the road come to be constructed.” If the company with its scientific engineers could not know, how should the unskilled farmer know, and determine whether or not he would appeal? And how could tlie commissioners know in making up their estimate of damages? Again, the right of drainage rests on the same basis as the right to use the land for side tracks, depots, etc., and if one passes as an incident of the right of way for a track, then it becomes the interest of the company to actually condemn as little as possible, leaving as much as possible to flow after the fragment condemned. And where are the rights of an adjacent land-owner? Stones, sand, earth, and jierpetual easement over every portion of his land, are 'henceforth at the absolute disposal of the company. The conclusion seems monstrous. The authorities cited by the plaintiff in error, as we read them, entirely fail to reach the case under consideration. They only go to the extent of saying that such damage as must necessarily result from tbe construction of tbe road, and its protection, by acts done inside the limits condemned, are included in the assessment of damages. That is, where a right of way 100 feet in width has been condemned, whatever damages flow from the proper construction of the road within that limit will be held to have been included in the report, and no others. The court below having entertained the same opinion, and expressed and embodied them in the instructions to the jury, it follows that there was no error therein. The judgment is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Kingman, O. J.:
The practice of amending pleadings by interlineation is very reprehensible; but where the party has answered after such an amendment he cannot be heard on that point when asking a reversal. It is the duty of each court to preserve its records, and prevent their mutilation; but it would be a burlesque on the administration of justice if after a protracted trial of an important case the judgment should be reversed for a cause that in nowise affected the rights or interests of the party complaining.
This action was instituted to recover the possession of certain lands forming part of what was once the Delaware Diminished Beserve, and also for rents of said lands and for timber taken off the same. The case was tried by the court which made numerous findings of fact, and gave judgment for the plaintiffs. Erom that judgment the defendants appeal to this court. Plaintiffs and defendant Simpson claimed to derive title from and by virtue of the provisions of the treaty with the Delaware Indians made July 4th, 1866, and ratified on the 26th of said month. The plaintiffs’ title was a patent from the United States to the land dated October 26 1867 to A. Caldwell the assignee of the Missouri Eiver Bailroad Company, and a deed from Caldwell and wife to plaintiffs dated December 26, 1867. Thus the plaintiffs showed a perfect paper title in themselves, and which alone would entitle them to recover. The defendant (plaintiff in error) as a defense presented in evidence certain facts and papers which it is claimed were of themselves sufficient to establish his right to the land and prevent a recovery. The defendant read in evidence a deed from the Missouri Eiver Bailroad Company by L. T. Smith, president, to Samuel N. Simpson, dated Eeb’y 21, 1867, to the land in controversy, which deed used the following terms of conveyance: “ do hereby convey, remise, release, and forever quit-claim to the said Samuel N. Simpson, Ms heirs and assigns forever, all the right, title and interest acquired by the Missouri Biver Bailroad Company under treaty of July 4th, 1866, or that they may hereafter acquire under or by virtue of said treaty.” The deed also contained this stipulation: “ It being understood that if there are any improvements on the above described lands to be paid for under the treaty before mentioned the said Simpson shall pay for the same; and reference is also hereby made to an agreement of the parties of this date, which qualifiedly controls this deed.” This agreement which is in evidence is made by Smith, president, and Caldwell, vice-president of the road, and Samuel N. Simpson, and recites the making of the deed for the land in controversy, and covenants among other things that the company will use the same diligence to obtain a patent for this land that they do to obtain a patent for other lands purchased by said company “ under the contract of purchase of said Delaware Diminished Beserve pursuant to the terms of the treaty of July 4, 1866;” and if the company do not acquire a title to said lands Simpson shall be allowed to select other of said lands equal in amount, and the company will convey the same to the said Simpson; and Leonard T;» Smith president and Alexander Caldwell vice-president of said company covenant that “ this agreement shall be well and truly kept by said railroad company.” These papers were recorded on the 31st of March, 1868. The land was conveyed by deed of S. N. Simpson and wife to the plaintiff in error on the 28th of May 1867. The court found as a fact that the plaintiffs when they took the. conveyance from Caldwell to themselves knew that defendant Simpson was in possession of the land, claiming under the title above mentioned. The court also found that S. N. Simpson had obtained such an influence over the Indians that he was enabled to prevent them from registering as contemplated by the provisions of the treaty of July 4, 1866, and that he actually did prevent them from registering, and that he did so for the purpose of compelling the railroad company to give him a section of said lands without consideration, and the deed and agreement above mentioned were the result of Simpson’s efforts to obstruct tbe carrying out tbe provisions of the treaty, and no other consideration passed therefor; and the testimony fully sustains the findings of the court on this particular. The court further finds that the said Smith and Caldwell had never been authorized by the said railroad company or by its board of directors to sell or dispose of said lands, or to make the instruments bearing date February 21st 1867, nor had either of them been so authorized, nor did the company at any time afterwards ratify or confirm- said attempted disposition of the lands in controversy. The court found that the deed from. S. N. Simpson and wife to plaintiff in error was without consideration, and was taken by plaintiff in error by collusion with his brother S. N. Simpson, and to complicate the title to the said lands; that when he took the deed plaintiff in error had seen both of said instruments dated February 21st 1867, and had notice of the facts and circumstances which induced the making of the same. It is further found that William A. Simpson tendered Smith for the railroad company for the improvements on the premises that Simpson was to pay for the sum of fourteen hundred dollars, in the fall of 1867, which they refused to accept.
So much of the findings of fact as made by the court are "presented, that the views of this court may be more readily understood. The findings are very voluminous, and so far supported by the evidence that according to well-established principles we cannot in this court say that they are wrong. The .evidence does not show the parties concerned in the original transaction out of which this suit has grown in the most favorable light. If one party attempted to obtain a title to valuable property by obstructing the legitimate action of others, the other party removes that obstruction by stipxilations which they hasten to make valueless as far as in their power. These remarks are made in response to the comments of the eminent counsel on either side, who not only claimed the land by virtue of legal rights, but by appeals to “ conscience and a sense of justice.” This court happily has no power to enforce its own ideas of right and justice, in this or any other case. Such power would make a court a despotism, settling questions not by any fixed standard, or settled rules, but by an arbitrary decision according to tbe ever-varying notions of justice. Tbe court can only declare tbe law, and leave it to operate upon tbe facts of tbe case.
The law holds the deed of the 21st of February 1867 purporting to convey the land in controversy to Simpson by the Missouri River Railroad Company to be inoperative as a conveyance, because the parties pretending to act for the company had no authority to make such a conveyance, and their acts in the premises were never ratified by the company; and therefore the deed, as a conveyance, did not bind the railroad company. The deed of 21st of February, executed by Smith, purported to be done by the railroad company by him as president. By the contract of the same date, Caldwell, over his signature, recited that the railroad company had made such a deed. There is nothing appearing in the testimony showing that Simpson had any knowledge that Smith was acting without full authority from the company. It is claimed that because of Caldwell having so made such statement in the contract, that neither he nor those claiming under him can now be heard to say that Smith had no authority from the company to make the deed. The defendants in error took their title with a full knowledge of Simpson’s claim, and of the grounds on which it rested; therefore they are in no better condition than Caldwell himself would be, had the title remained in him. Would Caldwell have been estopped from denying that Smith had authority from the railroad company to make the deed to Simpson, which he made on the 21st of February 1867? If good faith would not permit Caldwell to deny what he had solemnly asserted under his hand, and on the faith of which Simpson had acted, then the fact that Smith had no authority from the company to make the deed is of no importance, for it is a fact that neither Caldwell nor those holding under him can be allowed to prove. It is merely saying that a man shall not show the truth as to a certain fact, as to do so would be a fraud upon some party who lias relied upon Ms previous acts in his affairs.
"We then proceed in the examination as though the deed from the railroad company was made upon sufficient authority from the company to Smith. To clear the case from obscurity we may assume that the title of the plaintiffs was also under the railroad company, though this is a point not free from great doubt; but it places the plaintiff in error in the most favorable attitude, and Ms claim in a position more advantageous than is perhaps strictly its due. "While Caldwell and those holding under him are estopped from denying that Smith had authority' to make the conveyance that he did, it is not an estoppel that created an estate, or runs with land. It grows out of the recitals in the bond signed by Caldwell, and because it was the act of Caldwell, and not out of the deed of Smith as president of the road. The deed itself is not of a character that works an estoppel against a subsequently-acquired title by the grantors. The deed itself is at most a quit-claim deed. The terms used are “ convey, remise, release, and forever quit-claim.” Such a conveyance does not prevent the grantor from acquiring subsequently a perfect title to the land, and will not estop him from asserting such subsequently-acquired title against the grantee. Bell v. Twilight, 6 Foster, 401; McCracken v. Wright, 14 Johns., 193; Woodman v. Hubble, 9 Cowen, 613; Comstock v. Smith, 13 Pickering, 116; Miller v. Ewing, 6 Cushing, 34. The true principle is thus stated: “The general doctrine prevailing in the United States is that no estate can be passed by the ordinary terms of a deed unaccompanied with covenants of warranty which is not vested in interest at the time; and that estates subsequently acquired, whether by purchase or descent, are unaffected by such previous conveyance in the hands of the grantor, or those claiming under him. This general doctrine is, however, subject to, this qualification: that where it distinctly appears from the face of the instrument without the covenant of warranty, either by recital or otherwise, that the intent of the parties was to convey and receive, reciprocally, a certain estate, the grantor will be estopped from denying the operation of the deed according to such intent.” Clark v. Baker, 14 Cal., 612; Van Renssalear v. Kearney, 11 Howard, 297. The deed from the railroad company to Simpson was simply a quit-claim deed, passing only the interest which the company then had in the land, and therefore it does not purport to convey a greater estate than the company then had, and is not affected by the provisions of §4, ch. 41, Comp. Laws, p. 354, which was in force when the deed was made. Technically, then, this deed created no estoppel.
The question then arises, what effect had the conveyance at the time it was made? In other words, had the railroad company such an interest in the land as that they could make a binding and legal contract in relation to it? The company certainly had not any legal title to the land. Neither had it any possessory right whatever. There was nothing like the right that attaches to the possession of a man who settles on the public lands open to settlement. Before such a man lias paid for his land, or proved up his settlement, he has a clear right of possession; he is on the land in conformity with law. If he sell his possessory right, and give up his improvements, the sale has usually beeú held a sufficient consideration to uphold a contract for the purchase money. But if the sale was by deed, the deed conveyed no interest in the land. Nor is this the case of a man who has entered land, paid the government for it, received a certificate of purchase, and waits the action of the proper departments of the government for his patent, for such person has an equitable title which, if there be no error, will ripen without any action of his into a perfect legal title. ITis possession is lawful, and his right to the land absolute, though his legal title may not be perfect. This case is also clearly distinguishable from those cases where claims of title are pending before boards of commissioners, and are ultimately confirmed, as in Landes v. Brant, 10 Howard, 348. In such cases the decision confirms a preexisting right, and the decision is carried into effect by a patent evidencing the preexisting right; and intermediate conveyances are upheld on the ground probably (although in some cases other reasons are given,) that the right had vested before the issue of the patent, and the patent was but the solemn and formal evidence furnished by the government of the existence of the right to the land, and as to intermediate conveyances, with covenants of warranty or seisin, the title reverted back to the time when the right accrued. Nor is this like a case where a man sells land to which he may have no right in law, and the purchaser is admitted into possession, and ultimately through that possession obtains a title, and he is sued for the purchase-money and attempts to set up these facts in defense, and will not be allowed to do so, because he cannot set up a fraud in which he participated as a bar to a recovery, as in Fackler v. Ford, 23 Howard. We have adverted to these different classes of cases, as we have been referred to them as upholding the title of plaintiff in error.
In this ease when the. deed was made the railroad company had neither the legal title nor the possessory right to a foot of the land sold. It could not have gone onto it without being trespassers. So far as the court can know it might never have obtained a right to any of the land, even had the government observed all the provisions of the treaty and the stipulations of the contract between the company and itself; for it was possible that the land would all be absorbed by the Indians who might elect to hold in severalty, as authorized by the treaty— not the tract in controversy only, but all the land in the reserve. A mere possibility is not the subject of a deed unless it be coupled with an interest: Jackson v. Catlin, 2 Johns., 258; Fairbanks v. Williamson, 7 Maine, 96. There was in this instance a possibility, one which has developed into a very substantial entity. It is difficult to determine whether it was coupled with a subsisting interest. We are inclined to think it was not. It was one of those speculative chances that may result in splendid realities, or prove barren in its consequences. If such was its character the land was not then the subject of contract at all between the parties, that is, of a legal, binding contract, capable of being enforced. It is true that the company had accepted the terms of the treaty as offered it by the Secre tary of the Interior, had given the bond required, had entered into an executory contract to take the residue of the land and pay therefor $2.50 per acre. But it was to get no lands, and make no payments, until it was ascertained whether there would be any lands for it to get, and where those land were was determined. By the treaty the company was offered the opportunity to purchase in preference to others; it had accepted the offer, and bound itself to comply with the conditions upon which it was offered, and this was all. It had no right to an acre of land. No title, no possession. It had a mere possibility, dependent upon conditions not under its control, as well as upon conditions that it had to perform. In this situation it is clear that the company could make no legal conveyance of the land. It is possible that a contract for the sale of the land, executory in its character, made in good faith, for a valuable consideration, would be enforceable in equity, when (if ever) the company became the owners of the land. Such is not this case. There was no consideration. The inducements to make the deed were inherently vicious. The purchaser took his deed with a full knowledge of the condition of the title, and must stand upon the title he took. No court could find an equity in it, and of course would not enforce it. The plaintiff in error is in no better condition than his brother was when he took the deed from the company. He purchased with a full knowledge of the facts, paid nothing, and took nothing. The court correctly decided that the plaintiffs were entitled to the land.
This conclusion on the main question in controversy also settles many of the exceptions made on the taking of the evidence. The paper mentioned in the 18th finding of fact has nothing to do with this case. It was made in May, and it is claimed that thereby the plaintiffs released their interest in the land, when the title to the land did not accrue till December afterward. To claim that this was a release of the land title so obtained is absurd. This settles quite a number of objections as to the admission of testimony.
The petition was for the recovery of land for rents and profits, and for timber cut and carried off from it. It is insisted that there is a misjoinder as to this last cause of action. Supposing this to be true, (which is not conceded,) the plaintiff in error cannot take any advantage of it, as he has waived it. The improper joinder of several causes of action is cause for demurrer: Code, § 89, 5th clause. This defect, if it be one, was apparent on the face of the petition. Plaintiff did not demur, and thus waived the defect: Code, §91.
Another objection is, that the court found the rental value of the land up to the time of the judgment. We do not so read the finding. It is to be presumed that the finding of a court is confined to the issues in the case, and this presumption will hold unless the contrary clearly appears. When the court finds the rental value from the time when the plaintiffs’ title was perfected, at a certain sum, it is a fair presumption, and not inconsistent with the language used, that it was from that time till the suit was brought. To construe it as running up to the time of the judgment is to infer that the court erred, without a certain ascertainment of that fact from the record.
We have examined the whole record, and expressed our views upon a few of the errors alleged, and have found no sufficient cause for setting aside the judgment. It is affirmed.
All the Justices concurring. | [
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Tbe opinion of tbe court was delivered by
Brewer, J.:
Jungren sued Hynes and McCleary for false
imprisonment, and recovered a judgment of $550. Tbe imprisonment was an arrest in a civil action for debt, made by McCleary as constable. In such action Hynes and one Stewart were plaintiffs, and Jungren defendant. Hynes was present and assisted tbe constable in making tbe arrest and conveying Jungren to jail. Several errors are alleged, of which tbe more important are these:
A Mrs. Johnson having testified that plaintiff, since the imprisonment, bad been sick a good deal and unable to work, was ashed this question: “ Do you know tbe reason why he could not work ? ” Tbis question was objected to, and tbe objection overruled. Tbe ground oí tbe objection is not stated, and we see no sufficient ground for any. No exception is preserved in tbe record to tbis ruling. Tbe witness answered that “plaintiff was sick and bad soreness in tbe breast.” Tbe record then states that “tbe answer was received in tbe case, and tbe defendants excepted to tbe ruling of tbe court allowing tbis answer to be taken in evidence.” The question being properly put to tlie witness, lier answer was evidence, and entitled to' remain, unless a motion to strike it ont was made. None such appears in the record. Even if the question was properly before us it seems doubtful whether the answer was objectionable, or, if objectionable, of sufficient importance to disturb the judgment. This is the only error claimed by counsel for plaintiff in error in regard to the reception or rejection of testimony. The other errors complained of are in the instructions of the court and the amount of the verdict.
The judge charged the jury that the original process in the hands of the constable justified him in making the arrest and obeying its commands. This to say the least was as favorable to plaintiffs as the facts would permit, inasmuch as the affidavit, a copy of which goes with the order of arrest, failed to show any reasons for a belief that Jungren fraudrtlently concealed property, or was about to abscond with intent to defraud his creditors. The order of arrest commanded the constable to arrest Jungren and bring him forthwith before the justice. Instead of so doing he, in conjunction with Hynes, carried him to the county jail, and kept him there for a part of a day before taking him to the justice. The excuse which they attempted to make on the trial in the district court was, that Jungren was intoxicated. In reference to this the learned judge charged the jury as follows: “This if true would be no justification to disobey the command of the writ and incarcerate the plaintiff in jail, and keep him there excluded from counsel and friends.” This we think is correct. It was the duty of the constable to take his prisoner forthwith before the justice; and if the latter found him to be in such a condition as not to be able to protect his rights in court, he cotdd make such order for his safe keeping, and for a postponement of the case, as should be right and proper. Counsel for plaintiffs in error object to the last clause in the instruction just quoted, and say there was no testimony tending to show that any friends or counsel of Jungren were prevented from seeing him while in jail. We understand the language of the court as referring to the necessary result of incarceration rather than to any effort to prevent the visits of counsel and friends. That amounts to an exclusion from friends, since communication with them is not at the will of the prisoner, but by permission of his jailor.
It appeared further in evidence that after judgment before the justice, the constable without any process, and upon simply a verbal order of the justice, took J ungren and shut him up in j ail, from which he was discharged upon habeas corpus. In reference to this, after instructing that detention by the constable was illegal, the court further charged the jury, “that if MeCleary acted willfully and maliciously in the arrest and .imprisonment of plaintiff, on a verbal order obtained by plaintiff or his attorney, after judgment rendered by the justice, Hynes would be liable also for such willful and malicious conduct of MeCleary, acting as his agent.” We think this instruction is correct. The question is not presented as to whether the principal is responsible where his agent, employed to do a lawful act, transcends such employment and does a willful and malicious wrong. Eor here the act which the principal procures the agent to do is illegal, and whether the agent acted innocently or maliciously the principal is responsible for the injury.
A very similar instruction was given in regard to Hynes’ responsibility for the act of his attorney, but it is unnecessary to consider whether that instruction embodies a correct statement of the law, for it is entirely ina¡iplicable to the case as shown by the record. True, the record does not affirm that all the testimony, or indeed that all the instructions, are preserved, and. there may have been testimony which called for an instruction in reference to the willful and malicious conduct of the attorney. But we can presume nothing, conjecture nothing. It is enough for us that none is disclosed. Nor can we see, even though the instruction be incorrect as an abstract statement of law, how it could have prejudiced the plaintiffs in error. Again, it is objected that the verdict is excessive. It does seem to us, upon the facts as presented, to be unreasonably large; but there may have been other testimony tending to show a more aggravated ease, and one which would require even a larger verdict than the one rendered. Other errors are complained of, but we deem it unnecessary to notice them. Judgment affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
Defendants in error brought suit in the district court upon two notes executed by plaintiff in error. A demurrer was filed on the ground that the petition did not contain facts sufficient to constitute a cause of action. The demurrer was overruled, and judgment rendered for defendants in error, to reverse which this proceeding in error is brought. The notes were dated June 25th, 1862, and due one Dec. 25th, 1862, and the other October 1st, 1863. They were executed in Illinois. Suit was brought July 22, 1870.
The objection to the petition was that the notes were barred by the statute of limitations. More than five years had elapsed between the maturity of the notes and the commencement of the suit. To obviate this the petition averred that by the laws of Illinois, where the notes were executed, they were not barred until they had been due sixteen years, which period had not yet elapsed. But this manifestly makes no difference in the case. The laws of Illinois have no extra-territorial force. Statutes of limitation affect the remedy, and form no part of the contract. The laws of the forum determine the remedy. We must look to the laws of this state to determine whether the action was barred. Section 22 of our code of civil procedure is the only one which refers to the limitation laws of other states. That provides that the limitations prescribed by the other sections of the statute may in some cases be reduced by the limitation law of the state in which the cause of action arose. It makes no provision for any enlargement of the limitations of our laws. More than that, it refers only to causes of action arising in another state between non-residents of this state. The petition does not show whether defendants in error were non-residents or residents of Kansas at the times the notes were executed or matured. The petition also contained these allegations:
“ That in the year 1867 defendant secretly left the State of Illinois, which State had been the defendant’s home and residence from the execution of said notes up to the time of his departure aforesaid. Plaintiffs further aver that they did not learn the whereabouts of said defendant until a short time before the commencement of this suit, and that the defendant was then and is now a resident of Crawford county, Kansas. Plaintiffs further aver that defendant has only been a resident of Kansas three years last past.”
This is not-enough to take the notes out of the statute. The language of section 21 of our code is — “ If when a cause of action Accrues against a person, he be out of the state, or has absconded, or concealed himself, the period limited for the commencement of the action shall not begin to run . ° until he comes into the state, or while he is so absconded or concealed.” “Be out of the state,” not reside out of the state. The question is not one of domicile, but of personal presence. A party may reside in Elinois, and yet spend more than half his time in Kansas. An allegation that a party “has only been a resident of Kansas three years last past,” throws no light upon the question of his presence in or absence from the State during the years prior thereto. Again, absconding and concealing, as used in this section, refer to the acts of the party in this State. Secretly leaving Illinois is not ab- .. ,„ 7% . „ scondmg or concealing from the reach of process here. The scope of purpose of the entire section (§ 21) is to suspend the running of the statute during such periods of time as the debtor is beyond the reach of process from the courts of this state. These being the only averments in the petition by which the bar of the statute is sought to be removed, and none of them being sufficient, it follows that the demurrer to the petition was well taken, and the court erred in overruling it.
The judgment of the court below will be reversed, and the case remanded with instructions to sustain the demurrer.
All the Justices concurring.
—The case being remanded to the district court, the plaintiffs, Emerson & Taleott, amended their petition. The two notes were again set out in full, and in addition to the usual averments in such actions, the amended petition alleged that the said defendant had been in the State of Kansas for three years only next immediately preceding the commencement of the action etc. The averment is quoted in full in the opinion. To said amended petition defendant demurred. The case was tried on the demurrer at the September Term, 1871, of the district court, when said demurrer was sustained. Plaintiffs, Emerson & Taleott, excepted, and brought the case here for •review, where it was heard and decided at the January Term, 1872, of this court.
Jolm T. Voss, for plaintiff in error.
W. 0. Webb, for defendant in error.
The opinion of the court was delivered by
Kingman, C. J.:
The plaintiffs in error brought suit on two
notes in one action. The notes became due Dec. 25, 1862, and Oct. 1, 1863. The action was commenced July 22,1870. On demurrer it was held that the action was barred by the statute of limitations, and that is the only question in the case. The statement in the petition, which is insisted takes the case from the operation of the statute, is as follows:
“ That the defendant has been in the state of Kansas for three years only next immediately preceding the commencement of this action: that all the time, except only the three years immediately before the commencement of this suit the defendant was absent from this state, and never was within the limits or jurisdiction of this state at any moment of time before said three years; and his being so absent from the state prevented the plaintiffs from suing Mm.”
Does this state of facts take the case out of the statute? "When the defendant came into this state the two-years statute was ^01'06- A few weeks later the General Stat-u^es went into force without any saving clause exCept ag £0 oaseg where the action had been com-
menced, or where by the statutes already in force the right of action had been barred. The right of action in this case had not been barred. This is settled in the case of Bonifant v. Doniphan and Walker, 3 Kas., 26. The legislature in the repeal of previous laws, and the substitution of a new limitation, acted within the sphere of their authority; and the application of the statutes now in force is all that is needed to settle this case. Section 21 of our civil code provides that the limitation does not run while the debtor is absent from the state. This section is precisely the same as section 28 of the code of 1859, which was commented on in the case of Bonifant v. Doniphan and Walker, supra; and it was decided in that case that the sec tion applies to a case precisely similar to the case at bar. Following that decision in an application of the law, we hold that in the case made, by the petition the statute of limitations had not barred the claim; consequently the demurrer was erroneously sustained. The case was before this court before ou a different state of facts, to which attention is directed.
The judgment is reversed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
Nancy Shively recovered a judgment against Samuel Dale and Mary Dale for the sum of $1,020.50 for breach of covenants in a deed of real estate from them to her. They now seek to reverse that judgment. Two questions are presented: 1st, Were the covenants in the deed broken? and 2d, If broken, what was the measure of damages?
I. The deed is attached to and made a part of the petition, and its execution admitted in the answer. The covenants in it are, “ that they (grantors) are lawfully seized of the premises aforesaid, and the same are free and clear of all incumbrances whatsoever, and they will forever warrant and defend the same, with the appurtenances, unto the said party of the second part, her heirs and assigns, against the lawful claims of all persons whomsoever.” The deed purported to convey the entire interest in the land. The grantors were in actual possession, and surrendered the same to the grantee. She was never actually distmhed in that possession. Upon the trial it was admitted that the Dales had only an undivided one-third interest in the premises. The remaining two-thirds were purchased by defendant in error after she obtained the deed from plaintiffs in error, and before bringing this suit. Upon these facts the court below held that the covenants were broken, and that the grantee had a right of action thereon. In this we see no error. Notwithstanding some deviations in Ohio, Massachusetts, and New Hampshire, we think it well settled upon authority that the covenant of seisin is broken, as soon as made, if the title be bad, and that an aetion lies thereon at once without waiting for a disturbance. Kent says, (4 Kent, 471,) “ The covenants of seisin, and of a right to convey, and that the land is free from incumbrances, are personal covenants, not running with the land, or passing to the assignee; for, if not true, there is a breach of them as soon as the deed is executed, and they become choses in action which are not technically assignable.” It is said in Shep. Touch., 170, “If one supposing he hath a good estate doth covenant that he is lawfully seized, or possessed, or that he hath a good estate, or that he is able to make such an alienation, etc., and in truth he hath not, but some other hath an estate in it before, in this case the covenant is broken as soon as it is made.” See also 2 Bacon’s Abr., 574; 5 Vermont, 20; 6 Conn., 385; 10 Ohio, 320, 323, note; Sedgw. on Damages, 175; 19 Mo., 483.
II. "What was the measure of damages? The general rule undoubtedly is, that upon breach of a covenant of seisin the vendee will recover the consideration paid therefor and interest- But this rU^e ^ ™Ü«>ut its exceptions, 0]ae ^s> "kKt where the vendee buys in the paramount title, the measure of damages is the amount paid therefor and interest, providing the same does not exceed the consideration money and interest. ' In 19 Mo., 483, the court say: “ The weight of American authority has determined that the covenant for seisin is broken, if broken at all, so soon as it is made,, and thereby an immediate right of action accrues to him who has received it. But in such case, the grantee is not entitled, as a matter of course, to recover back the consideration money. The damages to be recovered are measured by the actual loss at that time sustained. If the purchaser has bought in the adverse right, the measure of his damages is the amount paid. If he has been actually deprived of the whole subject of his bargain, or of a part of it, they are measured by the whole consideration money in the one case, and a corresponding part of it in the other.” See also Sedgw. on Damages, 176; 22 Maine, 505; Rawle on Covenants for Title, 71; 20 Maine, 260.
Under the term, “ the amount paid for the paramount title,” must, we think, be included not merely the sum which passes into the pockets of the holder of that title, but the expenses necessarily incurred in obtaining it, such as the cos^ deed or deeds, the acknowledgments, the stamps, the amount paid to ascertain the whereabouts of the holder of such title and to secure Ms conveyance. In this case the holders of the paramount title were Indians, living in the Indian Territory. They had to be hunted up, conveyances obtained, and the approval of the Secretary of the Interior received. All this necessitated some expense, and for this expense, together with the amounts paid the Indians, we think the grantors were liable under their covenant, provided the sum-total did not exceed the consideration actually paid for that portion of the interest in the land they had no title to, and which was acquired from these Indians. The rule in regard to such expenses is this: they may be recovered of the grantor, provided they were reasonable, and necessarily and actually paid.
Perhaps there would be little controversy as to the propriety of taking all these items into account in determining the amount of 'damages. But the court who tried this cause admitted the record of proceedings in a suit brought by J. W. Gossett against defendant in error, and testimony as to the costs and counsel fees paid by defendant in error in that case,' and included in his finding of damages all or nearly all such costs and counsel fees. There are cases where costs of counsel fees in defending and prosecuting ah action concerning the land conveyed may be recovered by the grantee upon breach of the covenant of seisin. "Was this one? To determine this we must see what that suit was and how it arose: After obtaining the deed from the Dales, Nancy Shively exchanged this tract of land for another belonging to J. W. Gossett. Conveyances of the different tracts exchanged were executed and recorded. After this exchange had been consummated-it was discovered that there was a misdescription, in the deed from Shively to Gossett and a partial failure of title. Gossett brought suit, alleging these facts, and that after the discovery of them the parties thereto had agreed to re-exchange upon some additional terms, but finally refused, and asking a decree for a reconveyance to him of the lands he had conveyed. During the pendency of said suit the owners of the two-thirds interest in the Dale tract, not owned by Dale, were hunted up and deeds obtained from them of their interests. These facts were set up in a supplemental answer, but nevertheless the court rendered its decree in favor of J. W. Gossett for a reconveyance, he having quit-claimed back the land he had received.
. Was this record properly received in evidence, and the costs and counsel fees paid in it properly included in the damages against the Dales? We think not. The limit to which courts have gone in holding the grantor, after breach of ■( • , •• Ins covenant oi seism, responsible tor costs ana counsel fees paid by the grantee, is this: He may be charged with the costs and counsel fees paid by the grantee in defending the title conveyed against a suit by the true owner, or in prosecuting a suit to obtain the possession which had been covenanted but never actually given. Beyond this we think the authorities have not gone, nor ought they to go. Damages beyond this are too remote to be included. They could not have been contemplated by the parties at the time of making the covenant. The grantor could foresee that if he did not deliver possession to the grantee the latter might be compelled to bring suit to determine his right to possession, and that if he did deliver possession a claimant would inevitably bring suit to settle his rights. For these manifest contingencies he should be held to have provided by his covenant of seisin. But he could not foresee all the possible sales aiid exchanges which his grantee might make, nor be held to have covenanted to save him harmless in suits growing out of such sales and exchanges. In this case the true owners conveyed without bringing suit. Possession was delivered to the grantee, and no action was necessary or brought to obtain it. The suit grew out of an exchange made by the grantee, and was perhaps owing to a misdescription in her deed, as much as to a defect in the title. Nor can the defect in the title be considered as the proximatev.eause of said suit, or the expenses connected therewith. Something intervened which more immediately and directly caused such litigation. We think therefore that this record was improperly received in evidence, and that the court erred in including as part of the damages the costs and expenses of defending such suit.
The testimony showed that about one thousand dollars was paid for costs, expenses,'and attorneys’ fees in defending the Gossett suit and in receiving the conveyances from the Indians, but what amount was paid for each was not shown, nor what either was reasonably worth. Under testimony the whole amount ought to be rejected. The burden of proof is on the grantee to show what damages he has sustained. Proof that a gross amount was paid for two items, one of which is the basis of a legal claim and the other not, without some testimony to show what was actually applied to or what was reasonable for either, is not sufficient to sustain a finding for anything. The party holding the burden of proof must show what was paid for that which gives him a legal claim; or, if no actual apportionment was made at the time of payment, what would be a reasonable proportion of the whole amount for that item.
The judgment of the court below must be reversed and a new trial awarded.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
This was an action brought by the plaintiff upon three notes secured by mortgage. The consideration of these notes was the sale of a patent-right to a petroleum gas stove. The notes at time of suit were not in the hands of the original parties to the contract, but had been transferred by the mortgagee to the plaintiff. The defense was that the purchase of the patent-right had been brought about by the fraudulent representations of the vendor, that the jaretended patent was void for want of novelty and utility, that the stove was so dangerous that it could not be used, and was wholly valueless. The first question raised is whether this defense could be interposed between these parties. The notes were due respectively in six, twelve, and eighteen months. They were transferred to the plaintiff after the maturity of the second and before the maturity of the third. Of course, when a note is transferred after maturity the indorsee takes it subject to all equities between the original parties and the same defenses can be interposed to a suit upon it as if brought in the name of the payee and for his benefit. No objection therefore could be raised or is raised to the interposition of such a defense to the first two notes, but it is strenuously insisted that it cannot be considered in reference to the third, and that whatever may have been the consideration the plaintiff being an innocent and bona fide holder before maturity is entitled to judgment for the amount thereof and interest. The mortgage was given to secure the payment of the three notes. It was executed cotemporaneously with them. They form one contract and are to be construed together and so as to give force to the terms of each: 2 Pars. on Contr., 15; Round v. Donnel, 5 Kas., 56; Muzzy v. Knight, supra, 457. It contained this stipulation, that if any part of the money secured by it should not be paid when it became due, then all should immediately become due and payable. There is no contradiction between this and the notes. It might all have been placed in one instrument, and the contract thus set forth would have been consistent and clear. The payor performing this contract would have six, twelve, and eighteen months respectively to make good his several promises, but failing to keep his first promise lost further time to perform the remainder. It was a contract the time of whose performance depended upon certain conditions. This clause is inserted in mortgages usually for the benefit of the mortgagee; but being a valid stipulation the mortgagor has equal right to insist upon it, and receive whatever advantage he can from its enforcement. When the payor at the expiration of six months failed to pay the note then due, by the terms of the contract all three notes became due. The statute of limitations began to run on all, and a subsequent purchaser purchased after maturity. The defendants therefore have a right to interpose any defense in this suit that they could if the original parties to the contract were the sole parties to the suit: 7 Wis., 446; 7 Paige, 180; 27 Eng. Com. Law, 27; 19 Wend., 103.
The defenses as we have seen were fraud in inducing the contract, and a failure of consideration. The sole consideration was the sale of the patent right. Now in order to support a patent the essential requisites are novelty and utility. And the existence of the essentials is not settled by the , ° issue ox “letters patent” from tiie government. , , ° The-patent may be prvma fao%& evidence, but no party is concluded thereby. He may go behind it and show by any competent testimony the lack of either. If either be wanting the patent is void, and carries nothing to the patentee. Receiving nothing by such instrument, his assignment carries nothing, and a promise in consideration of such assignment is wad/um pactum. Scott, J., in 21 Mo., 338, says: “The law seems to be that a aróte given for a patent that is void, by reason of its being useless, is without consideration.” See also 11 Gray, 175; 14 Pick., 217; 1 Mason, 182, 302; 4 Mason, 6; Davidson on Patents, 279. The jury found that this supposed invention had neither novelty nor utility, that the use of the stove was attended with danger to person and property, and that the stove was worthless. According to this finding therefoi-e the notes given by defendants wei’e without consideration. And while there was testimoary against ther’e was also testimony supporting this finding. A question of fact was fairly presented, and the decision of the juay thereon ought not to be disturbed in this court.
It is claimed by counsel for plaintiff that defendants should within a reasonable time have given notice of their intention to rescind the eonta’aet, and have re-assigned, or offered to re-assign the patent right. Many authorities are cited oía the question of rescission, but they do aiot apply here. Here is no abscission of a coaati-act, but no oontoxoot. _ A coaitract implies a consideration. The juay say there was no considea’ation, therefore no contract. Of what avail would be a re-assignment? Nothing passed; what would be reassigned? In 23 Pick., 286, Morton, J., says: “The oaily exceptioaa is where the property is entirely worthless to both parties. In such case the return would be a useless ceremony,” which the law never gives. In Blood v. Northrup & Chick, 1 Kas., 40, this court used this language: “But it is further objected that, by interposing the plea of failure of consideration to the plaintiff’s demand, the defendant is in effect seeking to rescind the original contract without restoring what he has received under it, namely, the forged draft. The objection is not valid. The defendant is not seeking to rescind his contract. In such a case it is not necessary that he should restore or offer to restore.” See also 22 Pick., 510; 7 Foster, 412; 9 How., 213; 12 Conn., 238.
In this case a special verdict was returned at the instance of the plaintiff. Objection was made to the verdict on the ground ^at ^ ¿id not state all the facts established by the evidence. Special verdicts and findings upon particular questions of fact are by the laws of 1870 matters of right. Laws 1870, p. 173, § 7. It is no longer discretionary with the court^to require them or not. Under these circumstances it becomes important to determine the scope of a special verdict as fixed by our statute. Considerable difference of opinion has existed in reference to it, and a judicial construction in this court will doubtless be of service in many cases. "What is a special verdict? Under our statute the jury can be called upon to respond in three ways — by a general verdict, by a special verdict, and by returning answers to particular questions of fact. True, this latter mode of interrogating the jury can be resorted to only in conjunction with the first, but it is nevertheless a distinct mode. A general verdict embraces both the law and the facts. It states the result of the whole controversy. It determines the ultimate rights of the parties. It combines the decisions of the court with the opinions of the jury. True, the jury receive the law in the instructions of the court, but they apply the law to the facts, and, having combined the two, declare the result. So that under such a verdict they really perform two functions, that of finding the facts, and then that of applying the law to those facts. Any one at all familiar with the experiences of a court-room is aware that the errors of the jury result oftener from their misapplication of the law as stated, to the facts, than from their misapprehension of the facts. A special verdict, on the other hand, finds only the facts, and leaves to the court the duty both of determining the law and of applying it to the facts. It is thus defined in § 285 of the code of civil procedure, Gen. Stat., 68é: “A special verdict is that by which the jury finds facts only. It must present the facts as established by the evidence, and not the evidence to prove them.” It was decided in 1 Miles, 26, that “if instead of finding facts the special verdict sets out the evidence, a new trial will be granted.” "Whether that be the necessary result or no, it is clear that a special verdict should not be a recital of testimony, but a finding of certain facts as established by such testimony. But what facts? Iiow minutely may they, must they, be subdivided? The facts stated in the pleadings; as minutely, and no more so in the special verdict, than in the petition, answer, and reply. The special verdict must conform to the pleadings. The word “ facts5 ’ is used in this section in the same sense, and refers to the same things as when used in § 87 of the code, which declares that a “petition must contain a statement of the facts constituting the cause of action, in ordinary and concise language without rej>etition.” There are in every cause of action certain essential substantive facts, certain elements, so to speak. Every pleader knows this when he prepares a petition. The omission of any one of these elements renders the petition defective. The failure to prove one defeats the cause of action. Now these essential elemental facts are the ones the special verdict must find, no more, no less. A history of the case in the nature of a recital of the testimony, or a detail of the various steps in the transaction is not the function of a special verdict. It responds to the various facts of the petition like a special denial, touching each separately. The statute clearly points to this construction. It says, (Laws 1870, p. 173, ch. 87, § 7, amending § 286 of the code,) “ the court shall direct the jury to find a special verdict in writing upon all or any of the issues in the case.” The issues are to be passed upon in the special verdict. In Bacon’s Abridgement, vol. 10, p. 313, it is said, citing as authority United States v. Bright, Bright’s Trial, 199, “If in a special verdict the jury find the issue, all they find beyond is surplusage.” The special verdict is simply the response of the jury separately to the several issues presented by the pleadings. If this be true, how can a special verdict be returned upon less than all the issues, as seems to be contemplated by the statute? A special verdict is returned at the request of a party. If such party desired a special verdict upon one issue, or any number less than all, he thereby concedes all other issues to his adversary. He rests his case upon the issues he desires submitted. It was a common practice in the English courts for a jury to return a verdict like this: If so and so be the law, plaintiff is entitled to judgment; otherwise, the defendant. It was called a special verdict. It presented a single question. So the court often submitted a single issue of fact. This also was called a special verdict. Again, it may be urged that there are frequently allegations in pleadings which combine conclusions of law with statements of fact, and that upon denial issues are presented which equally mingle law and fact. Yet, if they are sufficient under that section which requires the petition to contain a statement of the facts, why not equally sufficient under that which requires a special verdict to find facts? Again, it may be urged that to prevent wrong it is often necessary to go back of the issuable facts and ascertain the truth in regard to some item of testimony. Eor instance, a matter in dispute might be whether a party accepted certain work under a contract. The general allegation would be that he accepted. The special verdict following it might be that he accepted. Yet, if what he actually did was found, the law would say that there was no acceptance. And as truth is the object of all investigation, that which he did ought in some way to be ascertained and presented. In other words, we must go back of the issues to the testimony or those subdivided facts and circumstances which combine to make the general facts alleged. This it is claimed is the scope and purpose of a special verdict, and construing the statute as we have simply emasculates it. It is shorn of its strength, and a special becomes of but little more advantage than a general verdict. It applies the law to the facts with but little greater exactness. We concede the neces sity for such procedure, and think provision is made for it by another clause of the statute. After the provision for a special verdict, the statute (ch. 87, § 7, laws of 1870, supra,) reads— “And upon like request to instruct the jury if they shall render a general verdict to find upon particular questions of fact, to be stated in writing, and shall direct a written finding thereon.” Under this clause full scope is given for ascertaining any fact in the case which may affect its determination, whether one of the main essential facts, or any minute subdivision thereof. And in order to give full force to these findings the next section of the code (§ 287,) provides that “ when the special finding of facts is inconsistent with the general verdict, the former controls the latter, and the court may give judgment accordingly.”
Examining the verdict returned in this case in the light of this construction of the statute, and it seems to us it contains a finding upon all the issues. It is more full, and subdivides more than is necessary, but it is sufficient. A great many other questions are presented in the petition in error, and the briefs of counsel, but determining these as we have done avoids the necessity of any inquiry into those. There being no consideration for the notes the defendants were entitled to verdict and judgment, and any errors, if errors there were, in the other matters complained of may be considered as not affecting the substantial rights of the plaintiff. The judgment will be affirmed.
All the Justices concurring. | [
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Per Curiam:
This is a review and modification proceeding of a workers’ compensation award under K.S.A. 1977 Supp. 44-528. The appellants (employer and carrier) appeal from the judgment of the district court wherein their application for modification and reduction in payment of total disability compensation was denied.
The pertinent part of K.S.A. 1977 Supp. 44-528 provides:
“(a) Any award or modification thereof agreed upon by the parties, whether said award provides for compensation into the future or whether it does not, may be reviewed by the director for good cause shown upon the application of the workman, employer, dependent, insurance carrier or any other interested party. In connection with such review the director may appoint one (1) or two (2) physicians to examine the workman and report to the director. The director shall hear all competent evidence offered and if he shall find that the award has been obtained by fraud or undue influence, or that the award was made without authority, or as a result of serious misconduct, or that the award is excessive or inadequate or that the incapacity or disability of the workman has increased or diminished, the director may modify such award, or reinstate a prior award, upon such terms as may be just by increasing or diminishing the compensation subject to the limitations provided in the workmen’s compensation act.”
The trial court made the following findings of fact and conclusions of law:
“The only evidence before this Court is the deposition of H. O. Anderson, M. D., taken on August 21, 1974. Claimant offers no evidence.
“After having studied Dr. H. O. Anderson’s deposition and listening to argument of counsel, this Court makes the following findings:
“Claimant’s accident which occurred in the course of his employment, in Wichita, Sedgwick County, Kansas, on November 10, 1971, has been held by the director and the District Court of Sedgwick County, Kansas, to render claimant totally disabled.
“Compensation is being paid at the rate of $56.00 per week. Payment is being made under an award rendered by the Examiner on November 5, 1973, as altered by the Director and sustained by the District Court on April 15, 1974.
“Dr. H. O. Anderson examined and evaluated claimant’s condition on July 30, 1974. Not having seen claimant until July 30, 1974, Dr. Anderson cannot state whether claimant’s condition is better, the same or worse than at the time the original award was made or modified. The testimony of Dr. Anderson does not indicate a change in the symptoms or condition of claimant since the granting of the original award. His testimony constitutes another doctor’s opinion of the extent of claimant’s disability. It, therefore, cannot serve to prove a diminished disability on claimant’s part.
“Dr. Anderson finds that claimant will continue to have further difficulty with his back.
“Dr. Anderson does not find that claimant is capable of performing work of the same type and character he was capable of before his injury.
“It is the conclusion of this Court that claimant, as of this date, is not capable of performing and retaining work of the same type and character he was capable of performing before his injury.
“It is the judgment and order of this Court that the application for modification and reduction in the payment of total disability compensation as awarded by the Examiner on February 5, 1975, and sustained by the Director on March 7, 1975, be denied and that no modification or reduction of the Examiner’s award of February 5, 1975, be granted.”
The appellants claim the trial court erred, as a matter of law, in considering or giving any weight to the disability determined on the then existing facts upon which claimant’s original award was based, or upon the fact that Dr. Anderson had not examined the claimant prior to July 30, 1974.
The purpose of the review and modification statute is set forth in Ratzlaff v. Friedeman Service Store, 200 Kan. 430, 436 P.2d 389 (overruled on other grounds, Ferrell v. Day & Zimmerman, Inc., 223 Kan. 421, 573 P.2d 1065), quoting Hayes v. Garvey Drilling Co., 188 Kan. 179, 181, 360 P.2d 889, as follows:
“The reason for the statute is of course evident, for, in the very nature of things, the question of the extent of disability in the first instance is oftentimes conjectural. Human nature being what it is, and medical science not being perfect, it is conceivable that a claimant may not be as badly disabled a few weeks or months after the original hearing as he seemed to be at the time the award was made. On the other hand, his condition might have grown much worse. The statute was enacted to meet such [a] situation and its provisions safeguard the welfare of the workman as well as the employer.” (200 Kan. at 434.)
The subsequent amendment to the statute has no effect on the above stated purpose. Any modification is based on the existence of new facts, a changed condition of the workman’s capacity, which renders the former award either excessive or inadequate (Ratzlaff, supra). The burden of proving the changed condition of the claimant is upon the party asserting it (Davis v. Haren & Laughlin Construction Co., 184 Kan. 820, 339 P.2d 41). The only evidence of the claimed changed condition was the deposition of Dr. Anderson, who, except for finding no muscle spasms, found essentially the same physical condition that was the basis of the original award. Dr. Anderson assessed the claimant as being 15-20 percent disabled and being capable of light work. The assessment was not evidence of diminished disability, but rather a different evaluation of the original disability, as the trial court found. Dr. Anderson further stated the claimant was incapable of performing the same work he had been performing prior to his injury.
The appellants’ claim of error on the part of the trial court in considering the disability found in the award on which modification was sought is without merit. The purpose of the proceeding was to determine if the claimant’s disability had changed. No such determination can be made without comparing claimant’s condition at the time of the award with his condition at the time modification was sought.
Some clarification is necessary in the following findings:
“Not having seen claimant until July 30, 1974, Dr. Anderson cannot state whether claimant’s condition is better, the same or worse than at the time the original award was made or modified.”
If the trial court is concluding that Dr. Anderson was precluded, as a matter of law, from comparing claimant’s original condition with what he found on July 30, 1974, then this is an erroneous conclusion. Dr. Anderson viewed the earlier records including X-rays and compared the same to what he personally found upon his examination including the new X-rays he ordered taken. He had the right to compare and did, in fact, do so. He basically found no change. The language in this one portion of the findings and conclusions is subject to an improper interpretation which we do not believe the trial court intended, taken in the light of all the findings and conclusions and the evidence before the court.
With this clarification we hold the appellants’ claim of error on the part of the trial court in considering the disability found in the award on which modification was sought is without merit. The purpose of the proceeding was to determine if the claimant’s disability had changed. No such determination can be made without comparing claimant’s condition at the time of the award with his condition at the time modification was sought.
The findings and conclusions of the trial court as clarified are supported by substantial competent evidence and the trial court properly applied the law to the facts so found.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Fromme, J.:
Willie L. Cates was charged with premeditated and felony murder (K.S.A. 21-3401), and unlawful possession of a firearm after conviction of a felony (K.S.A. 21-4204[1][b]). A jury found him guilty of murder in the second degree (K.S.A. 21-3402) and acquitted him of the other charges. He appeals and raises four points of alleged error. Two of the points concern the alleged existence of evidence at the trial which would require the trial judge to give instructions on either involuntary manslaughter or voluntary manslaughter or both.
“In a criminal prosecution where the offense charged may include some lesser offense it is the duty of the trial court, under the provisions of K.S.A. 1972 Supp. 21-3107(3), to instruct the jury, not only as to the offense charged but as to all lesser offenses of which the accused might be found guilty under the information and upon the evidence adduced.” (State v. Warbritton, 211 Kan. 506, Syl. ¶ 1, 506 P.2d 1152 [1973]. See also State v. Weyer, 210 Kan. 721, Syl. ¶ 1, 504 P.2d 178 [1972].)
The evidence at the trial indicates a feud developed between the members and friends of two families in Wichita, which feud lasted four days and culminated in the death of Mike Fair on April 5, 1976, from a gunshot wound to the head. The two groups which carried on this vendetta will be referred to as the Cates group and the Fair group. The feud arose when a member of the Fair group attempted to collect $10.00 owed by a member of the Cates group. A profane argument erupted and ended in a standoff. The following morning at 1:00 a.m. some members of the Fair group proceeded to the home of one of the members of the Cates group, threw a rock on the porch and challenged those inside to a fight. Willie Cates came out on the porch but declined the invitation and retreated inside the house as shots were fired.
After Willie Cates was unsuccessful in two different attempts at borrowing a handgun, he proceeded to make what is referred to as a “zip gun”. The homemade “zip gun” was fashioned by the defendant and a friend from a short piece of pipe, a piece of wood, two springs and a nail. It was capable of firing a .22 long rifle cartridge. Thereafter the defendant placed the homemade gun in a paper sack and carried it with him wherever he went.
The day after the Fairs challenged the defendant to a fight, the defendant located a blue Rambler automobile owned by a member of the Fair group. In retaliation for the challenge by the Fairs, the defendant proceeded to break the car windows. That evening Mike Fair, the murder victim, and his brother assaulted a member of the Cates group in retaliation for the damage to the blue Rambler automobile and, in a later incident, threatened other members of the Cates group.
The next morning at 1:30 a.m. a fire bomb was thrown at the home of one of the Cates group by the brother of Mike Fair, and windows were broken in a Volkswagen parked near the house that was fire-bombed.
Later that morning the defendant was advised of these recent events and he decided to go to the Service Auto Glass Company where Eugene Fair, the brother of the victim, worked. Four members of the Cates group, two men and two women, drove to the Service Auto Glass Company. They noticed a car owned by Barbara Fair parked in the parking lot east of the Service Auto Glass Company. They parked their car behind the Fair car.
We will recite defendant’s version of the events that transpired. Defendant got out of the car and picked up the homemade “zip gun” which was in the paper sack lying in his lap. He approached the Fair car while carrying the paper sack in his left hand. When he reached the car he saw Mrs. Fair in the back seat with a man. He opened the backdoor of the car with his right hand. Mrs. Fair reached for her purse, and the defendant told her to get away from her purse. She complied. He believed she was reaching for a gun.
The defendant then directed his attention to the victim, Mike Fair. Mike Fair was seated in the front seat. He was in the act of retrieving a small-caliber pistol from under the seat. Mike Fair pointed a pistol at the defendant. In self-defense the defendant switched the paper sack containing the “zip gun” to his right hand, lunged inside the back seat and swung at Fair with his right hand. At the same time he ducked behind the back of the seat. The “zip gun” which was in the defendant’s right hand struck the victim in the face and the gun discharged. Defendant testified he was holding the paper sack with the gun inside and that his hand was not inside the sack where the firing mechanism was located. He testified the discharge of the “zip gun” and the killing of Mike Fair were unintentional.
Considering this testimony we must first determine if the trial judge was required to give an instruction on involuntary manslaughter.
“Involuntary manslaughter is the unlawful killing of a human being, without malice, which is done unintentionally in the commission of an unlawful act not amounting to felony, or in the commission of a lawful act in an unlawful or wanton manner. As used in this section, an ‘unlawful act’ is any act which is prohibited by a statute of the United States or the state of Kansas or an ordinance of any city within the state which statute or ordinance is enacted for the protection of human life or safety.” (K.S.A. 21-3404.)
Taking the defendant’s testimony at face value the act of striking and killing the victim was done unintentionally and without malice. To constitute involuntary manslaughter under the statute the killing must have occurred in the commission of an unlawful act not amounting to a felony, or in the commission of a lawful act in an unlawful or wanton manner.
At this point it is well to consider the dilemma facing the trial judge when he gave the instructions in the present case. The defendant was charged not only with murder but also with unlawful possesion of a firearm with a barrel less than twelve (12) inches long. There was evidence that defendant had previously been found guilty of a felony in Sedgwick County, and there was considerable evidence bearing on the size of the gun barrel. There was testimony from which a jury might well have found the defendant guilty of possessing the prohibited gun with a barrel less than twelve inches in length, a felony. This gun was the instrument used which resulted in Mike Fair’s death. As the case turned out defendant was acquitted of the firearms charge. The jury, no doubt, found the barrel of the gun was in excess of twelve inches. Therefore, the possession of the gun by defendant did not amount to a felony in the minds of the jurors.
Adding to the judge’s dilemma we find the following discussion on the record concerning the giving of the instruction on involuntary manslaughter.
“Mr. RegieR: Other than that I have no objection to the instructions.
“The Court: Defendant Cates.
“Mr. MOORE: We have no objection, Your Honor.
“The Court: The state of Kansas.
“Mr. Rumsey: There are two things that concern me about the instructions, frankly. I think that there ought to be a lesser included offense for Involuntary Manslaughter. And my concern about having that, I think, is the Supreme Court of our State’s ruling in the State of Kansas versus Gregory at 218 Kansas 180. I don’t agree with the court’s ruling, the Supreme Court’s ruling in that case but it seems to be something that, according to that rule, we ought to do here.
“I know that the Court currently feels that the evidence does not support an Involuntary Manslaughter theory. And I agree with the Court’s ruling here, but this Supreme Court seems to be off on some other kind of theory in that case. I think we have to have that.
“I also understand that neither defendant — neither attorney for the defendant wants to have Involuntary Manslaughter and they feel that there is no evidence to support an instruction on that verdict.
“I also think that the law of our state requires when someone is charged with Unlawful Possession of a Firearm that there be an instruction about possession. I know that the argument can be made that because the evidence is undisputed that he possessed it that there’s no need to instruct about possession.
“But, again, I know that our court has ruled, our Supreme Court has ruled that the possession instruction is a necessary instruction for that kind of crime.
“The COURT: Does either defense counsel want to be heard before the Court rules?
“Mr. MOORE: I think Mr. Rumsey, Your Honor, has fairly well outlined our thinking on it, and that is, there is simply no evidence of any kind which would support an instruction to Involuntary Manslaughter.”
There can be little doubt under K.S.A. 21-3107(3) as construed in State v. Warbritton, supra, and State v. Weyer, supra, the court must evaluate the evidence and determine if an instruction on involuntary manslaughter should be given regardless of the wishes of the defendant and the prosecution. In State v. Seelke, 221 Kan. 672, 561 P.2d 869 (1977), it is pointed out:
“A trial court's duty under K.S.A. 21-3107 to instruct on a lesser degree of a crime arises only where there is evidence upon which the accused might reasonably be convicted of the lesser offense.” (Syl. ¶ 2.)
So let us consider the requirements of the involuntary manslaughter statute (K.S.A. 21-3404) in light of the evidence at the trial. Was there evidence that the killing resulted from the commission of an unlawful act not amounting to a felony? Present counsel for defendant cites an ordinance of the city of Wichita which he argues made any discharge of a firearm in the city a misdemeanor. However, at no time in the trial of the case was such a theory presented to the trial court, and the ordinance referred to is not set out in the record or the briefs. Under the rules of evidence, specifically K.S.A. 60-409, judicial notice of a duly enacted ordinance shall be taken “if a party requests it and (1) furnishes the judge sufficient information to enable him or her properly to comply with the request and (2) has given each adverse party such notice as the judge may require to enable the adverse party to prepare to meet the request.” This statute was not complied with. Therefore, we are not disposed to find the defendant could have been guilty of an unlawful act by violating this city ordinance. The ordinance was not called to the attention of the trial court and no request was made to take judicial notice of it. In addition, under the firearms charge, the evidence would support a determination that the possession of the gun by the defendant constituted a felony.
So our next inquiry is — was the alleged unintentional killing “in the commission of a lawful act in an unlawful or wanton manner”? Taking defendant’s testimony at face value the defendant acted in self-defense when confronted with a gun held in the hand of a person who had previously threatened to kill if and when he found defendant. In State v. Gregory, 218 Kan. 180, 542 P.2d 1051 (1975), we hold:
“The use of excessive force may be found to be an ‘unlawful manner’ of committing the ‘lawful act’ of self-defense, and thereby supply an element of involuntary manslaughter.” (Syl. ¶ 5.)
The court gave an instruction on self-defense in this case. Self-defense is recognized by statute.
“A person is justified in the use of force against an aggressor when and to the extent it appears to him and he reasonably believes that such conduct is necessary to defend himself or another against such aggressor’s imminent use of unlawful force.” (K.S.A. 21-3211.)
A defendant may use the degree of force which reasonably appears to be necessary to repel an attack and is justified in the use of deadly force to repel deadly force. (State v. Blocker, 211 Kan. 185, 505 P.2d 1099 [1973]; State v. Stokes, 215 Kan. 5, 523 P.2d 364 [1974].) Under the facts as testified to by defendant there is nothing in the actions of defendant which would bring the case within the excessive force rationale, of State v. Gregory, supra. If the jury believed his story the homicide was justifiable because he acted in self-defense to repel a deadly force. The trial court did not err in failing to instruct the jury on involuntary manslaughter.
We turn to appellant’s next point concerning the failure of the court to instruct on voluntary manslaughter. No such instruction was requested. K.S.A. 21-3403 provides:
“Voluntary manslaughter is the unlawful killing of a human being, without malice, which is done intentionally upon a sudden quarrel or in the heat of passion.”
In the case before the court there is simply no evidence upon which the jury could have based a conviction for voluntary manslaughter. The evidence from the defendant was that the killing was done unintentionally in an effort to defend himself. The defendant further testified that he approached the vehicle with the intention of talking to Barbara Fair and not in an angry or upset manner. There was no testimony to indicate that any argument or quarrel took place in the parking lot. No one had argued with the defendant. All of the persons in the victim’s automobile fully complied with the defendant’s commands. In State v. Stafford, 213 Kan. 152, 515 P.2d 769 (1973), opinion modified and rehearing denied at 213 Kan. 585, 518 P.2d 136 (1974), the court held even though there was some evidence of prior quarreling and of a blow being struck by the decedent, there was insufficient provocation to reduce a second degree murder charge to voluntary manslaughter.
In State v. Coop, 223 Kan. 302, 573 P.2d 1017 (1978), the terms used in K.S.A. 21-3403 are explained as follows:
“ ‘Heat of passion’ includes an emotional state of mind characterized by anger, rage, hatred, furious resentment, or terror. It must be of such a degree as would cause an ordinary man to act on impulse without reflection.” (Syl. ¶ 1.)
“ ‘Sudden quarrel’ is one form of provocation for ‘heat of passion’ and is not separate and apart from ‘heat of passion.’ ” (Syl. ¶ 3.)
In the present case there was no evidence of a quarrel between the defendant and the victim in the parking lot. The victim said nothing. The defendant is alleged to have said three words to the victim, “Don’t do it.” The vendetta carried on between the Cates group and the Fair group during the three preceding days is not what is contemplated in the statute as sufficient provocation to give rise to heat of passion. It was too remote and not of such a degree as would cause an ordinary man to act on impulse without reflection. It was not error for the trial court to fail to give an instruction on voluntary manslaughter.
The appellant contends it was error under K.S.A. 22-2616 for the trial court to overrule his motion for change of venue because of pretrial publicity. Appellant received publicity as the father of Siamese twins born in November, 1975. The twins were successfully separated in January, 1976. Thereafter a court battle arose over the custody of the twins and appellant apparently abducted one of the twins and was quoted in the news media as saying he would fight for custody. The custody action was widely publicized and the news media carried some stories in which the mother was quoted as accusing appellant of beating her. All of this publicity had nothing to do with the present trial and some of it was favorable to the appellant.
There were several additional news articles in April after the killing of Mike Fair. We have read these exhibits and they are objective in nature. The trial occurred in August, four months later. Nine affidavits were filed with a motion for change of venue stating the affiants believed it was impossible for appellant to receive a fair trial in Wichita because of the publicity. Half of these affidavits were signed by members of the Cates group who figured prominently in the feud.
In ruling on the motion for change of venue the judge noted that appellant was entitled to exercise twelve peremptory challenges in selecting a jury but he exercised only six and waived the balance. The jurors who were selected to try the case acquitted the appellant of murder in the first degree and of felony possession of a firearm. The trial court was reasonably certain that appellant did receive a fair trial. There is no showing in the record of prejudice, and under the authorities set out at pp. 279 and 280 of State v. Sanders, 223 Kan. 273, 574 P.2d 559 (1977), we cannot say the trial court abused its discretion in refusing a change of venue.
Appellant’s fourth and final point is that the trial court erred in not sustaining his motion for judgment of acquittal under K.S.A. 22-3419. It would serve no useful purpose to review the inconsistencies in the testimony which appellant asserts. These were for the jury to resolve. The rules governing the determination of this question were fully set out in State v. Wilson Wentworth, 221 Kan. 359, 362, 559 P.2d 374 (1977). There is sufficient evidence to support the verdict.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Miller, J.:
Daniel L. Perry appeals, following his conviction by a jury of aggravated robbery, K.S.A. 21-3427.
He raises but one point: that the trial court violated his constitutional rights when it instructed the jury, over his objection, that:
“You shall not consider the fact that the defendant did not testify in arriving at your verdict.”
This instruction is taken from PIK Crim. 52.13. Defendant acknowledges in his brief and in oral argument that the instruction is a correct statement of the law, and he does not challenge the substance of the instruction.
Instead he argues, and not without support, that the Fifth Amendment right not to testify, enforceable against the states through the Fourteenth Amendment, carries with it the correlative right to prevent the trial judge from singling out and emphasizing the accused’s failure to testify, in the jury instructions; and that such an instruction, over defendant’s objection, constitutes a “comment” on his failure to testify, and is prejudicial.
We have previously considered this or similar instructions, and we have held that the giving of such an instruction correctly states the law and is not erroneous. State v. Kowalec, 205 Kan. 57, 60, 468 P.2d 221; State v. McCoy, 160 Kan. 150, 161, 160 P.2d 238; State v. Olsen, 88 Kan. 136, 142, 127 Pac. 625. Long ago, in State v. Goff, 62 Kan. 104, 61 Pac. 683, we held that it was reversible error for a trial court to refuse to give such an instruction if requested by the defendant to do so. And recently, in State v. Quinn, 219 Kan. 831, 549 P.2d 1000, where a similar instruction was given over the objection of the defendant, we held that the instruction, when considered with others given, was adequate. In Quinn, however, the precise issue raised here was not asserted.
The Fifth Amendment to the Constitution of the United States provides that “No person . . . shall be compelled in any Criminal Case to be a witness against himself . . .” Similarly, section 10 of the Kansas Bill of Rights provides that “. . . No person shall be a witness against himself . . .” Speaking of these constitutional provisions, Justice Fatzer, speaking for a unanimous court in State v. Faidley, 202 Kan. 517, 520, 450 P.2d 20, said:
. . The provisions of the Fifth Amendment grant no greater protection against self-incrimination than does Section 10 of the Bill of Rights. . . . The manifest purpose of the constitutional provisions, both state and federal, is to prohibit the compelling of self-incriminating testimonial or communicative acts from a party or a witness, and ‘the liberal construction which must be placed upon constitutional provisions for the protection of personal rights would seem to require that the constitutional guaranties, however differently worded, should have as far as possible the same interpretation . . .’ (Counselman v. Hitchcock, 142 U.S. 547, 584, 585, 35 L.Ed. 1110, 1121, 12 S.Ct. 195.) . . .”
The defendant premises his claim upon Griffin v. California, 380 U.S. 609, 14 L.Ed.2d 106, 85 S.Ct. 1229, and a number of subsequent federal and state appellate court decisions which have extended the Fifth Amendment privilege. In Griffin, in conformity with a California statute, the trial court instructed the jury:
“ ‘As to any evidence or facts against him which the defendant can reasonably be expected to deny or explain because of facts within his knowledge, if he does not testify or if, though he does testify, he fails to deny or explain such evidence, the jury may take that failure into consideration as tending to indicate the truth of such evidence and as indicating that among the inferences that maybe reasonably drawn therefrom those unfavorable to the defendant are the more probable.’ ” (p. 610.)
The accused did not testify. During closing argument, the prosecutor dwelt upon the accused’s failure to testify, emphasizing that the defendant would know various things, and the answers to questions which arose in the case, but that he had not seen fit to take the stand and deny or explain them. The United States Supreme Court held:
“. . . that the Fifth Amendment, in its direct application to the Federal Government, and in its bearing on the States by reason of the Fourteenth Amendment, forbids either comment by the prosecution on the accused’s silence or instructions by the court that such silence is evidence of guilt.” (Emphasis supplied.) (p. 615.)
The court specifically reserved decision on whether an accused can require that the jury be instructed that his silence must be disregarded (Footnote 6, p. 615). That right has been afforded an accused in this state since the turn of the century. State v. Goff, supra.
A few courts have recently held that it is error of constitutional magnitude and a violation of a defendant’s rights for a trial court, over defendant’s objection, to give the instruction here involved, and thus to “comment” on an accused’s silence. These include the Supreme Courts of Arkansas, Iowa, and Indiana, and the Courts of Appeal of Arizona and California.
A number of courts have held it improper (on non-constitutional grounds), to give such an instruction over defendant’s objection, and hold that it should be given only upon defendant’s request. An equal or larger number have found no constitutional or other error where the instruction is given over defendant’s objection, or without defendant’s request. Most courts have approved the giving of the instruction sua sponte. Multiple defendant cases, where one defendant requests the instruction and others object to it, have perplexed trial and appellate courts alike in those jurisdictions which base the propriety of the giving of the instruction upon the request or the objection of the accused.
The great majority of the courts do not recognize any constitutional right in this area, and most cases turn on statutory or other grounds. We found no decision holding that the instruction misstates the law. We have reviewed many of these opinions, but do not believe citations or lengthy discussions of all of them need be included here. The conflict is explored and many of the cases are cited in an annotation found at 18 A.L.R.3d 1335.
Though the instruction was not requested by either defendant, it was given sua sponte by the trial judge, and was cited as error on appeal in United States v. Garguilo, 310 F.2d 249 (2d Cir. 1962). Judge Friendly, speaking for the majority, says:
“. . . Garguilo argues that it is error for the judge to give any instruction unless requested by the defendant to do so, since there is a risk that, the failure to testify being thus spotlighted, the light will penetrate the curtain sought to be drawn over it.
“There may be enough in this so that, as Judge Learned Hand said for this Court many years ago, ‘It is no doubt better if a defendant requests no charge upon the subject, for the trial judge to say nothing about it. . . .’ But we agree also with the rest of Judge Hand’s statement: ‘but to say that when he does, it is error, carries the doctrine of self-incrimination to an absurdity.’ . . . It is far from clear that such an instruction is prejudicial to a defendant; the chances are rather that it is helpful. The jurors have observed the defendant’s failure to take the stand; in the absence of instruction, nothing could be more natural than for them to draw an adverse inference from the lack of testimony by the very person who should know the facts best. And ‘despite the vast accumulation of psychological data, we have not yet attained that certitude about the human mind which would justify “ ° * a dogmatic assumption that jurors, if properly admonished, neither could nor would heed the instructions of the trial court that the failure of an accused to be a witness in his own cause “shall not create any presumption against him.” ’ . . .” (p. 252.)
A constitutional challenge to such an instruction was raised in Aiuppa v. United States, 393 F.2d 597 (10th Cir. 1968). Chief Judge Murrah discussed the issue as follows:
“It is argued that the language of the instruction amounts to a prejudicial comment on the failure of a defendant to take the stand, prohibited in Griffin v. State of California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106. But, we cannot agree. We know, of course, that such an instruction must be given if requested. . . . While it may be the better practice not to charge on this subject unless specifically requested by a non-testifying defendant, it is not reversible error to do so. . . . When couched in such careful terms as used here, we do not think the charge can be said to be more than ‘a faithful compliance with the “implied direction” given district judges by Congress to fulfill “their traditional duty in guiding the jury by indicating the considerations relevant to the latter’s verdict on the facts.” ’. . .” (pp. 602-603.)
Another informative and persuasive discussion of the issue appears in State v. Rollins, 3 Ohio Op. 3d 392, 49 Ohio App. 2d 330, 361 N.E.2d 555 (1976), where the court said:
“The inherent power of the trial court and its statutory duty to instruct the jury fully and correctly on all the applicable law is not subject to the whims or strategic desires of any party. While instructions must always be precise and correct, we know of no decision that grants to any party the right to prevent full and adequate instructions on all the applicable law. Such a right, if granted, would undermine the jury system and the function of the trial judge. As we shall discuss later, such a right to a party, if granted, would constitute an abdication of judicial authority,
“The problem that arises when one accused at trial fails to testify is always before the jury. ... It is ... a matter of common, public knowledge in this country that the accused has a constitutional right not to do so. We do not share the belief that jurors are ignorant or stupid. Any defendant who chooses not to testify accepts a calculated, strategic risk that his failure will leave an impression upon the jury even though his open failure is otherwise sealed in a vacuum of no comment by counsel and no instructions by the court. Failure to testify is a demonstrated act before the jury. In no way can it be compared to a particular fact that would not come to the jury’s attention unless someone mentioned it. If we would agree that the jury must operate in a vacuum of instructions of law, jurors would be legally free to resolve every question of credibility against a defendant who did not speak up. And in the absence of any instruction or reminder of constitutional rights, jurors could point to the court as responsible for any irresponsibility they may adopt in this regard.
“The tradition of justice in this country through a fair and impartial jury is based upon a complete submission by the trial judge of all applicable law and an honest consideration by the jury of the facts. Law and facts submitted to a jury present difficult problems and require fine judgment. In this delicate balance it is incomprehensible that any party be permitted to control the law or to require the court to withhold the law from the jury so as to force the jury to resolve a case in a vacuum.
“. . . [T]o the point is State v. Nelson, 36 Ohio State 2d 79, 65 O.O.2d 222 (1973), in which the Supreme Court of Ohio held, in the syllabus:
“ ‘2. There is no provision in the Constitution of Ohio or in the Ohio Revised Code which entitles a defendant in a criminal case to have the jury instructed that his failure to testify must not be considered for any purpose.
“ ‘3. In a criminal case, it is discretionary with the trial court whether to charge on the defendant’s right to elect not to testify.’
“The opinion states that the court is ‘not so constrained to abdicate to the accused or his counsel the decision on the question of the content of the trial court’s charge on the issue presented here. “ ° ° Those decisions should be left to the sound discretion of the trial court.’ Page 84 (Emphasis ours.)
“Abdication of judicial authority is an accurate description for any situation where a party or his counsel is permitted to prevent the jury from receiving correct law that is applicable to a given case. There is no merit to the first assignment.” (pp. 393-394.)
We have not overlooked the eloquent summary of appellant’s position as stated by Judge Lowe in his dissenting opinion in Pearson v. State, 28 Md. App. 196, 203-205, 343 A.2d 916, 920-922 (1975), cited in appellant’s brief. Basically, the argument is that because a defendant has the right to choose whether to remain silent or not, he should have the correlative and tactical right to decide whether the court should or should not give the instruction. But even Judge Lowe agrees that the instruction is a correct statement of the law, and that it is not error to give it at the defendant’s request or, absent either a request or an objection, sua sponte.
The instruction does not violate either the plain language of the Fifth Amendment or the rule laid down in Griffin. The proscribed conduct — inferring guilt because of the accused’s silence — is the precise wrong which the instruction seeks to prevent. We hold that the giving of the instruction, even over objection, is not constitutional error.
We next turn to our statute, K.S.A. 60-439, which reads as follows:
“If a privilege is exercised not to testify . . . the judge and counsel may not comment thereon, no presumption shall arise with respect to the exercise of the privilege, and the trier of fact may not draw any adverse inference therefrom. In those jury cases wherein the right to exercise a privilege, as herein provided, may be misunderstood and unfavorable inferences drawn by the trier of the fact, or may be impaired in the particular case, the court, at the request of the party exercising the privilege, may instruct the jury in support of such privilege.”
Clearly, the statute seeks to protect the defendant’s privilege not to testify, and to prevent any adverse presumptions or inferences from arising because of the exercise of the privilege. The instruction seeks this same goal.
Is the instruction a “comment” on defendant’s failure to testify, and thus violative of the statute? The advisory committee note to this statute reads:
“A recognized privilege not to introduce evidence should not be impaired by giving the judge or counsel any right to comment on the exercise of the privilege to the prejudice of the one exercising the privilege.” (Emphasis added.) 4 Vernon’s Kansas C.C.P. 346.
Judge Gard, in his Kansas Code of Civil Procedure, has this comment:
“The provision giving the judge the right in jury cases to explain to the jury the nature of the privilege and the right to claim it so as to avoid improper speculation on the part of the jury is necessary. The rule permits it to be done only upon request of a party who exercises the privilege as he is the only one who could be hurt by it. He should have the right to determine whether an explanation by the judge would be harmful or beneficial to him.” (p. 428.)
The PIK Committee, in PIK Crim. 52.13, notes that the instruction “should not be given unless there is a specific request by the defendant.”
The instruction given is not a prejudicial reference to defend ant’s failure to testify, such as is targeted by the statute. It is not a comment upon defendant’s silence tending to impair the privilege. It is a directive to the jury to ignore and not consider defendant’s failure to testify in arriving at its verdict. The trial court is required by K.S.A. 22-3414 to instruct the jury, and it is the duty of the court to state clearly the principles of law applicable to the issues raised by the evidence in the case. The instruction given was applicable, germane, and accurate.
We hold that the instruction is not a “comment” proscribed by K.S.A. 60-439, but even so it is preferable that trial courts not give the instruction where there is but one defendant on trial and that defendant objects. Under the facts of this case we hold that the giving of the instruction was not prejudicial and is not reversible error.
The judgment is affirmed. | [
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The opinion of the court was delivered by
McFarland, J.:
This is a direct appeal from a conviction upon trial to the court wherein the defendant-appellant Kenneth D. Makin was found guilty of involuntary manslaughter (K.S.A. 21-3404). The facts are not in dispute. The information reads in part:
“[0]n or about the 4th of August, 1976, one KENNETH D. MAKIN did then and there unlawfully, wilfully [and] unintentionally kill a human being, to-wit: Jamie R. Reeves, without malice, while in the commission of an unlawful act not amounting to a felony, to-wit: operating a vehicle while under the influence of intoxicating liquor contrary to K.S.A. 8-1567 and driving a vehicle on the left side of the roadway contrary to K.S.A. 8-1514: all of said acts then and there committed being intentional, unlawful, and willful and being contrary to the statutes in such cases made and provided and being against the peace and dignity of the State of Kansas.”
The defendant’s motion to quash the information was overruled and the case proceeded to trial.
The sole issue in this appeal involves defendant’s contention that the general statute relating to involuntary manslaughter (K.S.A. 21-3404), a class E felony, is superseded by a more specific statute on vehicular homicide (K.S.A. 21-3405), a class A misdemeanor, and thus he was improperly charged under the involuntary manslaughter statute.
A similar situation was before this court in State v. Gloyd, 148 Kan. 706, 84 P.2d 966, wherein we found that a negligent homicide statute did not amend or impliedly repeal manslaughter in the fourth degree, but rather negligent homicide was held to be a lesser offense of manslaughter in the fourth degree. However, that holding is no longer controlling as both statutes involved have been repealed and replaced by the statutes now involved in this appeal.
Manslaughter is now of two classes including involuntary manslaughter as set forth in K.S.A. 21-3404:
“Involuntary manslaughter is the unlawful killing of a human being, without malice, which is done unintentionally in the commission of an unlawful act not amounting to felony, or in the commission of a lawful act in an unlawful or wanton manner. As used in this section, an ‘unlawful act’ is any act which is prohibited by a statute of the United States or the state of Kansas or an ordinance of any city within the state which statute or ordinance is enacted for the protection of human life or safety.”
The old negligent homicide statute, G.S. 1949, 8-529, provided in part:
“(a) When the death of any person ensues within one year as a proximate result of injury received by the driving of any vehicle in negligent disregard of the safety of others, the person so operating such vehicle shall be guilty of negligent homicide.”
Cases under that statute interpreted it to apply to ordinary negligence on the part of the driver of the vehicle which proximately resulted in the death of another. (State v. Miles, 203 Kan. 707, 457 P.2d 166; see State v. Champ, 172 Kan. 737, 242 P.2d 1070.)
In 1969 the legislature replaced the negligent homicide statute with vehicular homicide, K.S.A. 21-3405, which now reads in part:
“(1) Vehicular homicide is the killing of a human being by the operation of an automobile, airplane, motor boat or other motor vehicle in a manner which creates an unreasonable risk of injury to the person or property of another and which constitutes a material deviation from the standard of care which a reasonable person would observe under the same circumstances.”
In 1972 it was amended by substituting “material” for “substantial.” In State v. Gordon, 219 Kan. 643, 549 P.2d 886, we determined that the 1972 amendment was, in essence, no change at all and said:
“We think the Legislature meant something more than simple negligence when it defined the standard of conduct condemned under the vehicular homicide statute.” (p. 654.)
Under the negligent homicide and manslaughter in the fourth degree statutes, now repealed, charges arising out of a homicide caused by the operation of a vehicle could be brought under either statute, with negligent homicide being a lesser included offense. (State v. Miles, supra; State v. Gloyd, supra.)
It is the defendant’s contention that vehicular homicide, as the more specific statute on the subject of homicide caused by the operation of a vehicle, preempts the more general manslaughter statute.
Repeals by implication are never favored and a general and specific statute should be read together and harmonized wherever possible. But to the extent of repugnancy between a statute dealing generally with a subject and another statute dealing specifically with a subject, the specific statute is favored and controls. (Seltmann v. Board of County Commissioners, 212 Kan. 805, 512 P.2d 334; State v. Kliewer, 210 Kan. 820, 504 P.2d 580.)
Other jurisdictions split as to whether there is a repeal of an involuntary manslaughter statute based on criminal negligence by the more specific vehicular homicide statute. (See generally 7 Am. Jur. 2d, Automobiles and Highway Traffic, § 291, pp. 837-838; Perkins on Criminal Law [2nd ed.], pp. 79-82.) However, the precise statutory language varies from jurisdiction to jurisdiction and the variations are so significant as to be of little value in resolving the issue herein.
K.S.A. 21-3201 provides:
“(1) Except as provided by sections 21-3202, 21-3204, and 21-3405, a criminal intent is an essential element of every crime defined by this code. Criminal intent may be established by proof that the conduct of the accused person was willful or wanton. Proof of willful conduct shall be required to establish criminal intent, unless the statute defining the crime expressly provides that the prohibited act is criminal if done in a wanton manner.
“(2) Willful conduct is conduct that is purposeful and intentional and not accidental. As used in this code, the terms ‘knowing,’ ‘intentional,’ ‘purposeful,’ and ‘on purpose’ are included within the term ‘willful.’
“(3) Wanton conduct is conduct done under circumstances that show a realization of the imminence of danger to the person of another and a reckless disregard or complete indifference and unconcern for the probable consequences of such conduct. The terms ‘gross negligence,’ ‘culpable negligence,’ ‘wanton negligence’ and ‘recklessness’ are included within the term ‘wantonness’ as used in this code.”
It is significant that, pursuant to this statute, a criminal intent is an essential element of involuntary manslaughter (K.S.A. 21-3404) but is expressly excluded as an element of vehicular homicide (K.S.A. 21-3405). Wanton conduct is sufficient to establish the requisite criminal intent. Gross negligence, culpable negligence, wanton negligence, and recklessness are specifically included within the term “wantonness.”
Wanton conduct involves a realization of the imminence of danger to the person of another and a reckless disregard or complete indifference and unconcern for the probable consequences of such conduct.
Wanton conduct as so defined is not synonymous with operating a motor vehicle in a manner “which creates an unreasonable risk of injury to the person or property of another and which constitutes a material deviation from the standard of care which a reasonable person would observe under the same circumstances.”
In determining whether particular conduct is wanton, each case must stand on its own footing as applied to the facts involved (Hickert v. Wright, 182 Kan. 100, 319 P.2d 152). Precise statements of what constitutes wanton or gross negligence are impossible. If the absence of negligence is white and gross negligence is black, then innumerable shadings of grey lie between. Using this analogy the legislature obviously seeks to exclude the pale grey areas from criminal responsibility. The appellant asks us to hold that, by excluding the pale grey areas from criminal responsibility, the legislature has reduced the penalty for the conduct in the black area.
The totality of the circumstances must be considered. Identical conduct under different circumstances may result in no criminal responsibility, vehicular homicide, or involuntary manslaughter. For example, let us assume that a person is operating his vehicle at 60 miles per hour on dry pavements on a sunny day with little traffic at 4:00 on a Tuesday afternoon and he strikes and kills a pedestrian crossing the road. This same set of facts could be (a) no responsibility if it occurred in a remote, sparsely populated area; (b) vehicular homicide if it occurred in a residential area; and (c) involuntary manslaughter in a posted school zone. Even within these classes additional facts would have to be supplied before a definitive statement could be made.
We cannot find that the legislature intended to reduce the penalty from a felony to a misdemeanor for a homicide caused by wanton conduct of the defendant by requiring material deviation from ordinary care in the offense of vehicular homicide. The contrary result would be totally illogical. For example, an intoxicated person operating a vehicle at 100 m.p.h. on the wrong side of the road who kills a person, then gets out of the vehicle and steals the dead person’s wallet containing $52.00 would be guilty of a misdemeanor for the homicide and a felony for the theft.
The intent of the legislature not to totally exclude unintentional homicide arising from operation of a motor vehicle from the involuntary manslaughter statute is shown in K.S.A. 1977 Supp. 8-1005 which provides in part:
“(a) In any criminal prosecution for violation of the laws of this state relating to driving of a motor vehicle while under the influence of intoxicating liquor, or the commission of vehicular homicide or manslaughter while under the influence of intoxicating liquor, or in any prosecution for a violation of city ordinance relating to the driving of a motor vehicle while under the influence of intoxicating liquor, evidence of the amount of alcohol in the defendant’s blood at the time alleged, as shown by chemical analysis of the defendant’s blood, urine, breath or other bodily substance may be admitted and shall give rise to the following presumptions:” (Emphasis added.)
K.S.A. 8-1005 was amended by the 1976 Legislature to clarify how the percentage of alcohol should be computed but the legislature reenacted, unchanged, the portion of the statute above-quoted.
We therefore conclude that an unintentional homicide arising from the operation of a motor vehicle which resulted from wanton conduct (gross negligence) is included within involuntary manslaughter (K.S.A. 21-3404).
However, this result does not completely resolve the issue on appeal. Involuntary manslaughter additionally encompasses “the commission of an unlawful act not amounting to felony.”
We held in State v. Betts, 214 Kan. 271, 519 P.2d 655, as follows:
“To sustain its case under this statute it was incumbent on the state to prove two elements: first, an unintentional killing; and second, that appellant was at the time either engaged in the commission of a misdemeanor or was operating his car in a wanton manner. . . .” (pp. 274-275.)
The problem herein is that it is virtually impossible to be negligent in the operation of a motor vehicle without committing a misdemeanor.
Articles 15, 16, 17, 18, and 19 of Chapter 8 of the Kansas Statutes contain a vast array of traffic-related offenses which are all misdemeanors pursuant to K.S.A. 8-2116.
We hold that, in the field of unintentional homicide by operation of a motor vehicle, the specific statute, vehicular homicide (K.S.A. 21-3405), is concurrent with and controls the general statute on involuntary manslaughter (K.S.A. 21-3404) except where the acts of the accused constitute wanton conduct (gross negligence). Accordingly, the issue in all such cases where the charge is involuntary manslaughter becomes whether or not the conduct of the defendant was grossly negligent. In virtually all cases, then, vehicular homicide would be a lesser included offense of involuntary manslaughter and the jury should be instructed thereon.
The trial herein was a bench trial. There was substantial competent evidence to establish that at the time of the homicide the appellant was operating his vehicle on the left side of the road and was under the influence of intoxicating liquor. There was sufficient evidence of wanton conduct to support the conviction of involuntary manslaughter.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Fromme, J.:
Edward J. Berry was convicted of murder in the first degree (K.S.A. 21-3401) and aggravated robbery (K.S.A. 21-3427). The victim was a taxi driver, Gwen Dopps, who had been advised to pick up a cab fare at Hawk’s Pharmacy in Wichita in the early morning hours of September 13, 1976. Gwen Dopps stopped at the pharmacy and picked up a man and a woman who gave her their destination. On arrival at that destination the man and woman got out of the taxi and the man approached the driver on the left side of the vehicle. He drew a hand gun, demanded money, then shot Gwen Dopps in the head. The two passengers fled, the scene. Witnesses came to the aid of the victim and she was rushed to a hospital. Her billfold and some currency were found on the ground at the scene of the crime. The woman passenger turned out to be Barbara Harris who pled guilty to criminal charges. She testified for the prosecution. Gwen Dopps was in the hospital for approximately 30 days and seemed to be recovering when suddenly she died. The doctor who conducted an autopsy on the body testified that death was caused by a gunshot wound in the head which activated a vagus nerve. This brought about a stress ulcer which started severe hemorrhaging in the small intestine. The resulting loss of blood brought about the death. Other facts will be developed in examining the two points raised in this appeal.
Eight days after Gwen Dopps was shot and six days before the complaint was filed two detectives of the Wichita Police Department talked to the victim when she was in the hospital. At the trial, after a hearing before the judge, the detectives were permitted to testify as to what Gwen Dopps told them about the incident. The appellant assigns this as error because her statement was admitted under an exception to the hearsay rule, and he alleges the conditions for allowing the admission were not met.
Detective Rummery testified that he talked to Gwen Dopps on September 21,1976, in Room 333, Building 4 of Wesley Hospital. On entering the room Detective Rummery identified himself and told Miss Dopps that he needed to talk with her. He asked her if she would tell him what had taken place on September 13, 1976, when she had been robbed and shot. Miss Dopps stated that she heard the cab company dispatcher put out a call for a fare at the Hawk’s Pharmacy at 501 North Hillside, whereupon she responded and advised that she would take the call as she was in the area. She drove to the Hawk’s Pharmacy and picked up a young black couple, a male and a female. She was informed that they wished to go to 20th and Stadium Streets. The black male asked her how much it would cost. Miss Dopps told the young man that it would cost $1.85. He responded that he only had two dollars. She said that would be fine because the fare would not be that much. Miss Dopps stated that when she arrived in the 2000 block of Stadium Street she drove into a driveway that was pointed out to her by the black male. He got out of the right door and walked around to the left driver’s side next to her. He then told her that he would rather have $1.85 instead of giving her that amount. He then placed a pistol against her neck and pushed her head down towards the seat demanding money. She started to give him what money she had and for some reason unknown to her the black male called her an obscene name and then shot her in the face. Miss Dopps stated that she had given the young man approximately $10.00. Detective Rummery then showed Miss Dopps a series of eight photographs of black males and asked her if she could identify her attacker. Miss Dopps looked at the photographs numerous times and retained four of the eight saying that they were similar to the person who had robbed her. One of the four photographs retained by Miss Dopps was of the defendant, Edward J. Berry. Detective Rummery also showed Miss Dopps a series of six photographs of black females. After carefully looking at those photographs Miss Dopps retained two of those. One was a photograph of Barbara Harris. Miss Dopps stated that she did not know whether she would be able to recognize her attackers. The inside of the cab was dark.
The statute which governs the admissibility of hearsay statements such as these is K.S.A. 60-460(d)(3). It reads:
“Evidence of a statement which is made other than by a witness while testifying at the hearing offered to prove the truth of the matter stated is hearsay evidence and inadmissible except:
“(d) Contemporaneous statements and statements admissible on ground of necessity generally. ... (3) if the declarant is unavailable as a witness, a statement narrating, describing or explaining an event or condition which the judge finds was made by the declarant at a time when the matter had been recently perceived by the declarant and while his or her recollection was clear, and was made in good faith prior to the commencement of the action and with no incentive to falsify or to distort;”
When the statement was admitted at the trial the declarant was dead. The statement by declarant narrated events which she had perceived eight days prior to making the statement. The court determined that her recollection of events was clear, that the statement had been made in good faith prior to the commencement of the action, and that it was made with no incentive to falsify or distort. This fulfills the requirements of the statute, and the court’s findings are amply supported by the evidence. A hearsay statement made by a declarant who is unavailable as a witness may be admitted if the trial judge makes the findings required by K.S.A. 60-460(d)(3), even if such statement was not made contemporaneously with the event or condition it narrates, describes or explains. (State v. Adams, 223 Kan. 254, 573 P.2d 604; Smith v. Estate of Hall, 215 Kan. 262, Syl. ¶ 4, 524 P.2d 684; and State v. Brown, 220 Kan. 684, 688, 556 P.2d 443.)
The appellant in this court attempts to raise a constitutional question which arises in the application of this statute since the opportunity to confront the witness is precluded. He cites no cases directly in point. Our limited research indicates the high court has never spoken definitively on the question and it has treated the question on a case by case basis. The final decisions on the question depend on many considerations including necessity, probative value, and reliability, to name a few. It would appear the requirements of the statute bear upon those considerations. However, since this is a constitutional question which was not presented in the court below and which is only superficially presented on appeal, we do not consider the point as properly before us. Where constitutional grounds for reversal of a judgment are asserted for the first time on appeal they are not properly before the appellate court for review. (State v. Ambler, 220 Kan. 560, 562, 552 P.2d 896; State v. Estes, 216 Kan. 382, 385, 532 P.2d 1283.)
As his final point appellant argues there was not sufficient evidence presented upon which the jury could find that there was a sufficient causal relationship between the gunshot wound to the head and the death of Gwen Dopps. It is argued the cause of death as shown by the evidence was based on an inference which was no more than surmise, conjecture, or possibility. If appellant’s evaluation of the evidence is correct this would be in violation of our holdings in State v. Nichols, 212 Kan. 814, 818, 512 P.2d 329, and State v. Taylor, 212 Kan. 780, 788, 512 P.2d 449.
A review of Dr. Eckert’s testimony convinces this court that appellant’s evaluation of the evidence is incorrect. Within two or three hours of Gwen Dopps’ death, Dr. Eckert, a certified pathologist in general and forensic pathology, conducted a post-mortem examination upon the body of Gwen Dopps. Dr. Eckert conducted an extensive examination both externally and internally which included dissection of the major organs of the body and an x-ray examination. Dr. Eckert found evidence of a very severe hemorrhage in the body of Miss Dopps. The hemorrhage had emanated from a large “Cushing’s ulcer” located in the small intestine. He removed several bullet fragments from both the interior and exterior of Miss Dopps’ skull and also removed numerous fragments from the inside of her brain, noting that the fragments had caused brain damage. In his examination, Dr. Eckert noted that there was no evidence of any prior ulcers in Miss Dopps’ intestines. At trial Dr. Eckert testified that in his opinion the ulcer which had resulted in the death of Miss Dopps was a type associated with a head injury, stroke, or some massive catastrophe involving the brain. He stated that based upon his experience in studying this type of injury the ulcer was one commonly known as a “Cushing’s ulcer”. He stated that this type of ulcer was a stress ulcer where the ulceration occurred in response to injuries related to the brain such as trauma caused by a gunshot wound. Noting that a “Cushing’s ulcer” only occurs in a very low percentage of cases, he spoke with the chief medical examiner of Phoenix, Arizona, about this particular case. The examiner agreed that in this particular case it was an example of the “Cushing’s ulcer”. Under extensive cross-examination, Dr. Eckert testified that the case in point was a head injury-ulcer combination, an example of an acute stress ulceration. He negated both defense theories as to the cause of the ulcer. He stated that there was no medical evidence of a cause and effect relationship between steroid therapy and ulcers. This was in response to testimony elicited at trial which showed that Miss Dopps had been taking a steroid medication. Dr. Eckert further testified that the ulcer which caused the death of Gwen Dopps was an acute ulcer and not a chronic ulcer as contended by the defendant. He concluded that death was caused by the injury, ulcer and hemorrhaging which were causally connected.
When a verdict is challenged for insufficiency of the evidence in a criminal case the issue on appeal is not whether the evidence establishes guilt beyond a reasonable doubt, but whether the evidence is sufficient to form the basis for a reasonable inference of guilt viewed in the light most favorable to the state. In determining the sufficiency of the evidence the court considers only evidence favorable to the decision. State v. Childers, 222 Kan. 32, 563 P.2d 999; State v. Ritson, 215 Kan. 742, 529 P.2d 90.
In the present case, the defendant challenges the sufficiency of the evidence presented to prove the cause of the acute ulcer that resulted in the victim’s death. He takes the position that the evidence of a causal connection between the head injury inflicted by the defendant and the acute ulcer is insufficient. It is well recognized that the weight to be given the evidence and the reasonable inferences of fact to be drawn from that evidence are within the province of the jury. State v. Duncan, 221 Kan. 714, 562 P.2d 84; State v. Gustin, 212 Kan. 475, 510 P.2d 1290.
In the present case there was eyewitness testimony that appellant shot the victim in the head and that she died 30 days later while still in the hospital. There was expert testimony from the doctor who conducted the autopsy on her body. He testified the head injury caused the stress ulcer which in turn brought about her death from loss of blood. Such expert testimony cannot be classed as mere surmise, conjecture, or possibility.
When the doctor conducts an autopsy and from such examination testifies the victim’s death was the result of hemorrhaging from a “Cushing’s ulcer” caused by a gunshot wound in the head such testimony possesses the requisite degree of probative force to support a finding that the victim died as a result of the gunshot wound.
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The Opinion of the court was delivered by
Prager, J.:
This is an appeal from a mortgage foreclosure rendered in favor of the plaintiff-appellee, Kansas Savings and Loan Association, a lending agency with its offices located in Shawnee Mission, Kansas. The defendant, Rich Eckel Construction Company, Inc., is a corporate real estate developer in Johnson county. The defendants, Robert B. Olsen, Merrill R. Talpers, and David A. Welte, are partners in a firm engaged in the general practice of law in Kansas City, Missouri. In this opinion we will refer to these defendants as the Olsen partners. There were other party defendants claiming various interests in the mortgaged property. With the exception of the Olsen partners, the controversies between the plaintiff and Rich Eckel Construction Company and the other defendants have been determined in the district court. The sole controversy on this appeal is between the Kansas Savings and Loan Association and the Olsen partners.
The essential facts in the case are not in dispute and are as follows: Rich Eckel Construction Company, Inc., undertook the development of Whispering Hills subdivision in Johnson county. It was to be a rather extensive real estate development involving several large tracts of land. The financing for the project was provided by the plaintiff Kansas Savings. In 1972-1973 Rich Eckel Construction executed three notes and four mortgages to Kansas Savings. All of the land subject to the mortgages was located in the same general area and was involved in different phases of development of the project. Certain provisions in each of the mortgages provided for the waiver of the right of redemption by the corporate mortgagor and the sale of the mortgaged property en masse and not in parcels in the event of a foreclosure sale. It is undisputed that as a part of the financial plan for developing Whispering Hills, Kansas Savings and Rich Eckel Construction agreed that, as individual lots were sold to individual purchasers, a partial release of the mortgage lien on the lot sold would be executed by Kansas Savings upon the payment of $10,500 with interest. By this procedure the purchaser of an individual lot could obtain his own financing and, as to that lot, Kansas Savings would no longer have a mortgage lien interest. Such provisions will be discussed later as necessary in determining the questions of law raised on this appeal.
For some period of time prior to September 1975, Rich Eckel Construction Company had employed the Olsen, Talpers, and Welte law firm to perform legal services of various kinds, including representation in certain litigation involving the construction company. The record indicates that Rich Eckel Construction encountered financial difficulties. In February of 1975, Rich Eckel Construction conveyed twenty-one vacant lots in the Whispering Hills subdivision to the Olsen partners as part payment of attorney fees owed to the law firm by the construction company. It appears that this conveyance was in the form of a general warranty deed which contained no limitation or condi tion on the title thereby conveyed. The deed was recorded and the interest conveyed in the twenty-one lots was, of course, subject to the prior recorded mortgages to Kansas Savings.
In the summer of 1975, Rich Eckel Construction defaulted on its payments under the various mortgages. Kansas Savings thereupon filed petitions in three separate cases in the Johnson county district court to foreclose the four,real estate mortgages on the vacant lots and tracts which had not theretofore been sold by Rich Eckel Construction Company. One action for foreclosure did not involve the property owned by the Olsen partners. Petitions filed in two cases involved mortgages which covered the twenty-one lots Rich Eckel Construction had conveyed to the Olsen partners. Hence, it was necessary to make the Olsen partners parties in those two cases. In passing, it should be stated that there was nothing unusual about the petitions filed seeking foreclosure of the various mortgages. As to the defendants Olsen partners, the petition in the two cases simply alleged that Olsen, Talpers, and Welte claimed some interest or lien in certain described lots by virtue of a conveyance, which interest or lien was subject to the superior mortgage lien of the plaintiff.
On October 14, 1975, the Olsen partners filed answers in the two cases in which their property was involved. Both answers consisted of a general denial of certain allegations and a request that their lots be sold at foreclosure sale individually rather than by the entirety. The name of Park McGee, a Johnson county lawyer, appeared on each answer as counsel below the name of the Olsen, Talpers, and Welte firm. The defendant, David A. Welte, certified that a copy of each answer had been mailed to the plaintiff’s attorney on October 13, 1975. Separate answers were also filed by the other defendants, including Rich Eckel Construction Company. At this point all three cases were at issue and ready for pretrial proceedings.
On October 16, 1975, plaintiff Kansas Savings filed a motion to consolidate the three foreclosure actions “for the purpose of discovery and other pretrial matters for trial” for the reason that there were a substantial number of common questions of fact and law. This motion was set for hearing on December 10, 1975, before District Judge Herbert W. Walton. A copy of the motion to consolidate was mailed to David A. Welte on behalf of his law firm. A hearing was held on the motion to consolidate on De cember 10, 1975. At that time an order of consolidation was entered. It was also agreed among the parties who actually appeared that the hearing should serve as an informal pretrial conference in order to expedite the case in view of the fact that all parties had been notified of the hearing. There was no appearance by any of the Olsen partners nor by Park McGee as local counsel on their behalf. The issues of fact in the case were determined by the court and by the parties present on December 10 to be as follows:
(1) Whether or not the mortgages were in default;
(2) what amount was due under each mortgage; and
(3) what property was covered under each of the three mortgages.
These three issues are, of course, the basic issues in any action to foreclose a real estate mortgage.
On January 30,1976, the plaintiff Kansas Savings filed a motion for judgment on the pleadings in the three cases as consolidated. This motion was set for hearing on March 25, 1976, before Judge Walton. A copy of the motion, including a copy of the notice of hearing, was mailed to Park McGee as attorney for the Olsen partners on January 30, 1976. There apparently was some understanding between Kansas Savings and Rich Eckel Construction Company that witnesses would be available to present evidence on the status of the mortgages if it became necessary.
On March 25,1976, a hearing was held on the plaintiffs motion for judgment on the pleadings. The Olsen partners complain on this appeal that at this hearing they were denied their day in court and an opportunity to present evidence on their own behalf. It appears that immediately prior to the formal hearing a brief conference was held in the chambers of Judge Walton. A record was not made of this conference. It is undisputed that the defendant Robert B. Olsen, representing himself and his law firm, advised the court that their local counsel, Park McGee, had ceased to represent them because of some conflict of interest only thirty-six hours prior thereto. For this reason, Olsen objected to proceeding with plaintiff’s motion for judgment on the pleadings at that time. Olsen also informally objected to the introduction of any evidence by plaintiff as inappropriate to support its motion for judgment on the pleadings. Notwithstanding these objections, the district judge ordered that a trial to the court proceed forth with on the three issues of fact which had been agreed upon at the pretrial conference on December 10, 1975. Thereupon, witnesses were called by Kansas Savings and documentary evidence was admitted showing the mortgages were in default, the amount of unpaid sums due on each mortgage, and the property covered under each of the mortgages. The evidence also established the existence of the agreement between Kansas Savings and Rich Eckel Construction Company to release any lot when sold, by the payment of $10,500. Further testimony of Rich Eckel confirmed the status of the various notes and mortgages as shown by the documents introduced by Kansas Savings. The defendants, Olsen partners, neither offered evidence nor did they place on the record either of the objections to proceeding to trial which they had earlier made in the judge’s chambers. At the conclusion of this hearing, the plaintiff Kansas Savings was granted judgment in each of the three cases as consolidated. The amounts due on each mortgage were determined; the four mortgages were foreclosed; and, subject to a further determination by the court with reference to certain claims of the Whispering Hills Homes Association which are not involved here, the property described in the mortgage in each case was ordered sold in the entirety and not in parcels and without a period of redemption allowed to the mortgagor, Rich Eckel Construction, or to the Olsen partners after the foreclosure sale.
It is important to note that in its judgment the district court did provide a right of redemption to the Olsen partners prior to the foreclosure sale. The Olsen partners were given the same privilege previously afforded purchasers of individual lots to obtain release of any of the twenty-one lots previously deeded to them, upon payment to the plaintiff of the sum of $10,500, plus interest from date of default, for each lot so released. Defendants were thus given a period of time beginning on March 25, 1976, and ending on the date of the sheriff’s sale, September 9, 1976, a period of approximately five and one-half months, in which to sever their parcels of land from the sheriff’s sale and thus to avoid the order of the court that all of the property included under each mortgage was to be sold en masse. We are advised in the brief of counsel that the Olsen partners did not exercise their privilege to obtain a release of any of their twenty-one lots by payment of the stated amount.
On April 8, 1976, the Olsen partners, without aid of local Kansas counsel, filed a motion to reopen the record. On April 26, 1976, they filed the appeal to this court which is now before us for determination. On May 4, 1976, a hearing was held before Judge Walton on the motion to reopen the record. Robert B, Olsen appeared on behalf of the law firm, with no local counsel present. The stated purpose of the motion to reopen the record was limited to a request to create a record of the informal objections made by Robert B. Olsen to the court immediately prior to the evidentiary hearing on plaintiff’s motion for judgment on pleadings held on March 25, 1976. There were other matters covered in depth by court and counsel at the hearing on May 4, 1976, which will be discussed under the points raised on the appeal.
On the appeal the Olsen partners raise five points, three of which involve the same basic issue and may be combined for the purpose of determining this case. We will first discuss the three points raised by the Olsen partners which, in substance, assert a claim that they were denied a fair trial and the opportunity to present evidence on their behalf at the hearing held on March 25, 1976. At the outset it should be noted that the four mortgages to be foreclosed in the three consolidated cases involved sums of money in excess of $1,500,000. Thus the primary controversy in the case was between the mortgagee, Kansas Savings, and the mortgagor real estate developer, Rich Eckel Construction. Obviously, none of the parties disputed the fact that the mortgages were in default. A determination of the sums due on each of the mortgages and the property to be sold at foreclosure sale was essentially a matter involving mathematical calculations following an examination of the books and records of Kansas Savings and Rich Eckel Construction. The trial court had the duty to dispose of this litigation without unnecessary delay. At the hearing on December 10,1975, the trial judge went to the very heart of the controversy by listing the three basic issues of fact involving Kansas Savings and Rich Eckel Construction. Unfortunately, the Olsen partners did not appear at that hearing, although a copy of the motion and notice of hearing was mailed to the Olsen firm.
At the hearing on December 10, 1975, the court and counsel who were present agreed that the hearing would serve as an informal pretrial conference in order to expedite the case. As pointed out above, those issues were: Whether the mortgages were in default; what amount was due under each mortgage; and what property was covered under each of the three mortgages. We do not read the answers filed by the Olsen law firm as raising any issues of fact other than those set forth above. The answers filed by the Olsen partners simply denied the execution of the notes and mortgages and that they were in default. The answers further denied allegations as to the existing liens and claims of other defendants. The prayer of each answer requested the court that, if the property was sold at foreclosure sale, it be sold lot by lot rather than in its entirety; that the rights of the defendants, Olsen partners, be recognized and protected at all stages of the proceedings; and that the plaintiff’s petition be dismissed and costs be taxed against the plaintiff. Legal issues as to the Olsen partners’ right of redemption and as to the validity of the clause in each mortgage requiring a sale of the entire property on foreclosure rather than in parcels were still undetermined.
Unfortunately, this case is unduly complicated by the fact that the plaintiff Kansas Savings filed a motion for judgment on the pleadings rather than requesting a trial of the case. Since there were issues of fact still to be determined, a motion for judgment on the pleadings was not appropriate when the parties appeared for hearing on March 25,1976. At that time the trial court, instead of dealing with the motion as filed, proceeded to trial on the issues of fact pertaining to the status of the various notes and mortgages. Obviously, Robert B. Olsen, representing the Olsen partners, was caught by surprise. He was present for a hearing on a motion for judgment on the pleadings and was confronted by a trial to the court. Had the Olsen partners been prejudiced in this unusual procedure by being denied their right to present evidence, such action would justify the reversal of this case and the granting of a new trial.
The Olsen partners maintain on this appeal that the district court erred in granting plaintiff’s motion for judgment on the pleadings in the face of genuine issues of fact raised at the pretrial conference on December 10, 1975. But the district court did not grant judgment on the pleadings. It held an evidentiary hearing on the factual issues raised and granted judgment on the basis of the evidence presented, consisting of testimony and documentary evidence from both Kansas Savings and Rich Eckel, in which the amounts due on the notes and mortgages and the property in volved thereunder were determined. Thus, if the district court has committed error, it is not for the reason that it improperly granted a motion for judgment on the pleadings.
The Olsen partners also complain that at the hearing on March 25,1976, they were not given a reasonable opportunity to present evidence on the factual issues in the case and further that the district court erred in proceeding to trial in view of the withdrawal of their counsel, Park McGee, less than thirty-six hours prior to the hearing. These contentions would have merit if the Olsen partners could show that they were prejudiced by the action taken by the district court.
Unfortunately, we do not have before us a record of the proceedings held on March 25,1976. In any event, the difficulty of an inadequate record was surmounted when the Olsen partners filed a motion to reopen the record on April 8, 1976. As noted above, this motion was set before Judge Walton on May 4, 1976. At this hearing, Robert B. Olsen appeared on behalf of himself and his law firm with no Kansas counsel present. Olsen complained to the district court that the court should not have proceeded to trial on March 25 in the absence of the Olsen partners’ counsel who had withdrawn thirty-six hours before the hearing; that there should not have been an evidentiary hearing on a motion for judgment on the pleadings; and further that the Olsen partners were prejudiced by not being prepared at that time to present their evidence. Olsen stated that he wanted to reopen the record only for the limited purpose of showing that these objections were made to the trial court at the time.
After Olsen had stated his objections, Judge Walton immediately became concerned that his rulings had in some way prejudiced the rights of the Olsen partners. He advised Olsen that he wanted to ascertain what possible prejudice the Olsen firm could have suffered at the hearing on the status of the notes and mortgages. The judge asked Olsen if he had additional evidentiary matters to present which the Olsen partners were denied an opportunity to present on March 25, 1976. Olsen stated categorically that he had no additional evidence to present. Again the trial judge asked Olsen to state how the Olsen partners had been prejudiced because of the want of assistance of a Kansas attorney, resulting from Park McGee’s withdrawal. Olsen stated frankly he did not know what Mr. McGee might have been able to do for the Olsen partners. The trial court then pointed out that the Olsen partners had had a month and one-half to reevaluate the evidence pertaining to the status of the notes and mortgages. The judge again stated that he wanted to ascertain what type of prejudice might have occurred. The judge made it clear that he wanted to be fair to Olsen, but that there was no reason for the court to go through a proceeding in futility. In substance, the court asked Olsen what possible evidence he had as to the status of the notes and mortgages which had not been shown by Kansas Savings and Rich Eckel at the hearing on March 25, 1976. Olsen stated that he could not tell the court that the Olsen partners would have been able to prevail upon the court not to grant judgment on March 25, 1976. Furthermore, Olsen stated that the Olsen firm was not objecting to the sufficiency of the evidence to support the court’s findings as to the status of the notes and mortgages. All Olsen wanted the court to do was to determine what objections were made prior to the formal hearing on March 25, 1976. The trial judge then stated that he would make an order to show that Olsen made the objections to proceeding with the hearing as Olsen had indicated. The judge then emphasized again that if there was anything prejudicial to the rights of the Olsen partners, he would consider any type of motion Olsen might file and would reopen the case to give the Olsen partners an opportunity to file any additional evidentiary matters. Olsen rejected this opportunity to offer additional evidence.
On the basis of the record before us, we have concluded that it would serve no useful purpose whatsoever to reverse the trial court and grant a new trial so that the Olsen partners can have another opportunity to present additional evidence as to the amounts due on each of the notes and mortgages and the properties covered thereunder. This court has always been concerned that litigants in the Kansas trial courts are given a full opportunity to present their evidence. (Santee v. North, 223 Kan. 171, 574 P.2d 191; Farmers Union Central Cooperative Exchange v. Tomson, 192 Kan. 274, 387 P.2d 202; Richa v. Wichita Precision Tool Co., 190 Kan. 138, 373 P.2d 201.)
In this case we fail to see how the Olsen partners could have been prejudiced in any way by the trial court’s determination of the factual issues presented by the pleadings. Error which does not prejudice the substantial rights of a party affords no basis for a reversal of a judgment and must be disregarded. (K.S.A. 60-2105; Patterson v. Burt, 213 Kan. 463, 516 P.2d 975.) We decline to grant the Olsen partners a new evidentiary hearing and will proceed to determine the issues of law which have been raised by them on the appeal.
As their next point of error the Olsen partners contend that the trial court erred in denying them a right of redemption after the foreclosure sale as to the twenty-one lots which had been conveyed to them by warranty deed. It is the position of Kansas Savings that the right of redemption was specifically waived in each of the mortgages by the mortgagor, Rich Eckel Construction Company, Inc., and that such waiver of redemption after foreclosure sale was binding on the Olsen partners as grantees of twenty-one lots from the corporation. The determination of this question requires us to construe K.S.A. 1975 Supp. 60-2414 which provides in pertinent part as follows:
“60-2414. Redemption of real property.
“(a) Right of redemption by defendant owner. Except as stated in paragraph (q) and as otherwise provided by law, the defendant owner may redeem any real property sold under execution, special execution, or order of sale, at the amount sold for, together with interest, costs and taxes, at any time within twelve (12) months from the day of sale, for the amount paid by the then holder of the certificate of purchase together with interest, costs and taxes to the date of redemption, and shall in the meantime be entitled to the possession of the property; but where the court or judge shall find that the lands and tenements have been abandoned, or are not occupied in good faith, the period of redemption for defendant owner shall be six (6) months from the date of sale. The right of redemption shall not apply to oil and gas leaseholds. Any corporation organized under the laws of the United States, the Distnct of Columbia or any state of the United States, may, as mortgagor, agree in the mortgage instrument to a shorter period of redemption than twelve (12) months, or may wholly waive the period of redemption as against said corporation mortgagor only and all such agreements when so made shall be fully binding on such mortgagor.
“(b) Redemption by lien creditor. For the first three (3) months after such sale, the right of the defendant owner to redeem is exclusive; but if no redemption is made by the defendant owner by the end of that time, any creditor of the defendant and owner whose demand is a lien upon such real estate may redeem the same at any time within six (6) months from the date of sale. All redemption periods and rights of lien creditors set forth in subsections (b), (c), (d), (e), (f), (g), (h), (o) and (q) of this section shall commence on the date of judgment or date of judicial sale, if any be ordered, and expire three (3) months thereafter, if the judgment of foreclosure finds no redemption for the defendant owner by reason of a valid waiver under subsection (a) of this section. The first creditor redeeming need only pay the amount sold for, together with interest, costs and taxes to the date of redemption. All other redemptions, with the exception of that of the defendant owner or his transferee, shall be made under the terms of subsections (d), (e) and (f) of this section. Where the defendant owner or his transferee redeems subsequent to redemption by a creditor so entitled he shall pay the amount paid by the then holder of the certificate of purchase together with interest, costs and taxes to the date of redemption.
“(c) Creditors who may redeem. Any creditor whose claim is or becomes a lien prior to the expiration of the time allowed by law for the redemption by creditors may redeem. A mortgagee may redeem upon the terms hereinafter prescribed before or after the debt secured by the mortgage falls due.
“(k) Transfer of right of redemption. The rights of the defendant owner in relation to redemption may be assigned or transferred, and the purchaser or assignee thereof shall have the safqe right of redemption as the defendant owner; but the right of redemption shall not be subject to levy or sale on execution.
“(l) Holder of legal title. The holder of the legal title at the time of issuance of execution or order of sale shall have the same right of redemption upon the same terms and conditions as the defendant in execution, and also shall be entitled to the possession of the property the same as the defendant in execution.” (Emphasis supplied.)
Counsel for both parties agree that Rich Eckel Construction Company, Inc., as a corporate mortgagor, effectively waived its right to redemption in the four mortgages. The issue which must be determined is whether the Olsen partners, as grantees of certain lots covered by the mortgage, are bound by the waiver of the corporate mortgagor. The Olsen partners rely upon the language in section (a) of 60-2414 which in substance provides that any corporation may, as mortgagor, wholly waive the period of redemption as against said corporation mortgagor only and all such agreements when so made shall be fully binding on such mortgagor. They further rely on section (b) which provides redemption rights to a lien creditor. On the appeal the Olsen partners for the first time have taken the position that they were not the owners of the twenty-one lots by virtue of their warranty deed from Rich Eckel Construction. They now claim they actually accepted the deed only as security for payment of their attorney fees. From this they maintain that they have the status of lien creditors. The conveyance of the twenty-one lots to the Olsen partners was by warranty deed absolute on its face. At no place in their pleadings did the Olsen partners claim only a lien on the property. In fact, at the hearing on May 4, 1976, Robert B. Olsen advised the court that the Olsen partners had taken title to the lots as part of the fee that was owed to them. At this late date, the Olsen partners cannot be permitted to change their position and claim that they are actually lien creditors and not owners in fee of the twenty-one lots. We have concluded that any rights of redemption of the Olsen partners must depend upon their status as purchasers or transferees of the rights of the corporate mortgagor in the twenty-one lots. In this regard we note that, by virtue of section (k) of 60-2414 quoted above, the purchaser or assignee of the rights of the defendant owner shall have the same right of redemption as the defendant owner. Considering all sections of the statute together, we have concluded that 60-2414 should be construed so that a purchaser of the interest of the mortgagor in mortgaged property takes subject to the provisions of the mortgage. Thus a noncorporate assignee or purchaser of the interest of a corporate mortgagor which has waived its right of redemption is bound by that waiver of redemption. To hold otherwise would defeat the contractual rights of the mortgagee who has extended credit to a corporate mortgagor in reliance on the latter’s agreement to waive its right of redemption in the case of a foreclosure sale.
K.S.A. 60-2414, as it existed in 1975, was not entirely clear on this point. However, we note that in 1977, section (a) of 60-2414 was amended to read as follows:
“(a) . . . Any corporation, general partnership or limited partnership . . . may, as mortgagor, agree in the mortgage instrument to a shorter period of redemption than twelve (12) months, or may wholly waive the period of redemption as against said mortgagor and all persons receiving title from said mortgagor. . ...” (Emphasis supplied.)
The 1977 amendment clarified the legislative intent. K.S.A. 1975 Supp. 60-2414 (a) should be construed in accordance with the amendment made in 1977. To summarize then, we have concluded that the waiver of the right of redemption, provided for in the mortgage by agreement of the corporate mortgagor, Rich Eckel Construction Company, Inc., is binding on the Olsen partners since they received title to the twenty-one lots from that corporate mortgagor. It follows that the district court did not err in denying a right of redemption after foreclosure sale to the Olsen partners. In passing it should be noted that the trial court did not completely deny to the Olsen partners an opportunity to protect their interest in the lots. The district court gave them the privilege of obtaining a release as to one or more of the twenty-one lots deeded to them by payment to Kansas Savings of the sum of $10,500 plus interest for each lot released. This is the same right which was afforded purchasers of lots from Rich Eckel Construction Company. Under the circumstances we do not believe that the Olsen partners have any just complaint.
The final point raised by the Olsen partners on the appeal is that the district court erred in ordering the land covered by the mortgages in each case to be sold en masse, rather than by separate parcels. In entering judgment, the trial court decided each of the three cases separately and ordered three separate foreclosure sales, one under each case. Each of the mortgages involved contained a section 12 (a) which provided as follows:
“12. If default be made in payment of any installment of principal or interest of said note or any part thereof when due, or in payment, when due, of any other sum secured hereby, or in performance of any of Mortgagor’s obligations, covenants or agreements hereunder.
“(a) All of the indebtedness secured hereby shall become and be immediately due and payable at the option of mortgagee, without notice or demand which are hereby expressly waived, and this mortgage may be foreclosed at any time after such default. Any judgment for the foreclosure of this mortgage shall provide that all the land herein described shall be sold together and not in separate parcels.” (Emphasis supplied.)
In support of its position the Olsen partners argued that a sale en masse would deprive the Olsen partners of their right of redemption and an opportunity to protect their interest at the sale. The defendants direct our attention to a number of cases where the circumstances of the particular case made it inequitable for the mortgaged property to be sold on foreclosure sale en masse rather than in parcels. The plaintiff Kansas Savings maintains in substance that a mortgagor and mortgagee may lawfully agree in advance as to the manner of sale of the property after foreclosure and that such an agreement should be binding. Here each of the mortgages specifically provided that “any judgment for the foreclosure of this mortgage shall provide that all land herein provided shall be sold together and not in separate parcels.” Kansas Savings further contends that, although the Olsen partners were not parties to that agreement, they nevertheless are bound by the provisions of the mortgage which was on file at the time they were conveyed title to the twenty-one lots.
Under the circumstances of this case we find nothing inequitable in ordering a sale of the property en masse as the parties agreed in the original mortgage. The parties to the mortgage contemplated that, as individual lots were sold, each lot would be released from the mortgage by the payment of an agreed sum of $10,500 to the mortgagee. Rich Eckel Construction Company was in the business of developing and selling real estate by lots and apparently was unable to make sufficient sales of lots to keep up with the mortgage payments. There is no reason to suppose that better sales results could have been achieved at a public foreclosure sale than Rich Eckel Construction had achieved in the normal course of business. The Olsen partners have not demonstrated to us that the district court committed error in enforcing the provision of each mortgage that the property not previously released be sold en masse at a foreclosure sale. This is especially true in this case, because the trial court did in fact afford to the Olsen partners the opportunity to obtain a release of any lot by paying the agreed sum of $10,500 plus interest, which was the same right afforded other purchasers of lots from Rich Eckel Construction Company.
For the reasons set forth above, we have concluded that the defendants, Olsen, Talpers, and Welte, were not denied their rights as grantees of the twenty-one lots from the corporate mortgagor, Rich Eckel Construction Company, Inc. Finding no prejudice in the actions of the trial court, we find no legal reason for reversing the case or granting the defendants a new trial.
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The opinion of the court was delivered by
Prager, J.:
This is a direct appeal from a conviction of indecent liberties with a child. (K.S.A. 1975 Supp. 21-3503.) The facts in the case are substantially as follows: The defendant-appellant, Charles V. Wells, was an employee of a Kansas City, Kansas, YMCA. He worked in the towel room during the afternoon — evening shift. On the evening of May 20, 1976, the director of a juvenile youth home took three of his wards to the YMCA for a swim. The three youths and their respective ages were Anthony Smith, age 13, Joey Elliott, age 15, and John Satchell, age 14. The evidence presented by the state showed that as the three boys were changing into their swimming trunks the defendant grabbed Anthony Smith and slapped him on his bare bottom. Thereafter all three boys and their director entered the swimming pool area. After swimming for some time Anthony Smith and John Satchell left the swimming area and went to the towel room. There the defendant grabbed Anthony Smith, sat him on his lap, and started to rub his face on his back. Anthony managed to escape from the defendant, leaving John Satchell with defendant in the towel room. The state’s witnesses testified that they observed Wells with his right hand under a towel which John Satchell had wrapped around his trunk area, that the defendant Wells was moving his hand around inside the towel, and that it appeared that the defendant Wells was massaging the boy’s sexual organs. The witnesses observed these acts through a crack between the top and bottom panels of a “Dutch” type door. John Satchell testified that the defendant Wells rubbed his legs and actually touched his sexual organs. On observing the incident, the director of the juvenile home immediately removed the three boys from the YMCA and reported the matter to the police. The defendant Wells was arrested and charged with the crime of indecent liberties with a child. The defendant took the stand and denied his guilt. Following his conviction the defendant appealed to this court claiming trial errors.
The defendant’s first point on the appeal is that the trial court abused its discretion in denying the defendant’s motion to allow the jury to view the door to the towel room at the YMCA. It was the defendant’s position that the state’s witnesses could not adequately see through the crack in the door and the jury should be able to see for themselves if the witnesses’ testimony was credible. The witnesses’ estimates of the width of the crack varied from one-fourth inch to one inch. The trial court after hearing all of the testimony denied the motion for a view of the scene, concluding that the jury would not be substantially aided by a view in arriving at their decision. It should be noted that the defendant made no attempt to produce photographs of the door, nor was any testimony offered at the trial to establish that the door was in the same condition as it was on the date when the alleged crime was committed. From the entire record we have concluded that the granting or denial of a jury view of the scene rested within the sound discretion of the court. We cannot say that the trial court abused its discretion in denying the motion.
The defendant’s second point is that the trial court erred in refusing the defendant’s offer of proof and in denying a mistrial when a defense witness, Sergeant Pruett, was unable to appear at the trial because he was hospitalized following surgery. Rather than asking for a continuance prior to the beginning of the trial, the defendant’s counsel requested an opportunity to make an offer of proof to the effect that, if called as a witness, Sergeant Pruett would testify that the defendant willingly gave him a statement and that the defendant consistently denied any wrongdoing. The trial court suggested that the defendant Wells, who had already testified, be recalled to the stand and testify as to giving a statement and as to his consistent denials to the police. The prosecutor stated that he would not introduce evidence to deny that testimony. At that point the defendant’s counsel moved for a mistrial. We cannot say that the trial court abused its discretion under the circumstances. The defendant was allowed to testify as to his denial of guilt and such testimony was not rebutted by the state. Under the circumstances we cannot say that the trial court committed error in refusing to declare a mistrial because of the nonavailability of Sergeant Pruett.
The defendant’s final two points concern the instruction given by the court relative to the elements of the crime of indecent liberties with a child and the refusal of the trial court to give certain requested instructions proposed by the defendant. The defendant submitted a requested instruction in the following language:
“1. That the defendant fondled or touched the sexual organs of John Satchell in a lewd manner with the intent to arouse or to satisfy the sexual desires of the defendant;
“2. That John Satchell was then a person under the age of 16 years; and
“3. That this act occurred on or about the 20th day of May, 1976, in Wyandotte County, Kansas.”
In addition, the defendant submitted another requested instruction as follows:
“You cannot convict a person merely for his thoughts unless he performs some physical act to carry those thoughts into action. You must determine for yourselves whether the act is one which necessarily and in all cases connotes a lustful, indecent and obscene state of mind.
“If there is any other possible explanation for a touching than to arouse sexual desire, then you must find the defendant not guilty.”
The instruction actually given by the court substituted the word “person” for the words “sexual organs” in the first paragraph and was in the following language:
“INSTRUCTION NO. 1 OF THE COURT
“The defendant is charged in the Information with the crime of indecent liberties with a child contrary to and in violation of K.S.A. 21-3503. The defendant pleads not guilty.
“The elements of the crime of indecent liberties with a child insofar as this case is concerned are as follows:
“1. That the defendant fondled or touched the person of John Paul Satchell, in a lewd manner, with the intent to arouse or to satisfy the sexual desires of either or both;
“2. That John Paul Satchell was then a child under the age of 16 years; and
“3. That this act occurred on or about the 20th day of May 1976, in Wyandotte County, Kansas.
“To establish this charge each and every element must be proved, beyond a reasonable doubt.” (Emphasis supplied.)
The instruction as given is essentially that recommended in the 1975 Supplement to PIK Criminal 57.05.
The defendant’s position on the appeal is that the' statute, K.S.A. 1975 Supp. 21-3503, requires the state to prove as an element of the crime of indecent liberties with a child that there was a lewd fondling or touching of the sexual organs of the child or the offender. In our judgment the defendant’s contention is not correct. The Code of Criminal Procedure which became effective on July 1, 1970, defined indecent liberties with a child in K.S.A. 21-3503(1) as follows:
“(1) Indecent liberties with a child is engaging in either of the following acts with a child under the age of sixteen (16) years who is not the spouse of the offender:
“(a) The act of sexual intercourse;
“(h) Any fondling or touching of the person of either the child or the offender done or submitted to with the intent to arouse or to satisfy the sexual desires of either the child or the offender or both.”
This statute was declared unconstitutionally vague in State v. Conley, 216 Kan. 66, 531 P.2d 36, because of the combined indefiniteness as to the type of contact and the part of the body involved as set out in the statute.
Following Conley the 1975 legislature amended the statute to its present form by adding the word “lewd” as a modifier of “fondling or touching.” In amending the statute in 1975 the legislature did not see fit to substitute the words “sex organs” in place of “person” so as to make a lewd fondling or touching of the sex organs of either the child or the offender a necessary element of the crime. It is sufficient under the 1975 statute for the state to establish that the defendant committed the act of a lewd fondling or touching of the person of the child or the offender, done or submitted to with the intent.to arouse or to satisfy the sexual desires of either the child or the offender or both. In this case the trial court properly instructed the jury as to the statutory elements of the crime charged.
The defendant in his brief concedes that the word “lewd” as a modifier has a well-understood meaning and that the terms “lewd fondling” or “lewd touching” imply a type of activity exhibiting a depraved or lascivious intent. As pointed out in the majority opinion in Conley, child molestation statutes in many states use such terms as “lascivious,” “sexually molest,” “indecent,” or “lewd” as a modifier of fondling or touching. The word “lewd” has an unmistakable meaning which is very well and generally understood. The common definition of lewd may be found in Webster’s Third New International Dictionary (p. 1301) where it is defined as sexually unchaste or licentious; suggestive of or tending to moral looseness; inciting to sensual desire or imagination; indecent, obscene, salacious. Similar definitions may be found in practically any standard dictionary.
Obviously K.S.A. 1975 Supp. 21-3503 is aimed toward the protection of the moral integrity of the child. In our judgment the words in the statute, “lewd fondling or touching” of the person of either the child or the offender, should be construed to require the state to prove a fondling or touching in a manner which tends to undermine the morals of the child, which is so clearly offensive as to outrage the moral senses of a reasonable person, and which is done with the specific intent to arouse or to satisfy the sexual desires of either the child or the offender or both. Such a construction of the word “lewd” might well be given by a trial court when requested by either the state or the defendant in a criminal case involving this offense. In the present case counsel for the defendant did not request the court to define the words “lewd fondling or touching” and hence we find no error in the instruction given by the court which correctly defined the elements of the crime.
We find no error in the failure of the trial court to give the other requested instruction submitted by the defendant which is set forth above. The trial court instructed the jury that to establish this charge each and every element of the crime must be proved beyond a reasonable doubt. The requested instruction was argumentative in nature and was properly left for the defense counsel in his summation. On the basis of the record we cannot say that the trial court erred in failing to submit to the jury the instructions requested by the defendant.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Holmes, J.:
This is a direct appeal by defendant-appellant from conviction by a jury of three counts of aggravated robbery (K.S.A. 21-3427), five counts of kidnapping (K.S.A. 21-3420[b]), and one count of aggravated weapons violation (K.S.A. 21-4202).
On February 28, 1976, three black males robbed the Mr. Steak restaurant in Lawrence, Kansas, and the family of four that was eating in the otherwise empty restaurant. One of the men forced the cook to open the unlocked safe, another took the billfold of the man who was dining with his family and the third man took the contents of the cash register from the waitress on duty. While this was going on, the man obtaining the contents of the safe discharged his shotgun over the cook’s head. The robbery being substantially complete, the four customers and the waitress were forced into a walk-in refrigerator, told to remain there and the door was then slammed shut. The refrigerator was not locked. After five to ten minutes, the occupants of the refrigerator ventured out and found the cook calling the police. The three robbers had departed.
After an automobile chase, two of the men were arrested in Lawrence. The defendant was not in their car but was later taken into custody in Topeka.
Defendant testified in his own behalf and presented testimony from two witnesses in an attempt to establish his defense of alibi. Although the identity of the defendant as a participant in the robbery was vigorously contested, the jury returned a verdict of guilty.
Defendant asserts three points on appeal:
(1) A new trial should be granted because of the failure of the trial court to embody the rule of State v. Buggs, 219 Kan. 203, 547 P.2d 720 (1976), in its instructions on the five counts of kidnapping.
(2) Defendant’s retained counsel was ineffective and inadequate.
(3) The county attorney in his argument to the jury made statements that resulted in constitutional error or in prejudice to the extent the defendant was denied a fair trial.
In defendant’s first point on appeal he challenges the adequacy of the instructions given to the jury on the five kidnapping charges. This point might be readily disposed of on the basis there was no objection to the instructions as given and no additional or different instructions requested. However, in view of defendant’s second point, we do not choose to decide this issue on that ground alone.
The trial court instructed on each of the kidnapping charges as follows:
“To establish the charge of kidnapping as charged in Count_, each of the following claims must be proved:
1. That the defendant took or confined (name of victim) by force or threat;
2. That it was done with intent to hold such person to facilitate flight;
3. That this act occurred on or about the 28th day of February, 1976, in Douglas County, Kansas.”
The instruction given follows the wording of the statute (K.S.A. 21-3420 [b]) and is taken from PIK Criminal 56.24. Defendant asserts this instruction is now inadequate in light of State v. Buggs, supra, which speaks to certain criteria to be used in determining the existence of a kidnapping. This court said in Buggs:
“We therefore hold that if a taking or confinement is alleged to have been done to facilitate the commission of another crime, to be kidnapping the resulting movement or confinement:
(a) Must not be slight, inconsequential and merely incidental to the other crime;
(b) Must not be of the kind inherent in the nature of the other crime; and
(c) Must have some significance independent of the other crime in that it makes the other crime substantially easier of commission or substantially lessens the risk of detection.” State v. Buggs, supra, at 216.
As the four customers and the waitress were ordered into an unlocked refrigerator, defendant contends that under Buggs there could be no kidnapping or that the jury should have been given additional guidelines to advise them of the criteria set forth in Buggs.
In a recent case where the victims and occupants of a store robbery were taken to the rear of the store and bound with tape this court applied the Buggs criteria and held:
“Moving the victims to places where they could not see or be seen, and binding them so that they could not follow the robbers or give alarm, were actions taken to facilitate escape and avoid detection. Under the principles set forth in Buggs, we hold that kidnapping was established by the evidence. . . .” State v. Brooks, 222 Kan. 432, 435, 565 P.2d 241 (1977).
The robberies in this case were essentially complete when the occupants of the restaurant were forced into the refrigerator. There was testimony from the waitress and customers that they were fearful for their lives; they had heard the blast from the shotgun discharged earlier; they observed the weapons of the robbers; and they were afraid to emerge from their confinement until they were sure the robbers had departed and it would be safe to do so. We find no error in the instructions as given.
Defendant’s second point on appeal questions the effectiveness and adequacy of his retained counsel. In his argument that trial counsel was wholly ineffective and inadequate appellant has combed the record to point out fragmentary segments which he now claims to be trial errors of counsel. Foremost is the continuing argument on counsel’s failure to object to the kidnapping instruction and failure to insist on additional instructions based on Buggs.
At the end of the trial and in the hearing on instructions, defendant’s counsel moved and argued for discharge of the defendant on the kidnapping counts on the basis the evidence was insufficient to uphold those charges. His motion was overruled. Counsel again raised the point in his final argument and again at the hearing on a motion for a new trial. We find no lack of diligence or competence in this respect.
The standards for effective assistance of counsel have been clearly and repeatedly set out, and the burden rests squarely on the defendant to prove that his attorney provided counsel that was wholly ineffective and inadequate. This court has recently defined defendant’s burden of proof and the presumption of competence he must overcome:
“Whenever the court in good faith appoints or accepts the appearance of a member of the bar in good standing to represent a defendant, the presumption is that such counsel is competent. To constitute a denial of an accused’s constitutional rights it must clearly appear that the representation of accused was wholly ineffective and inadequate. The burden is on the petitioner to show representation by his attorney was so incompetent that the total effect was that of complete absence of counsel.” Lee v. State, 220 Kan. 221, 222, 552 P.2d 626 (1976).
The competence of an attorney must be gauged by the totality of the circumstances surrounding the defense, and not by “fragmentary segments thereof in isolation.” Turner v. State, 208 Kan. 865, 867-868, 494 P.2d 1130 (1972).
Counsel admittedly was handling his first criminal jury trial and a careful examination of the record discloses some matters which another attorney might question or handle in a different manner; however, when gauged by a totality of circumstances we have no hesitation in finding counsel was not wholly ineffective and inadequate. See Trotter v. State, 218 Kan. 266, 543 P.2d 1023 (1975); Peterson v. State, 215 Kan. 253, 524 P.2d 740 (1974); Reid v. State, 213 Kan. 298, 515 P.2d 1040 (1973).
The county attorney early in his closing arguments stated:
“The State has had to go through a series of chain of custody, and this is fairly important, there are reasons for all these things. Each charge the State must prove or that charge wouldn’t even get to the jury, and for that reason I thank you for your attention.”
Defendant asserts that the statement in effect told the jury that the judge felt the state had proved its case. Defendant complains of no other portions of the closing argument. There was no objection to the argument.
. . . The rule is well settled that reversible error cannot be predicated upon a complaint of misconduct of counsel in closing argument where no objection is lodged.” State v. Watkins, 219 Kan. 81, 87-88, 547 P.2d 810.
“Misconduct of the county attorney in closing argument will not always require the granting of a new trial unless such misconduct has resulted in prejudice to the extent that the accused has been denied a fair trial.” State v. Gauger, 200 Kan. 515, Syl. 3, 438 P.2d 455.
While the remark of the county attorney was improper, a careful review of the entire record fails to disclose a denial of a fair trial or prejudicial error in any of the points raised by counsel.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Miller, J.:
Randall L. Campbell appeals from an order of the Reno District Court, denying his motion for relief under K.S.A. 60-1507. Stated simply, his complaint is that at the time of sentencing, the Reno District Court erred in failing to give him credit for time he spent in the Barton County jail. The facts are as follows:
August 29, 1975 Campbell pled guilty in the Reno District Court to a charge of second possession of marihuana, Case No. 9844. Pursuant to K.S.A. 21-4614, the sentencing judge fixed August 29, 1975, as the date on which the sentence imposed was to begin. Campbell was placed on probation.
October 6, 1975 A new complaint was filed in Reno County, Case No. 9957, charging Campbell with burglary and felony theft. A warrant was issued.
October 7, 1975 Barton County authorities arrested Campbell on drug charges arising in that county. Campbell was not released, and remained in custody in Barton County until December 19, 1975.
December 19, 1975 Campbell pled guilty to five felony counts in Barton District Court. He was sentenced to concurrent two-year terms, and, according to statements of counsel made in oral argument before us, the sentencing judge fixed October 7, 1975, as the date on which the sentence was to begin. Campbell was then turned over to Reno County authorities.
December 29, 1975 Campbell pled guilty in Reno District Court, Case No. 9957, to burglary and felony theft. After the allocution, Campbell was sentenced to concurrent terms of two to ten years, these sentences to be served concurrently with “any other sentence he is now serving.” The sentencing judge fixed December 19, 1975, as the date on which those sentences were to begin. The judge also revoked the probation granted in Case No. 9844.
Campbell claims that when he was arrested in Barton County, the sheriff either “had or had knowledge of” the outstanding Reno County warrant. He contends that under K.S.A. 21-4614, he is entitled to credit on the Reno County sentences, imposed on December 29, 1975, for all time he served in the Barton County jail.
The statute reads as follows:
K.S.A. 21-4614. “In any criminal action in which the defendant is convicted upon a plea of guilty or trial by court or jury, the judge, if he sentences the defendant to confinement, shall direct that for the purpose of computing defendant’s sentence and his parole eligibility and conditional release dates thereunder, that such sentence is to be computed from a date, to be specifically designated by the court in the journal entry of conviction, such date shall be established to reflect and shall be computed as an allowance for the time which the defendant has spent in jail pending the disposition of the defendant’s case. In recording the commencing date of such sentence the date as specifically set forth by the court in the journal entry of conviction shall be used as the date of sentence and all good time allowances as are authorized by the Kansas adult authority are to be allowed on such sentence from such date as though the defendant were actually incarcerated in any of the institutions of the state correctional system. Such jail time credit is not to be considered to reduce the minimum or maximum terms of confinement as are authorized by law for the offense of which the defendant has been convicted.”
The language which is important here is the phrase, “. . . the time which the defendant has spent in jail pending the disposition of the defendant’s case.” In State v. Mackley, 220 Kan. 518, 552 P.2d 628, we held that the physical place of confinement was not important, and that under the statute a defendant was entitled to credit not only for time spent in the jail of the county where the charge was pending, but also for time spent in hospitals where he underwent court-ordered mental examinations. The rationale of Mackley would require credit for jail time regardless of the location of the place of confinement, when the custody was a direct result of the pending charges.
The Kansas Court of Appeals has twice considered the import of this statute. In State v. Thorn, 1 Kan. App. 2d 460, 570 P.2d 1100, the court held that the defendant was entitled to credit for time spent in custody under order of the juvenile court while awaiting an “amenability” hearing, and for time later spent in jail in another jurisdiction while awaiting return to Kansas for trial. The court noted, however, that defendant was at all times being held solely upon the charge for which he was sentenced. In Thom, the court also held that probation, later revoked, did not deprive a defendant of credit for time spent in custody prior to the grant of probation. At pages 462-463, the court said:
“The 1973 amendment making the jail time credit provisions mandatory rather than discretionary discloses legislative intent to give criminal defendants sentenced to incarceration credit for all time spent in custody on the charge for which they are sentenced. . . .”
In a habeas action, Brodie v. State, 1 Kan. App. 2d 540, 571 P.2d 53, an escaped Kansas prisoner sought credit on his original sentence for second-degree murder, and on a subsequent sentence for escape, for the time he was in custody in the state of California. The Court of Appeals held that he was not entitled to credit on his original sentence, since his California custody was based upon separate and distinct charges; but the court remanded the case to the district court for a determination of whether any portion of petitioner’s California custody was based solely on the escape charge then pending against him in Kansas, holding that he would be entitled to credit (1) if he was held at any time in California solely on the Kansas charge, (2) if he was not released on bond, and (3) if he was prosecuted and sentenced on the escape charge following his return to this jurisdiction.
We agree with the Court of Appeals’ interpretation of K.S.A. 21-4614, quoted above. Under that section a defendant should be given credit by the sentencing court for each day spent in jail solely on account of the pending charge, for which the prisoner is later sentenced. But the record before us does not show that Campbell was held in Barton County on the burglary and theft charges. According to his motion, the record, and the brief, he was arrested in Barton County on drug charges. He was held on those charges until they were disposed of on December 19, 1975, and he was credited for jail time in the sentence pronounced on that date. Though burglary and theft charges, and a charge of violation of probation, were pending against him in Reno County, he was not held in custody in Barton County solely or as a direct result of those charges.
We have examined the various arguments advanced by defendant, but do not find them persuasive. He argues, in effect, that had the Barton County charges been dismissed, the time he spent in the Barton County jail would be “dead time.” That is not the situation before us. Campbell has been convicted and sentenced on the Barton County charges, and he has received credit on those sentences for all accumulated jail time.
Defendant’s failure to post bond in Barton County did not affect the overall length of his sentences. He will spend a few days less in the penitentiary because of the time spent in jail, but the total time he will be in custody is not affected since he received full credit for the jail time.
The cases cited and relied upon by defendant are readily distinguishable because they involve “dead time,” earlier sentences served or partially served as a result of convictions later vacated., time spent awaiting trial on charges which were dismissed, and the like. We have carefully considered the record before us and hold that Campbell has not been deprived of any constitutional or statutory rights, and that the record conclusively shows that he is entitled to no relief. Campbell is presently serving five or six sentences concurrently. There is no way in which he could be required to serve more than the maximum term for any sentence imposed.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Schroeder, C.J.:
This is a review of the judgment of the Court of Appeals entered in State v. Arnold, 1 Kan. App. 2d 642, 573 P.2d 1087.
The sole issue raised in this appeal is whether the trial court erred in refusing to instruct on the offense of battery as a lesser included offense of attempted rape. •
The facts are fully stated in the Court of Appeals opinion written by Chief Judge Harman. The Court of Appeals held: (1) there was sufficient evidence on intent to rape; (2) defendant’s trousers were properly admitted in evidence; (3) an instruction on circumstantial evidence was not necessary; and (4) the trial court erred in not submitting an instruction on the lesser offense of battery. We will discuss here only those facts necessary for a determination of the issue appealed to this court.
The information charged the following:
“. . . VERLIE ARNOLD, JR., did then and there unlawfully, wilfully toward the perpetration of the crime of Rape, as defined by K.S.A. 21-3502, commit the following overt act, to-wit: knocked [the victim] to the ground and got on top of her, with the intention to commit said crime, and the said VERLIE ARNOLD, JR. failed in the perpretation [sic] thereof and was prevented and intercepted in executing said crime by a Security Officer of Wichita State University; . .
The Court of Appeals held that the above information charged a battery and that the evidence at trial revealed that offense so the trial court should have instructed on battery under K.S.A. 21-3107(2)(d). We disagree.
K.S.A. 21-3107(2) provides:
“Upon prosecution for a crime, the defendant may be convicted of either the crime charged or an included crime, but not both. An included crime may be any of the following: (a) A lesser degree of the same crime;
“(b) An attempt to commit the crime charged;
“(c) An attempt to commit a lesser degree of the crime charged; or
“(d) A crime necessarily proved if the crime charged were proved.”
Lesser included offenses fall into three categories under our statute. The first is the offense which is merely a lower degree of the offense charged or subparagraph (a) under the statute. The second category is the attempt as a lesser included offense or subparagraphs (b) and (c) under the statute. The third category is the offense which is necessarily committed by the defendant in perpetrating the crime charged or subparagraph (d) under the statute. Under this section it is impossible to commit the greater offense without first having committed the lesser offense. The offense must not require some additional element which is not needed to constitute the greater offense. In other words, there must be “identity of elements.” (See Note, The Doctrine of Lesser Included Offenses in Kansas, 15 Washburn L.J. 40, 41-45 [1976].)
Our court has consistently construed subparagraph (d) to mean a lesser included offense must not require proof of any element not necessary in the greater crime charged. (See State v. Daniels, 223 Kan. 266, 573 P.2d 607; and State v. Bailey, 223 Kan. 178, 573 P.2d 590.) One of the elements of battery requires “touching or application of force to the person of another, when done in a rude, insolent or angry manner.” There is no such requirement in the elements necessary to establish the crime of attempted rape.
The Court of Appeals, however, held an instruction on a lesser crime under subparagraph (d) is appropriate where it is factually charged in the information and reasonably proven by the evidence. In so doing, it misconstrued subparagraph (d). The factually related offense is the fourth category recognized by some courts as a lesser included offense. The lesser offense is not always included in the greater; its inclusion depends on the allegations in the accusatory pleading. Two Kansas cases, State v. Gibler, 182 Kan. 578, 322 P.2d 829 and State v. Way, 76 Kan. 928, 93 Pac. 159, fall under this category and are followed by the Court of Appeals in its decision.
As we have stated, under present Kansas law under subparagraph (d) all elements necessary to prove the lesser offense must be present and be required to establish the elements of the greater offense charged. This necessarily excludes the factually related lesser offense. Accordingly, the Court of Appeals erred in holding under K.S.A. 21-3107(2)(d) a defendant may be convicted of a lesser crime, not one of a lesser degree of the principal crime, if it is one factually charged in the information and reasonably proven by the evidence.
The judgment of the Court of Appeals is reversed and the judgment of the trial court is affirmed. | [
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