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Per Curiam:
Appeal sustained.
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The opinion of the court was delivered by
Kaul, J.:
In a trial to a jury, on two counts, defendant-appellant, Robert Joseph Moore, was convicted on count one of the theft of fifty sheets of plywood, valued at more than $50.00 (K. S. A. 21-3701), and on count two of unlawful deprivation of property consisting of a 1975 Ford pickup truck with camper shell, with the intent to deprive the owner of the temporary use thereof (K. S. A. 21-3705).
The main issue on appeal challenges the trial court’s refusal to instruct the jury on what defendant contends is a lesser included offense of the felony theft count — to wit: the unlawful temporary deprivation of the plywood, but not with the intent of depriving the owner permanently of the possession, use, or benefit of the property.
The state’s evidence disclosed that on the night of January 12, 1975, Lawrence Kellerman, Chief of Police of Garnett, began surveillance of the Garnett Church Furniture and Manufacturing Company. Defendant worked as a night watchman for the company and was scheduled to begin his eight-hour watch at midnight on the date mentioned.
Chief Kellerman testified that about 11:55 p. m., on the night in question, he saw the defendant park his car in front of the factory and go inside. He had previously observed a 1975 Ford pickup, off-white in color, with camper shell closed, also parked in front of the factory. The Ford pickup was later identified as a Company Owned vehicle.
Wayne Clinesmith, a laborer and night watchman on the 4:00 p. m. to the midnight shift, was the man defendant was scheduled to replace on the night in question. He testified that when he arrived at work at 4:00 p.m. he observed the light-colored pickup truck parked by the factory. Clinesmith corroborated Kellerman’s testimony that the tailgate and camper shell were closed on the pickup.
Kellermán went on to testify that soon after defendant’s arrival he saw Clinesmith and defendant emerge from the factory together. After Clinesmith entered his car and drove off, defendant opened the right rear door of his own car and a man, later identified as Edward Gunn, got out.
Gunn and the defendant went inside the building for a short time and then came back outside and got into the furniture company’s Ford pickup. The pickup was driven to the back of the factory and reappeared about five minutes later at the front of the building with the endgate and camper door open. After backing the pickup up to the factory door, on the front of the building, defendant and Gunn began unloading items from the pickup and carrying them into the factory. The two men then got back into the cab and drove the pickup around to the rear of the building.
Kellerman thereupon changed his vantage point to the rear of the factory building where he observed the same pickup truck backed up to the loading dock. From his position he saw defendant and Gunn loading sheets of plywood into the pickup truck through a door which opened onto the loading dock.
After a few minutes Kellerman returned to his original surveillance point in front of the factory. He saw the truck reappear from behind the factory, fully loaded with sheets of plywood which extended beyond the endgate of the pickup. Gunn was at the wheel of the truck and the endgate and camper door were open. Defendant then came out of the front door of the factory, got into the driver’s seat of the pickup, and he and Gunn drove away from the factory.
The pickup truck was stopped by the city police three or four miles east of Garnett on orders of Chief Kellerman. Thereupon, defendant and Gunn were arrested, taken back to Garnett, and placed in jail.
Defendant testified in his own defense. His version of the facts differed substantially from that of the state’s witnesses. He admitted the unauthorized taking of the pickup truck, but denied loading the plywood on the truck. According to defendant the plywood was already on the truck when he arrived at the factory. Defendant also denied being accompanied by anyone when he drove to work that evening.
Defendant further testified an acquaintance of his, Edward Gunn, came to the factory shortly after midnight and asked defendant to drive him to the Gunn residence in Parker, a neighboring town ten or twelve miles northeast of Garnett. Defendant admitted he had no authority to use the pickup truck on this occasion, but took it anyway because his own car was low on gas and in bad mechanical condition. Defendant insisted, when arrested, he was merely taking Gunn home in the company pickup truck and that he had no intention of taking the plywood permanently from the furniture factory.
Under this set of facts, counsel for defendant requested an instruction on the offense of unlawful exercise of control over the plywood without the intent permanently to deprive the owner of the use or benefit thereof. The request was denied and the ruling is specified as error in defendant’s first two points on appeal.
Defendant supports his position with the argument that he was entitled to have the theory of his case presented to the jury under appropriate instructions, citing State v. Severns, 158 Kan. 453, 148 P. 2d 488; and State v. Barnes, 164 Kan. 424, 190 P. 2d 193. As an abstract proposition defendant’s premise cannot be faulted. The rule involved has long been recognized by this court. In the recent case of State v. Boyd, 216 Kan. 373, 532 P. 2d 1064, we held:
“The accused has the right to have his theory of the case presented to the jury under appropriate instructions where there is support in the evidence therefor. This is true even though the evidence may be weak and not conclusive and the testimony of the defendant alone, if it tends to show a lesser degree of crime.” (Syl. 1.)
However, with respect to instructing on a lesser included offense, the rule is qualified in that it becomes applicable only where it is clearly called for by the evidence and where the jury might reasonably have convicted the accused of a lesser crime had it been instructed with regard thereto. (State v. Schoenberger, 216 Kan. 464, 532 P. 2d 1085; State v. Pyle, 216 Kan. 423, 532 P. 2d 1309; and 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.)
In the instant case the defendant’s entire defense was completely exculpatory as to the plywood. He testified the plywood was already on the truck; that he had not put it there; and that its presence was only incidental to his unlawful taking of the truck which he admitted. Thus, the evidence furnished no rational basis for a conviction of temporary deprivation of the plywood. Under such evidence, the requested instruction was not only unnecessary, but would have been duplicitous. (See, e. g., State v. Schoenberger, supra; and State v. Masqua, supra, and cases cited therein.)
The temporary taking of the pickup and the temporary taking of the plywood, as testified to by defendant, if believed, would have constituted mere parts of a single indivisible misdemeanor stemming from a single incriminating intent. The temporary taking of the truck and the plywood could not have been separated for prosecution as to each since, under defendant’s testimony there was but one offense — the taking of the truck. (State v. Green, 213 Kan. 547, 516 P. 2d 926.) Defendant was either guilty of the theft of the plywood because he had the requisite intent or he was not guilty of any crime with respect to the plywood.
The sole issue before the jury on the plywood felony theft count was whether to believe defendant’s testimony or that of Chief Kellerman. The jury chose to believe Kellerman’s testimony from which the requisite intent on the part of defendant could readily be inferred.
In his final point on appeal defendant contends the trial court erred in sentencing him under K. S. A. 21-4504. Defendant’s argument on this point is that there was insufficient admissible evidence to identify him with the exhibits of other convictions used to enhance the sentence. The defendant was identified as the person convicted of the prior crimes by John J. Cahill, a United States Probation and Parole Officer. Defendant contends that much of Mr. Cahill’s testimony was hearsay. Defendant lodged an objection on that ground at the sentencing stage of the trial.
Although Mr. Cahill was not personally present in any of the three courts at the time defendant was previously convicted, he testified that he was personally acquainted with defendant in conjunction with his official duties as a parole officer. He indicated the defendant was the Robert Joseph Moore referred to in the certified copies of the journal entries of prior convictions. A Missouri Department of Corrections fingerprint chart in defendant’s name was also introduced in conjunction with the documents showing prior convictions.
Mr. Cahill properly identified defendant as the person referred to in the documents mentioned and the documents themselves were properly admitted to prove the convictions under K. S. A. 60-460 (o) as an exception to the hearsay rule. Moreover, the identity of the names of all of the exhibits was sufficient to establish defendant’s identity as the person convicted thereby in the absence of rebuttal testimony. In disposing of a similar question in State v. Cippola, 202 Kan. 624, 451 P. 2d 199, cert. den., 396 U. S. 967, 24 L. Ed. 2d 432, 90 S. Ct. 446, we said:
“. . . [W]e hold that proof beyond the identity of the name therein was not a necessary part of the state’s foundation for their admission in evidence, there being an absence of rebuttal evidence or a denial of identity. . . .” (p. 629.)
We find no error shown and the conviction and sentence are affirmed.
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The opinion of the court was delivered by
Harman, C.:
This is a negligence action against a hospital for damages allegedly incurred when a hospital bed malfunctioned and ruptured a patient’s spleen. Jury trial resulted in a verdict for the hospital. The patient’s appeal involves the correctness of an instruction on circumstantial evidence and the refusal to instruct on res ipsa loquitur. A third party appeal, if reached, involves the propriety of summary judgment dismissing from the proceeding a third party defendant which manufactured a component part of the bed.
The evidence revealed the following. Plaintiff-appellant William F. Arterbum has a long history of stomach ulcers. Beginning in March, 1959, and up to the incident in question he was hospitalized ten times for treatment of his ulcers, with surgery on one occasion. On February 4, 1970, he was admitted to the hospital operated by defendant-appellant St. Joseph Hospital and Rehabilitation Center. On February 12, 1970, Dr. William G. Cauble performed a vagotomy and an antrectomy on appellant in an effort to relieve his ulcerous condition. A vagotomy entails severing the vagus nerve which controls stomach acid production and an antrectomy involves removal of an ulcerated portion of a stomach. Both operations were in the upper abdominal area, over the location of the spleen. During the surgery Dr. Cauble encountered marked adhesions and scar tissue in appellant’s abdominal cavity, stemming from his prior surgery. The adhesions were above and around the spleen. They were fibrous, bandlike structures which can adhere to parts of the internal anatomy connecting organs to other parts of the abdominal cavity. Adhesions vary in strength but are of such tensile nature they can transmit motion such as a pull.
During the four days following his surgery appellant progressed normally and became ambulatory. While hospitalized appellant was placed in a motorized, electrically operated hospital bed owned and maintained by appellee. Movement of the bed was activated by a push button so that it raised and lowered between a horizontal and sitting position for its occupant, bending at the hips. In the evening of February 16, 1970, appellant was raising the bed when the head of the bed apparently jerked and fell a short distance. Appellant could not determine just how far the bed fell back. At one point he testified it fell twelve to eighteen inches but at another time he stated it fell only one or two inches — he finally concluded he really didn’t know how far it fell but in any event, as the bed fell, he tensed his muscles and attempted to brace his body so that he would not fall with the bed. Appellant reported the incident to a charge nurse who immediately came to his room. The nurse found the bed in an upright or sitting position with appellant sitting on the right hand side of the bed. She checked the operation of the bed, fully raising and lowering it, and found nothing wrong.
The following morning, February 17th, appellant complained of pains in his stomach. Late that evening his condition deteriorated and Dr. Cauble performed exploratory surgery. He determined appellant’s spleen had ruptured and removed it. During the surgery he found the spleen markedly attached to the diaphragm, pancreas, stomach and colon.
Experts were produced by both sides in an effort to establish causation of the splenic rupture. Dr. Cauble was of opinion the fall of the head of the bed, however little the distance, could have caused it and this was the most probable cause. He further testified he took precautions in his abdominal surgery to protect the spleen; he found no definite signs of injury to the spleen although he did see old blood clots in that area as well as fresh blood when he removed the spleen; that injury to the spleen is one of the most common hazards in performing a vagotomy and there is a high incidence of splenic injury in a vagotomy; it was possible the vagotomy had injured appellant’s spleen — he could not be definite about his own role; it was also possible appellant had unintentionally injured his spleen.
Other expert medical testimony gave these possible causes for splenic rupture: (1) Spontaneous rupture with no apparent explanation; (2) disease; (3) external trauma; and (4) surgical trauma. One expert medical witness produced by appellee was of opinion the cause of appellant’s rupture was the upper abdominal surgery performed by Dr. Cauble. He testified that in all probability a pull on one of the adhesions in the area loosened the spleen’s capsule, causing the spleen to bleed internally and after enough pressure was built up inside it, to rupture; that he had never heard of the straining of abdominal muscles causing a spleen to rupture and such tensing of muscles or a fall of an inch or two would not be major trauma. This witness, who was a board certified general surgeon, further testified that damage to the spleen is common in two or three percent of upper abdominal surgery cases. Another medical witness testified that a one to two inch fall and tensing of muscles would not cause a splenic rupture. Still another, a pathologist, examined a slide of splenic tissue taken from appellant after the operation and found a blood clot believed to be between twelve and forty-eight hours old.
A mechanical engineer examined the bed occupied by appellant, except for the screw tube assembly or “Roton” which was not the same, and he testified that because of the bed’s construction it was not possible for the bed to fall precipitously. He explained the bed’s operation and how the patient’s upper and lower part of the body and the corresponding parts of the bed were counterbalanced. He further testified as to the short distance a person’s spleen would move downward in a full fall of the bed.
The screw tube assembly or Roton is the mechanical heart of the bed and when activated causes the bed to rise and fall. Hospital personnel testified they would replace the Roton when a bed became noisy but they had never heard of a bed becoming jerky prior to this incident. After the incident, however, many of appellee’s beds were tested and many were found to have some jerkiness during movement. A new Roton was installed in appellant’s bed following the incident. Since these are sealed, prelubricated units which cannot be repaired, the particular Roton on appellant’s bed was discarded by hospital personnel without inspection.
Appellant first contends the trial court erred in giving, over his objection, instruction No. 5 respecting proof of a fact by circumstantial evidence. This instruction stated:
“In determining whether or not the plaintiff has met his burden of proof in this case, you are instructed that a fact is not proven by circumstances which are merely consistent with its existence. Circumstances relied upon to prove a fact must be of such a nature and so related one to the other than the only conclusion to be drawn therefrom is the fact sought to be established. Accordingly, if there are several possible explanations of an injury all equally consistent with the fact of the injury, but not all of which can be charged against the defendant, the jury cannot guess or speculate as to which explanation applies. In such a situation the verdict must be for the defendant.” (Emphasis supplied.)
Appellee first asserts we should not consider this point on appeal because appellant did not properly object to the instruction before it was given. The only objection was this:
“Mr. Levy: Plaintiff objects to giving Instruction No. 5 for a number of reasons. Number one, it talks about circumstantial evidence. If they are to be given this instruction, then I am entitled to the res ipsa loquitur instruction, and I think this instruction apples to cases when the plantiff has no direct or circumstantial evidence as to the cause of an injury. I think this instruction only applies when you have cases with multiple possible causes proven by a plaintiff, and I don’t think that is the case here.”
K. S. A. 60-251 (b) provides that no party may assign as error the giving or failure to give an instruction unless he objects thereto before the jury retires to consider its verdict stating distinctly the matter to which he objects and the grounds of his objection unless the instruction is clearly erroneous.
Appellant’s objection was in general terms. No reason was stated or ground furnished other than, if instruction No. 5 be given, it should be coupled with an instruction on res ipsa loquitur. This does not comply with the statute, the reason for which was stated in 3 Vernon’s K. S. A. Code of Civ. Proc., Sec. 2513 as follows:
"... a general objection is meaningless and cannot be used as a device to secure a subsequent reversal. The reason for condemning this- practice is that the court may well have obviated the error if its attention was directed at the proper time to the particular matter about which the party may subsequently complain on appeal.” (p. 250.)
The question remains whether the instruction was clearly erroneous and therefore assignable as error.
The definition of circumstantial evidence was stated in Casey v. Phillips Pipeline Co., 199 Kan. 538, 431 P. 2d 518:
“Circumstantial evidence in law is evidence that tends to prove a fact in issue by proving other events or circumstances which, according to common experience of mankind, are usually always attended by the fact in issue, and therefore affords a basis for a reasonable inference by the jury or court of the occurrence of the fact in issue. . . .” (Syl. para. 6.)
It is well settled that the proof of negligence and the fact of causation, like any other fact question, may be established by circumstantial evidence (American Family Mutual Ins. Co. v. Grim, 201 Kan. 340, 440 P. 2d 621).
The first sentence of the instruction is an accurate statement of the law in Kansas. A fact is not proven by circumstances which are merely consistent with its existence (Hendren v. Snyder, 143 Kan. 34, 41, 53 P. 2d 472). The remainder of the instruction, however, does not accurately reflect Kansas law. Circumstantial evidence, in a civil case, in order to support a verdict need not rise to that degree of certainty which will exclude every reasonable conclusion other than that reached by the jury. It suffices that such evidence affords a basis for a reasonable inference by the court or jury of the occurrence of the fact in issue, although some other inference equally reasonable might be drawn therefrom (American Family Mutual Ins. Co. v. Grim, supra, Syl. para. 1).
The application of these rules can be seen in a number of cases. In Railroad Co. v. Perry, 65 Kan. 792, 70 Pac. 876, it was held:
“The fact that soon after the passing of an engine a fire starts near a railway-track in an enclosed field covered at the time with a growth of highly inflammable vegetation, and travels before a high wind in a direction away from the track, is sufficient to warrant a jury in finding that the fire was caused by the operation of the railroad, without its appearing that the engine emitted sparks or live cinders or was put to special exertion, and without further proof excluding other possible origins.” (Syl. para. 1.)
In Railway Co. v. Wood, 66 Kan. 613, 72 Pac. 215, the plaintiff alighted from a train at night onto a depot platform which was not properly lighted or guarded by rails. She later fell from the platform, sustaining severe injuries. The railway company admitted it might have negligently maintained the platform but it asserted that other theories, such as the plaintiff’s contributory negligence, would be as consistent with the facts and would explain her injuries in such a way as to relieve them of liability. The company contended that “. . . where a party relies upon circumstantial evidence to prove his case, those circumstances must not only be such as reasonably to lead to the conclusion arrived at by the jury, but that such conclusion must be the only reasonable conclusion consistent with the evidence; that, where the evidence is purely circumstantial and is equally consistent with a theory acquitting the defendant of liability as with one making it liable, plaintiff cannot recover.” (p. 615.) This court disagreed, stating:
"Circumstantial evidence in a civil case, in order to be sufficient to sustain the verdict of a jury, need not rise to that degree of certainty which will exclude any and every other reasonable hypothesis. The jury are not infrequently called on to decide between two or more theories, and in doing so may exercise their own best judgment in accordance with their oath-bound consciences. This must necessarily be so, for it is the province of the jury and not of the judge to determine whether the evidence better supports this or that theory. . . . [p. 616]
"It is true, as announced in Railway Co. v. Rhoades, supra, that presumptions may not be based upon presumptions, and that it will not do to consider chance or circumstantial evidence having but a questionable or circumstantial basis of fact, but this is very far from announcing that an undisputed fact may not be used as a basis from which to draw a reasonable conclusion, even though some other and opposite conclusion equally reasonable might also be drawn; otherwise, we might have a condition where a question of fact could not be settled, because the circumstances upon which its settlement depended might point to two or more equally reasonable conclusions. As between two or more reasonable deductions from circumstantial evidence, the court is not at liberty to direct which one the jury shall adopt.” (p. 617.)
A more recent ease in this area is American Family Mutual Ins. Co. v. Grim, supra. There a group of boys entered a church during the late evening hours in search of soft drinks. While in the church they lit newspaper torches for light. They thought they had extinguished the torches completely before they left the church. The evidence showed that other boys were in the vicinity of the church later on the same evening, before a fire broke out which heavily damaged the structure. Also, the evidence showed it was possible a short circuit in the wiring to an attic light could have caused the fire. In upholding the right of the insurer to recover against the first group of boys, this court said:
“Defendant challenges the court’s finding that the fire was caused by the torches. The gist of his argument is that its finding is not supported by substantial, competent evidence, in that inferences different from that reached by the trial court might have been drawn from the evidence. Defendant points out that other boys were later seen in the vicinity of the church, and that the electric light in the east wing apparently had a short circuit in its wiring — all of which tended to show other possible causes of the fire which the trial court erroneously disregarded. The fallacy of defendant’s argument is that in order for circumstantial evidence to be sufficient to sustain a finding in a civil case, such evidence need not rise to that degree of certainty which will exclude any and every other reasonable conclusion. [Citations] It suffices that such evidence affords a basis for a reasonable inference by the court or jury of the occurrence of the fact in issue, although some other inference equally reasonable might be drawn therefrom." (Emphasis supplied.) (p. 343.)
Most recently, in Farmers Ins. Co. v. Smith, 219 Kan. 680, 549 P. 2d 1026, we said this:
“. . . It is, of course, settled law in this state that a cause of action may be proved by circumstantial evidence, and such evidence, in order to be sufficient to sustain a verdict of a jury, need not rise to that degree of certainty which will exclude any and every other reasonable conclusion. . . .” (pp. 688-689.)
Therefore when a number of possible causes are shown for the damage to a plaintiff in a civil case, some of which are attributable to the defendant, while others are not, the plaintiff must show by a preponderance of the evidence to the satisfaction of the jury, that the cause attributed to the defendant is more probable than that attributed to other persons or agencies. There must be a rational basis for concluding it is more probable than not that the defendant’s negligence caused the plaintiffs damage. It is not necessary for the plaintiff to eliminate all other possible causes of his injury in order to present a jury question (see Sternbock v. Consolidated Gas Utilities Corp., 151 Kan. 81, 98 P. 2d 162).
These well settled principles compel the conclusion that the challenged instruction was clearly erroneous. Appellee points out language used by this court in Bottjer v. Hammond, 200 Kan. 327, 436 P. 2d 882, which is close to the instruction, except in one crucial respect, as follows:
“. . . It is familiar law that negligence must be established by proof. Like any other fact it may be established by circumstantial evidence, but the circumstances relied upon must be of such a nature and so related one to the other that the only reasonable conclusion to be drawn therefrom is the theory sought to be established.” (Emphasis supplied.) (p. 329.)
It can scarcely be argued there is no appreciable difference between the words “the only conclusion” and the words “the only reasonable conclusion”. The inclusion of the word reasonable in the language above brings in the broad concept of probabilities and the fact the plaintiff must prove to the fact-finder s satisfaction that his theory of causation is more probable than any other shown by the evidence. Here, appellant had the burden of proving, by a preponderance of the evidence, that the rupture of his spleen was caused by the falling of the bed and the tensing of his abdominal muscles rather than surgical trauma or spontaneous rupture. Under the court’s instruction he was required to prove conclusively that the rupture was caused by the falling of the bed before he could recover. This error went to the heart of appellant’s case and substantially prejudiced his right to a fair trial.
Appellee further contends that even if the instruction was erroneous, the error was cured by considering the instructions as a whole. Our examination of the instructions does not lead us to this conclusion. The issue of causation was crucial in the case and in view of the explicit requirement of instruction No. 5 we cannot say its undue restrictiveness was cured by other instructions of a general nature.
Appellant asserts the trial court erroneously refused to instruct the jury on the doctrine of res ipsa loquitur. We think not. Essential to the application of the doctrine in any given case are three conditions. First, it must be shown that the thing or instrumentality causing the injury or damage must be within the exclusive control of the defendant. Second, the occurrence must be of such kind or nature as ordinarily does not occur in the absence of someone’s negligence. Third, the occurrence must not have been due to the contributory negligence of the plaintiff (Bias v. Montgomery Elevator Co., 216 Kan. 341, 343, 532 P. 2d 1053).
To meet the first condition of res ipsa loquitur the plaintiff must show two things: (1) The specific thing or instrumentality which actually caused his injury or damage, and (2) that the thing or instrumentality which caused his injury or damage was within the exclusive control of the defendant. Therefore, the doctrine is inapplicable where the thing or instrumentality which caused the injury or damage is unknown or cannot be shown. (Chandler v. Anchor Serum Co., 198 Kan. 571, 426 P. 2d 82).
In Travelers Ins. Co. v. Hulme, 168 Kan. 483, 213 P. 2d 645, this court commented:
“. . . The doctrine has no application to proximate cause — or perhaps we should say no application to the initial fact, or the fundamental or foundation fact which caused the injury or damage. The doctrine will permit an inference or presumption that the known act — or foundation fact — which produced the injury (proximate cause) was a negligent act, but it will not permit such an inference or presumption as to just what foundation fact did produce the injury — or, in other words, as to what act was the initial cause of the damage. Thus the doctrine cannot be applied where the thing which actually caused the injury or damage is unknown; but when it is known and disclosed and relied upon as the basis of the damage or injury, the application of the doctrine of res ipsa loquitur will infer negligence in the doing of the thing or in the commission of the act. . . .” (p. 486.)
The application of this distinction was illustrated in the recent case of Querry v. Montgomery Ward & Co., Inc., 217 Kan. 104, 535 P. 2d 928. There the plaintiff’s apartment was damaged by a fire. Evidence was produced at trial that the fire could have been caused by an allegedly defective electric blanket purchased from the defendant, by defective wiring in a wall socket, or from the remains of cigarette ashes. The trial court relied on a lack of evidence as to initial causation to sustain a motion for directed verdict against the plaintiff. In upholding the decision, this court summarized the line of cases which discuss the relationship between initial causation of damage or injury and the appliaction of res ipsa loquitur:
“In many of our cases we have pointed out that the doctrine of res ipsa loquitur is a rule of evidence that permits an inference that the known act or instrument which produced the injury was a negligent act or a defective instrument, but it does not permit a further inference as to what act or instrument produced the injury. . . . Ordinarily, the doctrine applies only in those cases where the instrumentality or thing causing the injury is under the exclusive control of defendant or defendants at the time of the injury and the surrounding circumstances are such as to leave no reasonable conclusion to be drawn therefrom other than that the occurrence in question happened because of the negligence of defendants. . . .” (pp. 108-109.)
A case similar to the one at bar is Tatro v. Lueken, 212 Kan. 606, 512 P. 2d 529. There the plaintiff underwent an abdominal hysterectomy. A few days after the surgery, she experienced a leakage of urine from the bladder into the vagina caused by a vesicovaginal fistula. The expert testimony was that the fistula could have been caused by (1) stitching the bladder and vagina together during surgery, (2) clamping the bladder and vagina together during surgery, or (3) an abscess which is a normal risk of the surgery. Either of the first two causes was traceable to a deviation from the standard of care by the surgeon during the operation, but he denied, he had either stitched or clamped the bladder and the vagina together. It was impossible to state definitely which of the three actually caused the fistula. Under those circumstances, this court held that the submission of an instruction on res ipsa loquitur to the jury would have been inappropriate. In Tatro we commented:
. . As we have often said, the rule of res ipsa loquitur is one of evidence, rather than of substantive law, and generally becomes applicable in a negligence action where thhre is no direct proof of negligence, but where circumstances are established so as to leave no conclusion other than that defendant be at fault.” (p. 611.)
The second component of the first element of res ipsa loquitur, exclusive control in the defendant, was discussed extensively in Bias v. Montgomery Elevator Co., supra, where the plaintiff sustained injuries when an elevator fell at a hospital. There was no doubt about the thing or instrumentality which caused his injuries —the fall of the elevator. The defendant was responsible for the maintenance of the elevator under an exclusive service contract. It had been manufactured and installed by the Otis Elevator Company in 1958. Neither the plaintiff nor the defendant could find anything mechanically wrong with the elevator which caused it to fall and no repairs were necessary in order to put it back into service after the accident. In discussing the requirement of exclusive control, this court noted:
“According to Prosser, Torts, 4th Ed., [sec.] 39, p. 211, in order to establish exclusive control it is not necessary for the plaintiff to eliminate all other possible causes of the accident. All that is required is that the plaintiff produce sufficient evidence from which a reasonable man could say that on the whole it was more likely than not there was negligence on the part of the defendant. If the evidence establishes that it was at least equally probable the negligence was that of another, the court should refuse to submit to the jury the negligence of the defendant on the theory of res ipsa loquitur. This rule was recognized in Stroud v. Sinclair Refining Co., 144 Kan. 74, 58 P. 2d 77, where it was said:
. . But such a showing is not sufficient where the evidence offered suggests with equal force that the injuries might have resulted without fault of the defendant. . . .’ (p. 76.)” (p. 344.)
Plaintiffs evidence in Bias failed to rule out other equally possible causes of the accident such as manufacturing defects, installation errors, design defects, or faulty construction of the elevator shaft, all of which would be the responsibility of persons other than the defendant. Under these circumstances the doctrine of res ipsa loquitur was held to be inapplicable. In reaching this conclusion we noted that numerous jurisdictions have refused to apply the doctrine in elevator maintenance cases and we further stated:
“. . . Even where the doctrine has been applied, the courts usually indicate that if there was proof of a real possibility other forces could have caused the elevator malfunction, then the doctrine would be inappropriate. Accordingly, the majority of jurisdictions agree res ipsa loquitur is inapplicable where the injured party fails to exclude other possible causes of the injury. [Citation]
“In Kekelis v. Machine Works, 273 N. C. 439, 160 S. E. 2d 320, the court stated:
“ ‘The rule of res ipsa loquitur never applies when the facts of the occurrence, although indicating negligence on the part of some person, do not point to the defendant as the only probable tortfeasor. In such a case, unless additional evidence, which eliminates negligence on the part of all others who have had control of the instrument causing the plaintiff’s injury, is introduced, the court must nonsuit the case. . . .’ (p. 444)” (pp. 345-346.)
In the case at bar, appellant effectively demonstrated that the hospital bed was within appellee’s exclusive control. He has failed, however, to show that the malfunction of the hospital bed was the thing or instrumentality — the initial or foundation fact — which caused his spleen to rupture. Further, appellant has been unable to show that other possible causes of the rupture, all of which were traceable to persons other than appellee, did not cause his injuries. Under these circumstances, the trial court did not err in ruling that the doctrine of res ipsa loquitur was not applicable. In reaching this conclusion we do not overlook the several cases cited by appellant which he contends support applicability of the doctrine in this case. An analysis of each reveals that in none of them was there any question concerning the thing or instrumentality which actually injured the plaintiffs, and only upon this showing did the doctrine of res ipsa loquitur become applicable.
Since new trial must be had because of the erroneous instruction on circumstantial evidence the third party appeal must be dealt with. After this suit was filed by appellant against appellee St. Joseph Hospital and Rehabilitation Center, it in turn filed a third party petition naming The Anderson Company and the Simmons Company as third party defendants and alleging on their part negli gent manufacture and design of the bed. The petition sought reimbursement for any amount it might be required to pay appellant on his claim. It appears Anderson designed and made the screw tube assembly or Roton on the hospital bed while Simmons assembled the bed and sold it to appellee. Anderson first filed an answer alleging numerous defenses and, prior to trial but after depositions of hospital personnel had been taken, it filed a motion for summary judgment on the third party claim. The motion as well contained several grounds. This motion was sustained by the administrative judge without statement of any reason for the decision. Anderson says the only reason was that shortly after the incident in question the Roton on the bed appellant was occupying was discarded and thrown away by hospital personnel without any inspection, thus rendering it impossible for the requisite showing to be made that the Roton was defective at the time it left Anderson’s control and remained so at the time of the incident. Anderson defends the summary judgment only upon this ground.
Appellee responds that rendition of summary judgment was premature in that the court had before it no evidence on the issue of the unit’s manufacture or design. We agree, particularly since appellee was asserting negligent design. If in fact these units were improperly designed and manufactured as alleged then the absence of the particular unit would not necessarily render proof of the same impossible. Appellee may have difficulty in making such proof but it is nonetheless entitled to try in event it is held liable for appellant’s damage.
Upon appeal and upon the third party appeal the judgments are reversed and the cause is remanded for further proceedings consistent with the views herein expressed.
APPROVED BY THE COURT.
Kaul, J., dissents.
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The opinion of the court was delivered by
Kaul, J.:
Defendant-appellant, Little Jim Beard, appeals from jury convictions on two counts of second degree murder. The charges stemmed from the shooting of Neal Wheeler and Edward Peltier in Wheeler’s Kansas City apartment on June 2, 1974.
The evidence disclosed that during the day, preceding the night of the shootings, the defendant and the two deceased had been drinking and taking drugs. Sometime around midnight the defendant and the two deceased became embroiled in a fight. According to the testimony of Gerald Belgarde, a cousin of the deceased Edward Peltier, the defendant, the two deceased, and Belgarde were sitting on the front porch of Belgarde’s house which was next door to the Wheeler apartment. Peltier left the group and when he returned a few minutes later he told the group, according to Belgarde, that he had gone to the Wheeler apartment and found Loyce (Mrs. Wheeler) passed out. Peltier accused the defendant of giving Mrs. Wheeler some bad or “trash” drugs. The fight ensued and, after taking a beating from Wheeler and Peltier, defendant left the premises. About an hour later, defendant returned to the neighborhood and went to the Wheeler apartment where he encountered Mrs. Wheeler.
Mrs. Wheeler testified that defendant was scratched and cut and appeared to be angry and that he told her “I told them I would be back.” Wheeler and Peltier learned that defendant had returned to the Wheeler apartment and followed him within a few minutes. Mrs. Wheeler left by a back stairway and went to a neighbor’s apartment and hysterically announced “There’s going to be a shooting.” The neighbor called the police. Two shots were heard coming from the Wheeler apartment. Police arrived within a few minutes after the shooting and apprehended defendant in the hall outside the Wheeler apartment. A nine-shot .22 caliber revolver was taken from defendant. It was loaded, had two spent cartridges and smelled as though it had been recently fired. Defendant was arrested and charged with two counts of murder in the first degree.
Defendant specified four points of error on appeal. He first attacks the instruction on self-defense given by the trial court. No objection was made at trial, but defendant now claims the instruction was clearly erroneous. The defendant argues the instruction insinuates that defendant was the aggressor when, in fact, the evidence showed the victims to be the attacking parties. Defendant’s arguments are without merit. The instruction in question was given substantially in the words of PIK [Criminal] §§ 54.17, 54.21 and 54.22. It reads:
“The defendant claims self-defense. I give you here the law as to self-defense.
“A person is justified in the use of force to defend himself against an aggressor’s imminent use of unlawful force to the extent it appears reasonable to him under the circumstances then existing.
“A person is not permitted to provoke an attack on himself with the specific intention to use such attack as a justification for inflicting bodily harm upon the person he provoked and then claim self-defense as a justification for inflicting bodily harm upon the person he provoked.
“A person who initially provokes the use of force against himself is not justified in the use of force to defend himself unless either
“(a) He has reasonable ground to believe that he is in present danger of death or great bodily harm, and he has used every reasonable means to escape such danger other than the use of force with [which] is likely to cause death or great bodily harm to the other person; or
“(b) He has in good faith withdrawn and indicates clearly to the other person that he desires to withdraw and stop the use of force, but the other person continues or resumes the use of force.
“Again, the defendant has no burden of establishing self-defense rather, it is simply a question of whether, considering the evidence as to self-defense along with all of the other evidence in the case the State has convinced you by evidence to your satisfaction beyond a reasonable doubt that the defendant is guilty of the crime charged against him or of one of the lesser included offenses.”
The instruction accords with the pertinent statutes (K. S. A. 21-3211 and 21-3214) and is a correct statement of the law. The instruction, as we read it, does not declare the defendant to be the aggressor, but merely informs the jury of the statutory provisions pertaining to the use of force (K. S. A. 21-3214 [3]), as well as instructing the jury as to the right of self-defense and limitation on the force to be used by one in defending himself from unlawful attack. Whether defendant was an aggressor remained a question for the jury. There was ample evidence in this case which would have justified the jury in finding that defendant was an aggressor.
In several recent cases we have considered the new code provisions relating to the doctrine of self-defense (K. S. A. 21-3211, et seq.) and found them generally to be a codification of the common law rules on the subject. In State v. Stokes, 215 Kan. 5, 523 P. 2d 364, we discussed the new statutes and found no error in PIK instructions given in the language thereof. (See, also, State v. Blocker, 211 Kan. 185, 505 P. 2d 1099.) The instruction given was applicable to the evidence in the instant case. On the state of the record we find no error in the giving of the instruction, much less “clear error” which would be required to warrant reversal in the absence of defendant’s objection at trial.
Defendant next contends the court erred in permitting the state to inquire on redirect examination concerning matter that was not elicited in direct examination or covered in cross-examination. On this point defendant contends the trial court erred in permitting Officer Marmon of the Kansas City Police Department to testify concerning the identification of the body of Neal Wheeler on redirect examination. In State v. Wainwright, 190 Kan. 619, 376 P. 2d 829, we said:
“. . . [A] witness may be asked questions to clarify or modify statements made on cross-examination, or to explain matters brought out on such cross-examination about which he had not testified on direct examination, or to rebut or avoid the effect of such new matter. Indeed, the cross-examination of a witness may open the door for the admission on redirect examination of matters tending to support the case which would not have been admissible on the case in chief. . . .” (p. 622.)
Under this standard it is impossible to determine the permissible scope of redirect examination without the inclusion in the record of the direct and cross-examination testimony of the witness. Although none of this testimony was designated for inclusion in the record on appeal, the state’s brief quotes from the trial transcript of defense counsel’s cross-examination of this witness:
“Q. Now, you indicated you found a person you identified as Mr. Wheeler. Where was that at?
“A. Right there (indicating).”
Since defendant’s counsel covered the identification of the body of Wheeler in his cross-examination, it was well within the trial court’s discretion to admit the redirect testimony of Marmon. (State v. Nirschl, 208 Kan. 111, 490 P. 2d 917.) We find no error with respect to the admission of this testimony.
In his third contention defendant claims the trial court erred in admitting into evidence in the state’s -case the revolver and ammunition recovered from him after the' shootings. Defendant attacks the chain of possession. The- revolver in question was taken from defendant shortly after the shootings by Officer John Hannahan and identified -by him at trial as the weapon -he took from defendant. After taking the revolver from defendant, Hannahan gave it to Officer Marmon. In its brief the state says:
“. . . The testimony of Officer Marmon that he took the weapon to the detective bureau of the Kansas City, Kansas, Police Department and gave it to Detective Gander is not included in the record on appeal although it was designated as such for inclusion therein.”
This is the only break in the otherwise continuous chain of custody and even this flaw is cured by Hannahan’s in-court identification of the exhibits which provides ample foundation testimony for their admission. In dealing with a challenged chain of custody in the recent case of State v. Steward, 219 Kan. 256, 547 P. 2d 773, at page 266 of the opinion, we restated the applicable rule and guidelines for the application thereof laid down in State v. Tillman, 208 Kan. 954, 494 P. 2d 1178:
“ ‘. . . The rule is that a party who offers an object into evidence must show that it is reasonably certain that there have been no material alterations of the object since it was first taken into custody. It is not necessary, however, that the object offered into evidence should have been kept continuously under lock-and-key or continuously sealed up. The preliminary proof of the identity of the object and that the same has not been improperly tampered with, is first to be determined by the trial court. It is not necessary that all possibility of its being tampered with should be excluded. (State v. Cook, 17 Kan. 392; State v. Frideaux, 207 Kan. 790, 487 P. 2d 541.) The ultimate question of the sufficiency of the proof is, of course, for the jury to determine. . . .’ (pp. 958-959.)”
Generally, the admissibility of physical evidence is within the sound discretion of the trial court and is to be determined by the court on the basis of its relevance and connection with the accused and the crime charged. (State v. Wilson, 215 Kan. 437, 524 P. 2d 224; and State v. Robinson, 203 Kan. 304, 454 P. 2d 527.) We find no error in the admission of the revolver and ammunition.
Defendant finally contends the trial court erred in not setting aside the verdict of the jury, because defendant argues the evidence showed that the defendant acted in self-defense.
It may be conceded the defendant’s own testimony, if believed, indicated he acted in self-defense. However, the jury chose to adopt the state’s theory of the case and to believe the testimony of the state’s witnesses. The often stated scope of appellate review of evidence in a criminal case was recently restated in State v. Brown, 217 Kan. 595, 538 P. 2d 631, wherein we held:
“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 when viewed in the light most favorable to the state.” (Syl. 5.)
When viewed in the light most favorable to the state, the state’s evidence previously pointed out amply supports a reasonable inference of guilt. We find no error in the trial court’s refusal to set aside the verdict of the jury.
The judgment is affirmed.
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The opinion of the court was delivered by
Foth, C.:
This is a workmen’s compensation case in which the workman appeals from the trial court’s judgment that the Kansas act is not applicable to his injury, which was admittedly sustained in Missouri.
Since the accident occurred in Missouri, the Kansas act would not be applicable unless the contract of employment was “made” in Kansas. K. S. A. (now 1975 Supp.) 44-506; Morrison v. Hurst Drilling Co., 212 Kan. 706, 512 P. 2d 438. (The 1974 amendment, dealing with a “principal place of employment” within the state, has no applicability here.) The trial court’s holding was based on a factual finding that the employment contract was made in Missouri. The issue on appeal, therefore, is whether that finding is supported by substantial competent evidence. Hardman v. City of Iola, 219 Kan. 840, 549 P. 2d 1013, and cases cited therein.
When he was injured in 1971, Louis R. Neumer, the claimant, had been employed by the respondent Yellow Freight System, Inc., since 1959. He was and is a resident of Kansas. In April, 1959, he went to the Yellow Freight terminal in Kansas City, Missouri, looking for work. He was, in accordance with company routine, sent to take a physical examination. On April 25, either before or after taking the physical, he filed a written employment application. The negotiations between the claimant and Ray Masot, respondent’s hiring agent, were related by each of the participants.
Neumer testified:
“. . . So, after I got all these papers filled out, I went back down there, and he said, ‘Well, if everything’s all right, we will call you.’ So, on a Sunday evening, they called me and said, ‘Be at work at 12:01 Monday morning at [the terminal in Kansas City, Missourij.’ ”
That is the only description of the telephone call appearing in the record. As a result, Neumer went to work in Missouri on April 27, 1959.
Masot, the hiring agent, remembered hiring Neumer but had no independent recollection of the telephone call. He testified:
“Q. When he returned the application to you, Mr. Masot, did you make a determination at that time or had you already made a determination at that time to hire him on the temporary basis?
“A. ,Oh, I had already made the determination to hire him, yes.
“Q. Had you told Mr. Neumer by die time he brought the application back, that you had decided to hire him?
“A. Yes, I did.
“Q. So thereafter your communication indicating to him was merely to tell him when to report to work, is that correct?
“A. When to report to work, right.”
The trial court, in finding that the employment contract was made in Missouri, stated:
“The rationale of this decision is that Claimant’s prior offer of employment given at the Respondent’s terminal was by the Respondent’s agent accepted over the telephone, the acceptance spoken in and from the State of Missouri.”
The basic principle is that a contract is considered “made” when and where the last act necessary for its formation is done. Smith v. McBride & Dehmer Construction Co., 216 Kan. 76, 530 P. 2d 1222. When that act is the acceptance of an offer during a telephone conversation, the contract is “made” where the acceptor speaks his acceptance. Morrison v. Hurst Drilling Co., supra; Hartigan v. Babcock & Wilcox Co., 191 Kan. 331, 380 P. 2d 383; Pearson v. Electric Service Co., 166 Kan. 300, 201 P. 2d 643.
Was it reasonable for the trial court to conclude that Masot’s telephone call was an acceptance of Neumer’s prior offer to go to work? We think it was. Even under Neumer’s version the function of the telephone call was simply to tell him when to come to work, and not to offer him a job. The only difference between the two versions was that Masot said Neumer was hired when he filed his job application, while Neumer understood he would be hired later “if everything’s all right.” Only a finding that the phone call consisted of a job offer by Masot which was accepted by Neumer in Kansas would sustain Kansas jurisdiction over this claim. There was nothing in the evidence to support, much less require, such a finding.
Since the critical finding of the trial court is supported by substantial competent evidence the judgment is affirmed.
APPROVED BY THE COURT.
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The opinion of the court was delivered by
Kaul, J.:
This action was instituted by plaintiff-appellant, Lenard Johnson, against his former employer, defendant-appellee, for loss of wages and punitive damages for the alleged wrongful discharge from his employment.
The dispositive issue presented is whether there was a contract express or implied for a fixed term of employment. The appeal is from a summary judgment in favor of defendant rendered after interrogatories of several witnesses and the deposition of plaintiff had been filed. When defendant’s motion for summary judgment was presented to the trial court, the parties stipulated that all of the evidence relating to the terms of the contract of employment was before the court.
In the fall of 1971 plaintiff quit his employment with a meat packing plant in Iowa. Plaintiff knew there, was a packing plant in Liberal, Kansas, and came there in September 1971 and sought employment from defendant. Plaintiff filed an employment application with defendant and was hired on October 12, 1971. Plaintiff’s account of the only conversation he had with a representative of defendant, at the time of his employment, was that he was told that he would be a probationary employee for ninety days and if during that period he could prove that he could lug beef he would become a permanent employee. Plaintiff makes no contention, nor was there any evidence, that the duration of his employment was agreed upon or ever discussed and no written contract was executed. In his deposition plaintiff acknowledged that his understanding of the terms of his employment was “I had the right to quit at any time I wanted to.”
Plaintiff worked as a “beef lugger” until March 1972, when he injured his shoulder in the course of his duties. We were informed on oral argument plaintiff was awarded workmen’s compensation benefits for this injury. Subsequent to the shoulder injury, plaintiff was transferred to a different job which involved stacking boxes and loading trucks. Plaintiff was later transferred to a position entitled “manifestar,” which involved the recording of the shipments which were loaded on respective trucks. Plaintiff continued to work on the manifestar job until a few days prior to his termination when he was temporarily assigned to another job which entailed some heavier lifting. Plaintiff informed his supervisor that he was unable to lug the beef which he was required to do on this last job, and as a result thereof was discharged several days later, on October 7, 1972.
Plaintiff relates the events preceding his discharge in these words:
“. -. . On Thursday and Friday prior to my termination I went in and told Rod Allen that the work was bothering my shoulder. On the morning of my termination we were loading a truck with rounds and the whole gang, was working. I was instructed to lug the rounds by Chuck Watson. I didn’t refuse him; I told him my shoulder wouldn’t take it. I also talked to my lead man, Dennis McCarty, and he instructed me to load the rounds. I told him my shoulder wouldn’t take it, and then Chuck Watson took me to the office and told me he would get my time made out. . . .”
This litigation ensued and following summary judgment for defendant plaintiff appealed stating his one point in these words:
“The Court erroneously granted Defendant’s Motion for Summary Judgment and in ruling that a fixed period of time is necessary for Plaintiff, in this instance, to sustain his claim for damages; and in failing to rule that the various exhibits, A through F, and in particular the National Beef Packing Company Policy Manual constituted an implied contract of employment if, in fact, they did not constitute an express contract of employment.”
This court follows the general rule that in the absence of a contract, express or implied, between an employee and his employer covering the duration of employment, the employment is terminable at the will of either party, and the employee states no cause of action for breach of contract by alleging that he has been discharged. (Johnston v. Farmers Alliance Mutual Ins. Co., 218 Kan. 543, 545 P. 2d 312; Lorson v. Falcon Coach, Inc., 214 Kan. 670, 522 P. 2d 449; May v. Santa Fe Trail Transportation Co., 189 Kan. 419, 370 P. 2d 390; Swart v. Huston, 154 Kan. 182, 117 P. 2d 576; and 53 Am. Jur. 2d, Master and Servant, § 43, pp. 117-118.)
Plaintiff concedes the rule to be controlling in Kansas, but attempts to escape the application thereof by arguing that a “Company Policy Manual,” distributed to employees during plaintiffs employment, constituted an express contract or served as a basis for establishing a contract of employment by implication. The record discloses that the policy manual was published and distributed to employees sometime in late spring or summer of 1972, some nine or ten months after the commencement of plaintiffs employment. Plaintiff points out a statement in the manual “No employee shall be dismissed without just cause.” Plaintiff also relies on a statement in one of defendant’s advertisements that “This is not seasonal employment. . . .” Plaintiff argues that the statements referred to were binding on defendant in its employment relationship, and that they fix the employment duration at life or until an employee reaches retirement age.
A copy of the manual has been supplied to us with the record on appeal. It appears to be a general statement of company policies dealing with employee’s benefits, insurance, vacations, holidays, etc., as well as general operating procedures and plant rules. The manual does provide that new employees shall be probationary employees until they have worked ninety days, at which time an employee would become a regular full-time employee. This conforms with plaintiff’s account of his conversation at the time of his employment. We find nothing in the manual expressly providing for a fixed term of employment, nor is there language from which a contract to that effect could be inferred.
General rules applicable to employment are set forth in 53 Am. Jur. 2d, Master and Servant, § 27:
“Where no definite term of employment is expressed, the duration of employment depends on the intention of the parties as determined by circum stances in each particular case. The understanding and intent of the parties is to be ascertained from their written or oral negotiations, the usages of business, the situation and object of the parties, the nature of the employment, and all the circumstances surrounding the transaction. . . .” (p. 103.)
Concerning an agreement for permanent employment the same treatise [Master and Servant], § 32 reads:
“It is the general rule that a contraot to give a person permanent employment, in the absence of some further express or implied stipulation as to the duration of the employment or of a good consideration in addition-to the services contracted to be rendered, is no more than an indefinite general hiring terminable at the will of either party. An agreement to give ‘permanent employment’ means to give a steady employment, a steady job, a position of some permanence, as contrasted -with a temporary job or temporary employment. Such agreement does not mean that the employment shall be for life, or for any fixed or certain period, but only that it shall continue indefinitely, and until one or the other of the parties shall wish for some good reason to sever the relation.” (pp. 107-108.)
Moreover, as we have previously pointed out, the manual was not published until long after plaintiff’s employment. It was only a unilateral expression of company policy and procedures. Its terms were not bargained for by the parties and any benefits conferred by it were mere gratuities. Certainly, no meeting of the minds was evidenced by the defendant’s unilateral act of publishing company policy.
Plaintiff argues that the term “permanent employment” should be construed to mean some fixed or definite period of time, such as for fife or until age sixty-five. As previously pointed out, an agreement to give permanent employment simply means to give a steady job of some permanence, as distinguished from a temporary job or temporary employment. (53 Am. Jur. 2d, Master and Servant, § 32, pp. 107-108.)
While what has been said disposes of the controlling issue presented, we shall briefly comment on other matters mentioned in the briefs.
Plaintiff complains of loss of vacation pay. Ry the terms of the Company Policy Manual vacation eligibility requires employment for a period of one year. Plaintiff was not eligible for vacation pay. Plaintiff also asserts that he was not granted a grievance hearing as contemplated by the manual. However, plaintiff admits that he never submitted a written grievance within five days, as required by the manual. Moreover, he was granted a conference with Mr. Jacobson, company president, which is the final step in grievance procedure outlined by the manual.
Concerning plaintiff’s argument that he was dismissed without just cause, defendant answers that plaintiff’s dismissal was for refusal to obey orders of his supervisors — conduct which is expressly specified as a ground for dismissal in a section of the manual entitled “general plant rules.”
The record clearly indicates that plaintiff’s theory was that the policy manual constituted an express contract of employment or in the alternative that a contract should be implied from the manual and company advertisements. In his one point on appeal, plaintiff states the error relied upon was the trial court’s failure to find either an express or implied contract of employment. In his brief on appeal plaintiff states:
“The principal issue involved is whether there is an express or at least an implied contract of employment by and between Plaintiff and Defendant by virtue of the company policy manual. . . .”
Notwithstanding his definite commitment to a contract theory before the trial court and in his brief on appeal, plaintiff has, on the day the appeal was argued to this court, presented a supplementary brief with additional citations together with a motion that leave be granted to file the brief. Defendant has filed a response strenuously objecting on the ground that plaintiff is out of time and further that he is attempting to change his theory of the case from contract to tort. We think defendant’s objection is well-taken. We have, nevertheless, examined the additional cases cited by plaintiff and find them to sound in tort on a theory generally involving termination of employment allegedly motivated by malice or based on retaliation constituting a contravention of public policy, such as refusal by an employee to give perjured testimony as in Petermann v. International Brotherhood of Teamsters, 174 C. A. 2d 184, 344 P. 2d 25, or reporting for jury service in violation of employer’s orders as in Nees v. Hocks, (Or.) 536 P. 2d 512.
In the instant case no claim was made that plaintiff’s termination was motivated by malice or that it was based on retaliation for some conduct of plaintiff.
The parties stipulated that all evidence relating to a contract of employment was before the trial court. There was no issue as to any material fact. Under such circumstances, summary judgment was properly rendered under the rule set forth in Lorson v. Falcon Coach, Inc., supra.
The judgment is affirmed.
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The opinion of the court was delivered by
Prager, J.:
This is an action brought to recover judgment for sums due on a mortgage note, for determination of priorities of liens, and for the foreclosure of a real estate mortgage. The plaintiff-appellant is Amortibanc Investment Company, Inc., a Wichita investment company. Original defendants in the action are Dr. Sayed S. Jehan and his wife, Yasmeen Jehan, who executed the note and mortgage, and eight subcontractors and materialmen claiming liens on the real estate described in the mortgage.
The facts in the case are somewhat complicated and are important for the determination of the issues raised on this appeal. They are essentially as follows: Some time during the month of February 1972, the defendants Jehan consulted with Homefinders, a Wichita real estate agency, about arranging for the construction of a new home. Homefinders brought the Jehans together with personnel from Clewal Construction, Inc., a Wichita builder. On February 25, 1972, Clewal Construction and the Jehans entered into a written contract by the terms of which Clewal agreed to build the Jehans a new home. The contract was prepared by Homefinders on an ordinary real estate contract form. The important terms of the contract were filled in the blank spaces in the printed form with a fountain pen. The property to be sold was designated as “new construction.” The consideration to be paid by the Jehans was $47,600 to be paid in the following manner:
“Buyer to pay ten percent down (10%) and secure a ninety percent (90%) conventional loan at the lowest possible interest rate for a period of thirty (30) years. Buyer agrees to preclose loan at Amortibanc Investment Company so builder can draw funds during construction. Builder agrees to pay interest on these funds at final closing. The contract is subject to the approval of the plans and specifications by both buyer and seller and on securing the above loan. The entire contract is contingent on buyer’s passing an exam on June 8 and 9 which will qualify him to be granted a license as a practicing M. D. in the state, otherwise it becomes null and void and the earnest money shall be returned to the buyer.”
The contract further provided that possession shall be given “at closing” and that the contract shall be closed within a reasonable time after proof of merchantable title is submitted to buyer and in any event no later than November 15, 1972. The buyer deposited $200 earnest money with Homefinders. The contract then recited as follows in the blank space designated other conditions of contract: “This contract excludes the cost of the building site. Buyer to pay his own loan cost.” The contract was signed by Walter Suter, president, on behalf of Clewal Construction, Inc., and by the Jehans. The requirement that the Jehans agree to “preclose” a loan at Amortibanc was placed in the contract at the insistence of Clewal Construction, Inc. It is important to note that the builder, Clewal, agreed to pay interest up to the time of final closing on any funds drawn during construction.
On July 23, 1972, the Jehans entered into a contract for the purchase of real estate upon which they intended to have their home built. The Jehans acquired title to the real estate by deed dated August 24, 1972. The purchase price for the land is stated in the real estate purchase contract to be $4200.
On September 29, 1972, the Jehans went to the office of the plaintiff Amortibanc to “preclose” a loan with Amortibanc as required by the construction contract. At that time, according to the testimony of the defendant, Dr. Sayed S. Jehan, the employees of Amortibanc advised them that the Jehans would not be responsible for the loan unless the house was completed. In this regard Dr. Jehan’s exact testimony as taken verbatim from the record was as follows:
“They told us that our loan had been approved and what we are signing now in fact is that when the house is completed that we would be responsible for the loan, we would assume the loan and we would not be responsible for anything unless the house is completed and that their attorney of Amortibanc was interested that the money is properly spent and that the subcontractor and everybody is paid and there would be no trouble; if something happened, we would not be responsible for anything. And then they put a paper in front of us and told us to sign them and said everything is okay. And it took us five minutes to sign all the papers, and they told us those papers would be explained to us. I must say I was quite new in the country and trusted everybody and went ahead and signed the papers without questioning.”
At the time of the trial in July 1974, Dr. Jehan testified that he was a native of Pakistan and had been in the United States four and one-half years. Amortibanc prepared the papers for the Jehans to sign. On September 29, 1972, the Jehans signed a first mortgage note dated September 29, 1972, which provided for payment of $45,000 with interest at the rate of 1% percent per annum. Installment payments of principal and interest in the sum of $322.65 were to commence on April 1, 1973, and a like sum to be paid on the first day of each month thereafter until paid. The date of April 1, 1973, is important because as will be noted later Clewal agreed with Amortibanc that the building was to be completed by March 29, 1973. Clewal further agreed with Amortibanc to pay all interest to the date of completion and if not completed by March 29, 1973, Clewal was to pay all principal payments until completed. After signing the note the Jehans signed a mortgage dated September 29, 1972, in the amount of $45,000. This mortgage was subsequently filed for record on October 2,1972.
Following the execution of the note and mortgage the Jehans signed a document which has been designated by the parties as a “disbursement authorization.” This instrument dated September 29, 1972, was in the form of a letter directed to Amortibanc Investment Company, Inc., and signed by the Jehans. The body of the letter read as follows:
“You are hereby authorized by the undersigned to disburse from the proceeds of the above loan such sums as may be requested by Clewal Con struction, Inc, hereinafter referred to as Contractor, to cover portions of work completed in the construction of the dwelling house being constructed on the mortgaged premises that is at 2552 N. Deliróse, Wichita, Kansas. Such disbursements may be made by you directly to said contractor upon your receipt of Certificate of Inspection of AMORTIBANC INVESTMENT COMPANY, INC., your Appraiser, that the work for which contractor has requested payment is completed.
“It is understood and stipulated by the undersigned that your disbursement of any portion of the funds constituting the proceeds of the above loan in accordance with the above authorization is a disbursement of the loan proceeds to the undersigned even though your payment of such disbursement is directly to said contractor, and that you are released from any and all liability for any loss the undersigned may sustain or incur by reason of failure of said contractor to apply the proceeds of any such disbursement to payment of bills for labor and/or materials incurred in such construction, or the correctness of any amounts represented by said contractor to be due and owing for such construction.”
The next important event occurred on October 29, 1972. On that date Amortibanc and Clewal Construction, Inc. entered into a construction loan agreement by which Clewal as builder agreed to commence construction on Jehans’ real estate in accordance with specifications submitted to the Eureka Federal Loan and Savings Association. This construction loan agreement then provided as follows:
“It is understood and agreed that Sayed S, Jehan and Yasmeen Jehan Husband and wife (buyers), hereinunder called Buyers, have entered into a real estate purchase contract with Builder, whereunder Builder will construct and sell to Buyers the residence and real estate described above; that Amortibanc will loan to Buyers the principal sum of $45,000.00 (permanent loan amount) to be represented by a promissory note of even date herewith, and secured by a real estate mortgage of the same date on the above described property.
“In consideration of the execution by Buyers of said note and mortgage, Amortibanc agrees to advance the proceeds of said loan to Buyers as construction advances. Such advances may be made direct to Builder pursuant to the authorization signed by Buyers. The advances so to be made by Amortibanc to Builders shall not exceed three in number and the total amount thereof shall not exceed $37,850.00 (construction loan amount). The amount of each such advance shall be computed on the basis of the degree of completion of said house at the time the advance is requested by Builder. The percent of completion of construction shall be determined by an inspection made by Amortibanc and such percentage figure shall then be applied to $37,850.00 (construction loan amount) and the advance to be made shall be the resulting figure.
“Builder agrees to pay interest on said advances at the rate of 7%% per annum from the date he receives such advances until March 29, 1973 (date of completion), or such earlier date as said house may be completed and possession delivered to Buyers. Provided, however, in the event Builder fails to complete the construction of said house by March 29, 1973 (date of completion), he will make the principal payment due on the above mentioned $45,000.00 (permanent loan amount) note, April, 1973 (due date of first payment), together with accrued interest thereon from March 29, 1973 (date of completion), at the rate of 7%% per annum, and Builder will make each subsequent monthly principal payment on said note, together with interest on the unpaid principal thereof at the rate of 7%% per annum, until said house is completed as provided by the plans and specifications and possession delivered to the Buyers.
“It is understood and agreed that Builder will so complete and deliver possession of said house by March 29, 1973 (date of completion).
“Concurrently with payment of the first advance by Amortibanc to Builder, Builder will pay Amortibanc a commitment fee of $378.50 (1% of construction loan amount), and all other costs and expenses in setting up said loan. Builder will provide Amortibanc with an original Builder’s Risk Policy prior to the date of the first draw. For each draw requested by Builder in excess of the three allowed, there will be a service charge of Ten Dollars.”
The loan agreement is then signed for Amortibanc by its executive vice president, Paul E. Hampel, and by Walter H. Suter, president, for Clewal Construction, Inc. The record shows that this construction loan agreement was prepared by Amortibanc.
The record is not clear as to the exact date when the construction of the home by Clewal commenced. It was some time in October of 1972. Over the following ten months Amortibanc made six advance payments to Clewal pursuant to their construction loan agreement. The total of these six advances amounted to $26,188.50. All of the disbursements were made directly from Amortibanc to Clewal and the Jehans were never furnished a notice of the date or amount of any disbursement nor a copy of the inspection reports made by Amortibanc s inspector prior to such disbursements being made. The trial court found that certain lien affidavits furnished by Clewal were defective and inadequate in a number of particulars. During this period when it became obvious that construction could not be completed by the anticipated completion date of March 29, 1973, Clewal and the Jehans executed an agreement extending the date of completion to October 1, 1973. No other agreements were executed by either Amortibanc, Clewal or the Jehans regarding this delay in the completion of construction of the Jehans’ house.
Some time during the course of the construction Clewal began having financial difficulties. It did not pay all of its various subcontractors and materialmen. After August of 1973 Clewal abandoned the construction of the Jehans’ house and thereafter six sub contractors and materialmen filed mechanics’ liens against the Jehan real estate in the amount of $10,899.43. The validity of these liens is undisputed. The liens are held by various defendants in the case. Only one of them, Star Lumber and Supply Company, Inc., has made an appearance on appeal in this court.
After Clewal abandoned the job no further work was performed for completion of the house and the house remains in the state of being only 68 percent completed as of the time of the trial. Amortibanc apparently decided that it could not collect from Clewal Construction the payment of principal and interest due on the amount of its construction advances to Clewal. Having received no payments for almost a year, Amortibanc on March 12, 1974, filed this action praying in its petition for judgment against the defendants Jehan in the total amount of $26,188.50 plus interest, that sum being the total amount of the construction advancements made to Clewal with interest. It also prayed for foreclosure of Jehans’ real estate mortgage to satisfy any judgment obtained against the Jehans. In the action Amortibanc also prayed for a determination of the priority of its mortgage as against the various mechanics’ liens.
Having been brought into court by Amortibanc, the Jehans filed their answer in which they admitted the execution of the first mortgage note on September 29, 1972. They specifically denied that the advances by Amortibanc were advanced to them. They alleged the funds were actually advanced to Clewal Construction, Inc. under the construction loan agreement between Amortibanc and Clewal dated October 29, 1972. The Jehans denied that they had defaulted under the terms and provisions of their note and mortgage or that Amortibanc was entitled to have its mortgage foreclosed. The defendants Jehan further alleged as a defense that Amortibanc was negligent in making advancements to Clewal Construction, Inc. without first determining and insuring that all subcontractors and materialmen were paid. Other defenses were set forth in the answer which are not material here.
Along with their answer the Jehans filed a cross-petition against the plaintiff for breach of a duty to protect the defendants in the advancement and payment of funds to Clewal Construction. In their cross-petition the Jehans alleged that they had been damaged in the amount of $35,000 because of the unpaid mechanics’ liens and the increased cost to complete the residence on their real estate. The Jehans also filed a third-party complaint against Clewal Construction, Inc. alleging breach of Clewal’s agreement to con struct a residence for the Jehans. In their third-party petition the Jehans prayed for judgment against Clewal Construction in an amount equal to any amount awarded by the court against the Jehans. Thereafter, Amortibanc as plaintiff filed its amended reply to the answer and cross-petition of defendants in which it alleged that the defendants had by their disbursement authorization expressly waived and released plaintiff Amortibanc from any obligation or duty to supervise and insure payment by the contractor of its obligation to materialmen furnishing labor or materials.
With the pleadings in this posture the case proceeded to trial. The evidence presented at the trial is extremely important because the testimony of the witnesses sheds light on the dealings of the various parties. The plaintiff called as its first witness Foirest Anderson, the secretary-treasurer of Amortibanc. His duties include the supervision and control of distribution of construction withdrawals in connection with mortgage loan transactions. He testified in regard to the procedure followed in making the six construction advances to Clewal Construction. He identified one check dated July 20, 1973, payable to Eureka Federal Savings and Loan Association in the amount of $450 which amount included a fee for extending the permanent loan date. Anderson testified that Eureka Federal Savings and Loan Association was eventually to be the permanent lender to the Jehans on the house. This evidence is important in that it shows that Amortibanc never intended to carry the permanent loan on the property for the Jehans. When asked as to the status of the loan he stated that no principal amount had been paid on the construction loan and that any interest paid had been paid by Clewal Construction, Inc. His testimony made it clear that Amortibanc and Clewal had executed many contracts for the construction of houses and there were quite a number of such construction loans outstanding. To his knowledge Dr. Jehan had never been provided with a breakdown of the advances made by Amortibanc to Clewal nor a copy of the periodical inspection report which Amortibanc had received from its inspector. The plaintiff Amortibanc rested its case having called as its sole witness Forrest Anderson.
The defendants Jehan called as their first witness Forrest Anderson who had just testified for the plaintiff. Anderson testified that as of the date of the trial 68 percent of the construction on the house had been completed. Certain funds were advanced which were to be paid by the contractor Clewal as part of its construction costs. Anderson conceded that Amortibanc had not made any effort to see that the subcontractors were paid by Clewal. It is customary for Amortibanc to charge a one-percent service fee on any loan which it makes. Clewal paid a one-percent fee on the construction loan amounting to $378.50. When asked if a charge for a loan fee would have been made to Jehans at the time of closing and delivery of the house to the Jehans, the witness testified that if the loan had been closed and completed, the normal procedure would have been to charge the buyer one percent of the permanent loan which in this case was to be $45,000. The charge would have been made at the time of the closing of the loan. This testimony was important because it showed that moneys advanced to Clewal were advanced in accordance with its construction loan agreement. The construction loan to Clewal was obviously considered to be a distinct and separate loan since Clewal was charged one percent of the amount thereof or $378.50. The testimony of Anderson that the Jehans would have been charged a one-percent fee on the permanent loan if the loan had been closed is certainly evidence that Anderson considered that the permanent loan to the Jehans had not yet been closed and that it would not be closed until delivery of the completed house to the Jehans.
The defendants called as their next witness Dr. Sayed S. Jehan. He testified as to his conversation with the Amortibanc employees at the time he signed the mortgage note, mortgage, and disbursement authorization form. As pointed out above he testified that he and his wife understood that they would be responsible for the loan only when the house was completed. Jehan also testified that the construction work on the house by Clewal did not progress satisfactorily and on numerous occasions he called Mr. Trammell, an employee of Amortibanc, who said he would call Clewal Construction and see what could be done. At no time did the Amortibanc furnish any accounting to the Jehans of moneys advanced to Clewal. Finally Jehan testified that he and his wife selected Clewal Construction to be the builders of their home through Homefinders and that Amortibanc had nothing to do with their selection of Clewal. On redirect examination Dr. Jehan testified that he had obtained an estimate of the cost of completing the house in the amount of $32,000.
The final witness called on rebuttal by the plaintiff was Mary Kay Mai, assistant vice president of Amortibanc. She was present when the Jehans signed the loan documents and denied that she or anyone else told the Jehans that they had no obligation on the note or mortgage until the house was completed. She identified a number of so-called lien affidavits signed by Walter Suter. There was a lien affidavit obtained at each of the six times advance payments were made to Clewal by Amortibane. The trial court found that these lien affidavits were defective for a number of reasons: (1) An affidavit dated March 16, 1973, was not signed for Clewal by Walter H. Suter, whose name appeared thereon. (2) One affidavit was not signed by a notary. (3) Two of the affidavits were not dated. (4) The dates on all of the lien affidavits were filled in at a later date by someone other than the affiant Suter or notary public Mai. Mrs. Mai testified that the undated affidavits were obtained at the time of the last two advances made to Clewal Construction, Inc. She did not know of any instances in which lien affidavits were signed in blank as it is not their policy. She does not keep a notary public log. She did not fill in the address of the property which was covered by the affidavits. The addresses apparently were filled in later. Mary Kay Mai was the last witness to testify.
Following the completion of the trial the district court made extensive findings of fact and conclusions of law and entered judgment in favor of the defendants Jehan, denying plaintiff’s petition for judgment on the Jehan note and foreclosure of the mortgage. The court further found that the six mechanics’ liens asserted in the action were valid liens, and were coequal as to priority with each other. In addition the court granted judgment in favor of the defendants Jehan on their third-party petition against Clewal Construction, Inc. in the amount of $35,000. Costs in the action were assessed to the plaintiff and the defendant Clewal Construction, Inc. The plaintiff Amortibane has appealed to this court contending that the trial court erred with respect to certain findings of fact and conclusions of law.
The trial court found that all advances made by the plaintiff Amortibane to Clewal Construction, Inc. were made under the terms and conditions of the construction loan agreement between Amortibane and Clewal dated October 29, 1972, and not to the defendants Jehan under the note and mortgage given by Jehans to Amortibane dated September 29, 1972. The district court further made findings that the defendants Jehan were not in default on the mortgage executed by them to Amortibane; that no obligation existed requiring the defendants Jehan to make such payment; that the obligation to make payments was the obligation of Clewal Con struction, Inc.; that the construction loan agreement between Clewal and Amortibanc dated October 29, 1972, placed the obligation for payment of construction advances on the builder Clewal; and that the Jehans did not have any obligation to pay the same until the house was completed and possession delivered. Based upon these findings of fact the trial court concluded that the petition of Amortibanc to foreclose Jehans’ mortgage should be denied. The plaintiff maintains on this appeal that such findings of fact and conclusions of law were erroneous because the language of the various documents introduced into evidence established that the moneys to be disbursed by Amortibanc to Clewal for construction advances were to be paid from the proceeds of the Jehans’ loan as evidenced by the note and mortgage. Specifically, Amortibanc relies upon the construction agreement entered between Jehans and Clewal Construction, Inc. dated February 25, 1972, which provided that the buyers Jehan were to pay ten percent on the purchase price of $47,600 and secure a ninety-percent conventional loan and further that the Jehans were to preclose a loan at Amortibanc “so that the builder can draw funds during construction.” Amortibanc further relies upon the language contained in the disbursement authorization agreement executed September 29, 1972, along with the mortgage note and mortgage, and upon the language of the loan agreement between Amortibanc and Clewal which refers to the Amortibanc loan to the Jehans and provides that Amortibanc agrees to advance the proceeds of said loan to the builder as construction advances. It is Amortibanc’s position that there is no language in any of these documents which would even suggest that the note and mortgage executed by the Jehans to Amortibanc would be effective only if the contractor successfully completed the construction of the dwelling. In view of these various written instruments Amortibanc contends that if they are all construed together and the language is given effect it necessarily follows that the money disbursed by Amortibanc for construction advances was paid from the proceeds of the Jehans’ loan and disbursed in accordance with the disbursement authorization. Simply stated Amortibanc’s position is that on default of the repayment obligation created by Jehans’ note and mortgage, plaintiff Amortibanc was entitled to judgment on Jehans’ note and foreclosure of the mortgage as a first and prior lien thereon.
It is the position of the Jehans on this appeal that the findings of, the trial court and its conclusions of law are fully supported by the evidence when all of the various instruments involving Amortibanc, Clewal, and the Jehans are considered together along with the oral testimony presented at the trial.
We have concluded that the findings of the trial court and its conclusions of law based thereon are supported by the evidence and by established principles of law. The problem presented to the trial court was to determine from all of the interwoven transactions involving Amortibanc, the Jehans, and Clewal what the parties intended with respect to their various rights and obligations. In arriving at its decision in this case the trial court obviously took into consideration a number of facts and circumstances which lead to a reasonable conclusion that Amortibanc was the financing agency of Clewal for construction of the house and that the obligation of the Jehans to pay Amortibanc for construction advances was conditioned on the proper completion of the construction contract by Clewal and the delivery of a completed house to the Jehans.
It is a well-settled principle of contract law that where two or more instruments are executed by the same parties at or near the same time in the course of the same transaction and concern the same subject matter, they will be read and construed together. (Topeka Savings Association v. Beck, 199 Kan. 272, 428 P. 2d 779; Atlas Industries, Inc. v. National Cash Register Co., 216 Kan. 213, 531 P. 2d 41.) Furthermore if a written agreement is ambiguous, the facts and circumstances existing prior to and contemporaneously with its execution are relevant to clarify the intent and purpose of the contract in that regard. (Cline v. Angle, 216 Kan. 328, 532 P. 2d 1093.) Stated in another way where ambiguity or uncertainty is involved, the intention is not ascertained by resort to literal interpretation, but by considering all language employed, the circumstances existing when the agreement was made, the object sought to be attained, and other circumstances, if any, which tend to clarify the real intention of the parties. These rules have been applied in interpreting mortgages and in other loan transactions. (Federal Land Bank v. Girtch, 151 Kan. 528, 99 P. 2d 768.)
When the evidence presented at the trial in this case is carefully analyzed it clearly appears that the various contracts and the note and mortgage involved were ambiguous and that oral testimony of the parties was properly considered to determine the true intent and purpose of the parties. We note specifically the following evidentiary matters contained in the record:
(1) The Jehans were interested in arranging for the construction of a new home. On February 25, 1972, Clewal and the Jehans signed an instrument which was designated as a real estate purchase contract under the terms of which Clewal agreed to construct a new home for the Jehans for the sum of $47,600. Ry the terms of this contract the Jehans agreed to ‘preclose a loan” at Amortibanc Investment Company so “builder can draw funds during said construction.” The builder agreed to pay interest on these funds at final closing. It should be noted that Amortibanc came into the picture at the insistence of Clewal and that the Jehans were not to “close a loan” but to “preclose a loan.” The use of the word “preclose” is not clear and raises some question as to what the parties intended by the use of that word.
(2) On September 29, 1972, according to Dr. Jehan when the Jehans went to the office of Amortibanc and executed the note, mortgage and disbursement authorization letter, they were advised by Amortibanc employees that the Jehans would be obligated on the note and mortgage only upon completion of the house. Although this testimony was denied by the employees of Amortibanc it was for the trial court to judge the credibility of the witnesses. It is undisputed that Amortibanc prepared all documents for the Jehans to sign. It is significant that installment payments of principal and interest under the note were to commence on April 1, 1973, which was after the completion date for the building, March 29, 1973. This provision would tend to show the intention of Amortibanc that the Jehans were to commence payments of principal and interest after the house had been completed and possession delivered to the Jehans.
(3) On October 29, 1972, Amortibanc and Clewal entered into a separate construction loan agreement. This agreement refers specifically to the “real estate purchase contract” wherein Clewal had agreed to construct and sell to the Jehans a residence. Clewal under this construction agreement agreed to pay all interest on construction advances until March 29, 1973, or until the house was completed and possession delivered to the buyer. In the event the builder failed to complete the construction of the house by March 29, 1973, Clewal agreed to make all principal payments due on the $45,000 mortgage previously executed by the Jehans. There are other provisions in this contract between Clewal and Amortibanc which are significant. The construction advances to be made by Amortibanc to Clewal in the total amount of $37,850 are designated as the “construction loan amount.” The $45,000 figure contained in the Jehans’ note and mortgage is designated as the “permanent loan amount.” Furthermore Clewal agreed to pay to Amortibanc a commitment fee of $378.50 (one percent of the construction loan amount) and all other costs and expenses in setting up the loan. It could be concluded from this instrument that Amortibanc intended that there be two separate and distinct loans: a construction loan to Clewal in the amount of $37,850 and a permanent loan in the amount of $45,000 on which the obligations for interest and principal were not to be paid until possession of a completed house was delivered to the Jehans. This language is strong evidence of the intent of Amortibanc that Clewal be obligated for construction advances up to the time the house was completed and that the obligation of the Jehans to make payments was conditional on the completion of the house.
(4) During the course of the construction of the house, Amortibanc made six advance payments to Clewal. According to the testimony of Amortibancs secretary-treasurer, Forrest Anderson, these advance payments were made on checks payable to Clewal only in accordance with' the construction loan agreement with Clewal. Amortibanc never at any time notified the Jehans as to the date or amount of any such disbursements. This is clearly evidence that Amortibanc was looking to Clewal for repayment of the construction loan until such time as the house was completed and possession delivered to the Jehans.
(5) The testimony of Forrest Anderson was also important in that it showed that Amortibanc never intended to carry a permanent loan on the property for the Jehans. Eureka Federal Savings and Loan was to be the permanent lender to the Jehans. Anderson testified that it is customary for Amortibanc to charge a one-percent service fee on any loan that it makes. Clewal paid one-percent fee on its construction loan to Amortibanc. When asked if a one-percent fee would be charged to the Jehans at the completion of the house and at the close of the loan, the witness testified that “if the loan had been closed and completed,” the Jehans would have been charged one percent of the permanent loan which in this case was to be $45,000. This testimony is positive evidence that Anderson considered that the permanent loan to the Jehans had not yet been closed and that it would not be closed until the completed house had been delivered to the Jehans.
(6) In the October 29 construction loan agreement between Amortibanc and Clewal, Clewal as builder agreed to provide Amortibanc with an original builder’s risk policy prior to the date of the first draw. This provision would logically lead to the conclusion that Amortibanc was in the position of something more than a mere lender of funds for completion of the Jehan house. A mere lender would not ordinarily be concerned with requiring the contractor to provide an insurance policy to protect it from liability while construction was in progress. This requirement of insurance would indicate that Amortibanc was an active participant in Clewal construction jobs and not merely a financing agency which lent money to the Jehans, as the purchasers of a home.
(7) The evidence was undisputed that Clewal Construction had had numerous construction jobs financed by Amortibanc. Amortibanc got involved in the transaction as a result of the insistence of Clewal. We note that some of the checks for advance payments from Amortibanc t'o Clewal included construction advances for several jobs including the Jehan contract. This commingling of construction funds on several projects is certainly evidence to show that Amortibanc was the financial backer of Clewal and its construction projects rather than a mere lender of money to Dr. and Mrs. Jehan.
In reviewing an evidentiary record to determine whether the findings of the trial court are supported by the evidence, this court is concerned only with evidence which supports the trial court’s findings, not with evidence which might have supported contrary findings. (Landrum v. Taylor, 217 Kan. 113, 535 P. 2d 406; Parsons Mobile Products, Inc. v. Remmert, 216 Kan. 256, 531 P. 2d 428.) Here there was evidence to support the findings of the trial court that the delivery of the note and mortgage by the Jehans to Amortibanc was conditional, that is, to take effect only upon the happening of a future event — the completion of the construction work on the house and the delivery of the same to the Jehans by Clewal Construction. The complaint of Amortibanc that parol evidence was admitted to show that the obligation under the note and mortgage was conditional is not well taken. The rule is well recognized in this state that as between the original parties to a negotiable instrument parol evidence is admissible to show that the delivery of the instrument to the payee was conditional, that is, to take effect only upon the happening of some future event.- (Greenleaf State Bank v. Monteith, 173 Kan. 799, 252 P. 2d 621; Miller v. Buss, 103 Kan. 338, 173 Pac. 975.) Since there is evidence to support the findings of the trial court that the obligation of the Jehans on their note and mortgage to Amortibanc was conditioned on the completion of the house and delivery of possession to the Jehans, it follows as a matter of law that the Jehans had not defaulted on their mortgage obligations. Hence, the trial court correctly held that Amortibanc was not entitled to judgment on the note or to a foreclosure of the mortgage. Since Amortibanc’s rights were conditional upon the proper performance of the construction contract by Clewal, Amortibanc could have protected itself by taking over the construction project and completing the work in accordance with contractual requirements and by delivering possession of a completed house to the Jehans. At that point the condition having been fulfilled the Jehans would have been obligated on their note and mortgage to Amortibanc.
The determination of the first point raised disposes of the appeal. It was not necessary for the trial court to find that the mortgage, note and disbursement authorization were unconscionable and unenforceable. Nor do the findings of the trial court that Amortibanc failed to use reasonable care and was negligent in the making of advance construction payments to Clewal have any significance in the case. The district court simply denied judgment to Amortibanc on the Jehans’ note and mortgage for the reason that the condition of the note and mortgage not having occurred, the Jehans were not yet obligated to pay the note and mortgage and hence there was no default. The trial court did not enter judgment in favor of the Jehans against the plaintiff Amortibanc for damages resulting from negligence in the disbursement of construction funds. The trial court, in effect, left the parties in the position where the Jehans had no obligation to pay the note and mortgage to Amortibanc until a completed house was delivered to them pursuant to the contract. In view of our disposition of the case the remaining issues raised on this appeal need not be determined.
For the reasons set forth above the judgment of the district court is affirmed.
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The opinion of the court was delivered by
Owsley, J.:
Defendant Robert M. Solem appeals from his conviction in the district court of Pottawatomie county, Kansas, for the sale of an hallucinogenic drug (K. S. A. 1975 Supp. 65-4127b [b] [3]) and possession of a stimulant drug with intent to sell (K. S. A. 1975 Supp. 65-4127b [b] [2]). Defendant complains of errors in the admission of evidence and the failure of the judge at the preliminary hearing to disqualify himself.
The charges brought against defendant arose out of an undercover narcotics investigation conducted in the Manhattan, Kansas, area. The city of Manhattan lies in the southeast comer of Riley county and a portion extends into Pottawatomie county. During the period between December, 1973, and October, 1974, the state attorney general’s office sent two narcotics agents, John Eckhart and Ray Simmons, to the Manhattan area. In the course of their in vestigation, the agents came in contact with defendant Solem and one Susan Wilkin. On October 2, 1974, while at a residence in Pottawatomie county, Solem allegedly sold to agent Simmons an unspecified quantity of an hallucinogenic drug. It was also alleged that defendant had possession of some amphetamine pills which he intended to sell. Defendant was arrested several days later in Pottawatomie county and charged with the sale of an hallucinogenic drug and possession with intent to sell a stimulant drug. At approximately the same time defendant was charged in Riley county with two felony drug counts arising out of an alleged offer to sell the agents some drugs at a Manhattan apartment on September 13, 1974. Susan Wilkin was also charged in Pottawatomie county on a felony drug count and in Riley county on a misdemeanor drug charge.
During the misdemeanor trial of Susan Wilkin in Riley county, agent Eckhart testified that he thought he had recorded telephone conversations between himself, Solem, and Ms. Wilkin. Upon learning of such information the Riley county court granted Ms. Wilkin’s motion to dismiss the charge against her without prejudice since the state could not produce the recordings. The Riley county felony charge against defendant was likewise dismissed without prejudice for the same reason.
Prior to the date set for the preliminary hearing in the Pottawatomie county court on the charges brought against him in that county, defendant filed motions requesting copies of recordings taken by agents of the state and asking the county judge to step aside since he was not a lawyer. The county attorney responded by denying knowledge of any tape recordings and stating that no recordings were contemplated for use as evidence in the case. Defendant’s motions were denied by the court and the preliminary hearing was held as scheduled. Trial was subsequently held in the Pottawatomie district court resulting in a jury verdict of guilty on each count. Following an unsuccessful motion for a new trial defendant perfected an appeal to this court.
The initial claim of error in defendant’s statement of points is that it was a denial of due process to hold the preliminary examination before a nonlawyer judge. In view of our recent pronouncement in State v. Boone, 218 Kan. 482, 543 P. 2d 945, wherein we held that an accused’s right to due process of law is not per se infringed because his preliminary examination is conducted by a nonlawyer judge, defendant has abandoned his argument on this point.
Defendant, however, reasserts his contention made before the court below that he was denied due process since the county judge who conducted the preliminary examination had been a member of the county sheriffs office at the time of the alleged offense. He points out that several of the state’s witnesses named in the original complaint were also members of the sheriff’s office. Based on these facts defendant contends the county judge should have disqualified himself from conducting the preliminary examination.
The record discloses that no objection was made at the preliminary hearing on this ground. It was not until the hearing on the pretrial motion to dismiss that defendant first raised this issue. At that time, counsel for defendant informed the court that he did not know what part, if any, the county judge might have taken in the investigation of defendant’s case, but he felt the judge should have disqualified himself because of the appearance of partiality. The trial court denied defendant’s request to call the county judge as a witness at the hearing. The prosecuting attorney advised the court that while some of the Pottawatomie county sheriff’s officers may have handled evidence or have taken persons into custody, none of the sheriff’s officers were involved in the investigation and the “making” of the case against defendant. After hearing argument by both sides the trial court ruled that the county judge’s former position with the sheriff’s office was not ground for dismissal of the charges and overruled the motion.
It is a fundamental right of an accused to be tried before a judge in a fair, unbiased and impartial manner. (State v. Bowser, 155 Kan. 723, 129 P. 2d 268; Tootle v. Berkley, 60 Kan. 446, 56 Pac. 755.) Thus, it is held that one who acts in a judicial capacity is disqualified from hearing any matter concerning which he may be biased or prejudiced, or in which he may have an interest. (Flannery v. Flannery, 203 Kan. 239, 452 P. 2d 846.) In the absence of circumstances which of themselves would tend to cast doubt as to the fairness of whatever judgment might be pronounced, the question of bias or prejudice on the part of the court rests within the conscience of the court itself. (State v. Greene, 214 Kan. 78, 519 P. 2d 651.)
In the instant case we are not concerned with the impartiality of the trier of facts. Here, it is claimed the examining magistrate was biased. The preliminary examination which a magistrate conducts is not considered a “trial” in the ordinary sense. Its purpose is not to determine innocence or guilt, but to determine whether an offense has been committed and whether there is probable cause for charging the accused with its commission. It is commonly held that where a defendant pleads guilty or goes to trial on the information, the subject of the preliminary examination is no longer material and the defendant cannot raise objection to the sufficiency of the preliminary examination after trial and conviction. (State v. Ralls, 216 Kan. 692, 533 P. 2d 1294; Palmer v. State, 199 Kan. 73, 427 P. 2d 492; State v. McCarther, 196 Kan. 665, 414 P. 2d 59; Portis v. State, 195 Kan. 313, 403 P. 2d 959; State v. Young, 194 Kan. 242, 398 P. 2d 584; State v. Osburn, 171 Kan. 330, 232 P. 2d 451.) In McCarther, the court said:
“The foregoing procedural rules are salutary and serve a legitimate state interest. [Citation omitted.] Their purpose is designed to promote definiteness, fairness, and orderly procedure of criminal litigation, and they present no federal question. [Citation omitted.] When a plea in abatement is timely filed and the state responds with a proper pleading, evidence is introduced upon the issue and if the plea is overruled the ruling thereon is not appealable until final disposition of the case in the district court. [Citation omitted.] However, the sufficiency of the evidence to sustain the order overruling the plea is reviewable upon appeal from the judgment of conviction. [Citation omitted.] Tlrus, the rule permits the defendant to orderly raise the question of lack of preliminary examination prior to going to trial, and also preserves the question for appellate review.” (p. 672.)
In State v. Bloomer, 197 Kan. 668, 421 P. 2d 58, the defendant waived his preliminary hearing 'and was bound over for trial on charges of murder and felonious assault. After his arraignment defendant filed a plea in abatement alleging the county judge who conducted the preliminary examination was a nephew of one of the alleged victims and a member of the posse which searched for him. In ruling that the alleged irregularities in the preliminary hearing did not operate to nullify the subsequent conviction, the court said:
“We recognize that the right to a preliminary hearing (absent grand jury indictment or being a fugitive from justice) prior to being informed against in district court for felony is a positive right of an accused — the right not to be held in custody without probable cause. It appears, however, that if there is an irregularity in the holding of preliminary examination, or the waiver thereof, not amounting to complete abrogation of the right, the irregularity actually affects only the legality of the detention by the magistrate. Appellant does not tell us wherein he has been prejudiced by the waiver of the preliminary hearing or in the handling of his case by the examining magistrate. At the hearing on the plea in abatement where such showing could have been made no facts were produced establishing prejudice and we are unable to perceive any in fact resulting. The irregularities do not appear to bear in any way upon the waiver and appellant does not so contend. Nor are we prepared to say they were of such nature as to vitiate the subsequent trial in district court. That trial was upon the information filed in the district court upon evidence duly adduced. After two convictions by a jury not now challenged for insufficiency of evidence appellant is hardly in a position to contend want of probable cause for detention to answer the charges or that he was prejudiced by his waiver of this procedural safeguard. Hence under all the circumstances we hold the alleged irregularities do not operate to nullify the subsequent judgment and sentence imposed in either of appellant’s convictions.” (p. 672.)
In like manner, we believe any irregularity in the conduct of the preliminary examination afforded defendant in the instant case is not sufficient cause for reversal. The mere fact the county magistrate served as a deputy sheriff at the time of the alleged offense, without a showing of some actual prejudice resulting therefrom, is not in itself reason for granting defendant a new trial. Especially is this true where, as here, the sufficiency of the evidence to support the conviction is not questioned.
We do not mean to detract from the fundamental right of every defendant to a preliminary examination, as stated in State v. McCarther, supra, but under the circumstances of this case we conclude defendant’s allegation of possible bias on the part of the examining magistrate should not invalidate the judgment of the jury.
Defendant’s third point on appeal relates to the admission of “other crimes” evidence under K. S. A. 60-455. Agent Simmons testified that on September 13, 1974, he, accompanied by Eckhart, went to the apartment of Susan Wilkin in Manhattan, and both defendant and Ms. Wilkin were present. Simmons further testified that in the course of their conversation, defendant asked him if he would like to buy some MDA. Defendant objected to the admission of this statement and requested a mistrial be declared. After colloquy between the court and counsel, the court overruled the motion for mistrial. The court failed to strike the testimony, admonish the jury to disregard it, or give a limiting instruction. We have concluded the evidence was admissible and that the trial court did not err. This result is justified by what we said in State v. Martin, 208 Kan. 950, 495 P. 2d 89. In Martin we stated that while evidence of an independent offense may be admissible under K. S. A. 60-455, it may also possess evidential value to show commission of the offense itself and be admissible independent of the statute. It was pointed out that evidence which has a direct bearing on and relation to commission of an offense is admissible without a limiting instruction. Evidence which is otherwise relevant is not rendered inadmissible because it may disclose other or independent offenses.
In the instant case the record discloses continuing contacts related to drugs, between the agents of the attorney general’s office and defendant. The statement attributed to defendant tended to prove those contacts existed and eventually led to the transaction which resulted in defendant’s arrest. Defendant’s prior offer to sell the drugs was relevant and material to his ultimate sale of drugs to the agent. As stated in Martin, the fact the questioned evidence related to a prior crime (offer to sell drugs, K. S. A. 1975 Supp. 65-4127b [b] [3]) does not prohibit its introduction to show commission of the offense charged.
Finally, defendant contends the charges against .him should have been dismissed for failure of the prosecution to produce recordings taken of his telephone conversation. As previously stated, agent Eckhart testified at the Riley county trial of Ms. Wilkin that he “thought” he had recorded certain telephone conversations between himself and defendant. Following his testimony, agent Eckhart apparently left the state for parts unknown. When the state failed to produce the recordings the Riley county charges against defendant were subsequently dismissed. Charges were then brought against defendant in Pottawatomie county. Defendant once again filed a motion to inspect the alleged recordings. At that time the Pottawatomie county attorney advised the trial court that his office had no recordings of conversations involving defendant, nor did it know of the existence of any, and that it did not intend to call Eckhart as a witness. Later, during argument on defendant’s motion to dismiss, the trial court ordered the county attorney to “make an affirmative inquiry” as to the existence of any documents or tapes. In compliance with the court’s order, the county attorney requested from the Kansas Bureau of Investigation any and all information as to the whereabouts of agent Eckhart and the existence of any tape recordings made by him. The KBI replied that Eckhart was last known to be in Las Vegas, Nevada, and it knew of no taped conversations made by him. Satisfied the prosecution had made a good faith effort to locate the tapes, the trial court overruled defendant’s motion to dismiss.
We are not here presented with a case in which the prosecution deliberately or in bad faith refused to disclose exculpatory evidence. Defendant admits the county attorney made an effort to locate the agent and the alleged tapes. Also, we are not concerned with an alleged abuse of discretion on the part of the trial court for refusal to grant a motion for discovery under K. S. A. 22-3212. Although the trial court did not believe the unavailability of the tapes was ground for dismissal, it ordered the county attorney to take affirmative steps to locate any such evidence and disclose the findings to defendant.
The issue, as we view it, is whether under the circumstances of this case the failure of the prosecution to locate possible tapes which “might” contain some form of exculpatory evidence necessitates dismissal of the charges. We think not. K. S. A. 22-3212 (1) (a) grants the trial court discretion in permitting inspection of a defendant’s recorded statements in the following terms:
“(1) Upon motion of a defendant the court may order the prosecuting attorney to permit the defendant to inspect and copy or photograph any relevant (a) written or recorded statements or confessions made by the defendant, or copies thereof, which are or have been in the possession, custody or control of the prosecution, the existence of which is known, or by the exercise of due diligence may become known, to the prosecuting attorney; . . .”
Under this section the prosecution cannot be charged with wrongdoing for failure to permit inspection of recordings not “in the possession, custody or control of the prosecution.” (See, United States v. Cotroni, 527 F. 2d 708 [2d Cir. 1975].) Moreover, it is incumbent upon the accused to demonstrate the relevancy and materiality of the information sought. (State v. Humphrey, 217 Kan. 352, 537 P. 2d 155.) Defendant has failed in his burden in both respects.
After closely examining the record we are satisfied there is no evidence to indicate the alleged tapes contained exculpatory evidence other than the unsupported speculation of defendant. Defendant’s counsel admitted he did not know what was on the taped conversations, but he argued it was possible there “may” be some evidence that would help defendant. Although counsel argued it might show entrapment or some other defense there was no attempt by defendant to raise this defense during trial, nor is there evidence in the record to support such a claim. This is not a situation where the accused asserted affirmatively that the evidence sought would contain exculpatory evidence. Based on these circumstances, we cannot say the trial court erred in refusing to dismiss the charges.
No error appearing, the judgment of the trial court is affirmed.
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Per Curiam:
This is an appeal by Ronald Mackley (defendant-appellant) from a Ford County District Court order which did not reflect a credit or allowance on the statutory sentence for the time he spent at Osawatomie and Topeka State Hospital while undergoing pretrial mental examinations.
The question presented on appeal is whether K. S. A. 21-4614 which provides that the sentence in a criminal action shall reflect a credit or “allowance for the time which the defendant has spent in jail pending the disposition of the defendant’s case” should reflect a credit or allowance for time spent in mental hospitals while undergoing pretrial mental examinations.
In this case the appellant was charged with writing and delivering a worthless check. He was initially confined in the Ford County jail. Later, while a prisoner, the appellant was transferred and committed to the Osawatomie State Hospital for 45 days for examination to determine his competency to stand trial. Still later, the appellant changed his plea from not guilty to not guilty by reason of insanity. The appellant was then held in custody at the Topeka State Hospital for 64 days for mental evaluations in connection with his defense. Still later, the appellant pled guilty to the charge.
The trial court gave credit for the days actually spent in the Ford County jail, but denied the appellant’s motion to allow him credit for the 109 days of hospital confinement. Appeal has been duly perfected.
Under the circumstances of this case, the confinement at the state mental hospitals was tantamount to being in jail. The physical place of confinement is not important as the appellant technically continued to be in jail while held in custody at the hospitals. He was not free on bail, had no control over his place of custody and was never free to leave the hospitals. For all practical intents and purposes, he was still in jail. The court takes judicial notice that the state mental hospitals have the facilities to enforce confinement of their patients, which brings them within the dictionary definition of a “jail.”
The question presented is one of first impression in Kansas. However, two cases from other jurisdictions are in point. In People v. Gravlin, 52 Mich. App. 467, 217 N. W. 2d 404 (1974), the court was confronted with a similar statute and held that the word “jail” within the meaning of the statute providing that one who has served any time in jail prior to sentencing is entitled to credit for jail time, means “a place of confinement,” and that a mental hospital is such a place.
A similar decision was reached in People ex rel. Broderick v. Noble, 26 Misc. 2d 903, 207 N. Y. S. 2d 467 (Sup. Ct. 1960), where it was held that a hospital where a prisoner was involuntarily held was a prison or jail within the meaning of the statute, even though there was no prison ward in the hospital. Credit for the days in the hospital was allowed on the sentence.
The logic of the two decisions above cited is impressive. We think it is obvious the legislature intended the word “jail” in K. S. A. 21-4614 be given its commonly understood meaning as any place of confinement and not just a local bastile.
The decision of the lower court is reversed and the case remanded with directions to modify the sentence by allowing additional credit for the 109 days spent in the state hospital at Osawatomie and Topeka.
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The opinion of the court was delivered by
Foth, C.:
This case is one of several stemming from a two car crash on August 27, 1970, in the city of Liberal. The issue is whether a personal injury judgment in favor of a passenger in one car against both his driver and the driver of the other car has any binding effect in a subsequent action between the two drivers. We hold that it does not.
One car was a taxi driven by Anthony Herman and owned by the appellee Georgia Williams, doing business as the Liberal Taxi Company. The second vehicle was driven by the appellant Edward Evans; Marilyn Evans and Gary Vaughn were his passengers. Herman, the taxi driver, was killed and all occupants of the Evans vehicle were injured.
Gary Vaughn, a passenger in the Evans car, sued his driver and the taxi company. As to his driver he alleged gross and wanton negligence, as required by the guest statute (K. S. A. 8-122b, now repealed). As to the taxi company he 'alleged simple negligence on the part of its agent, the taxi driver Herman. Marilyn Evans, the other passenger in the Evans car, filed an action only against the taxi company. The two actions were consolidated for trial, resulting in verdicts for both plaintiffs.
The appellee taxi company filed a third party petition against Evans and Vaughn alleging gross and wanton negligence causing the destruction of its taxi. The claim against Vaughn was later dismissed on motion of the taxi company, leaving standing its claim against Evans, the driver of the private vehicle. He answered the company’s petition by denying gross and wanton negligence on his part and alleging simple contributory negligence on the part of the taxi driver Herman. He also counterclaimed against the company for damage to the vehicle he was driving. These third party claims were severed from the actions of the two passengers, and all issues in the third party actions were reserved for trial at a later time. They were later consolidated with a wrongful death action brought by Herman’s widow.
After the verdict for the passenger Vaughn against both Evans and the taxi company, Herman’s widow and the company both moved for partial summary judgment on their claims against Evans, as to the issue of liability. Their argument was that the jury’s verdict necessarily found Evans guilty of gross and wanton negligence, and it did not matter that it also convicted the taxi driver of simple negligence. The motion of Herman’s widow was denied and is not at issue here, but the taxi company’s motion was granted upon the doctrine of collateral estoppel. Evans has appealed.
The main thrust of appellant’s argument is that collateral estoppel is inappropriate because the jury verdict did not adjudicate the question of possible contributory negligence by the taxi driver Herman. The appellee, on the other hand, treats the case as a summary judgment problem, arguing that since the first case established gross and wanton negligence by Evans, only gross and wanton contributory negligence can defeat recoveiy, citing Bogle v. Conway, 198 Kan. 166, 422 P. 2d 971. Under that theory Herman’s simple contributory negligence, as pleaded by Evans, is insufficient, and the case was ripe for summary judgment.
The trouble with this theory, apparently adopted by the trial court, is that it presupposes that the prior finding in favor of Vaughn against Evans works a collateral estoppel in favor of the taxi company against Evans. We do not believe it does.
Collateral estoppel is defined as “a bar in an action upon a different claim as to certain matters in issue whioh were determined in a former judgment.” (Penachio v. Walker, 207 Kan. 54, 57, 483 P. 2d 1119.) It is closely related to res judicata, the distinction being pointed out in Goetz v. Board of Trustees, 203 Kan. 340, 454 P. 2d 481, Syl. para 6:
“The doctrine of collateral estoppel is different from the doctrine of res judicata. Instead of preventing a second assertion of the same claim or cause of action, the doctrine of collateral estoppel prevents a second litigation of the same issues between the same parties or their privies even in connection with a different claim or cause of action.” (Emphasis added.)
We are thus looking for “issues” which have been litigated “between the same parties.” Put another way:
“The doctrine of collateral estoppel may be invoked as a bar to litigating an issue when the following is shown (1) a prior judgment on the merits which determined the rights and liabilities of the parties on the issue based upon ultimate facts as disclosed by the pleadings and judgment, (2) the parties must be the same or in privity therein and (3) the issue litigated must have been determined and necessary to support the judgment. [Citations omitted.]” (Bud Jennings Carpets & Draperies, Inc. v. Greenhouse, 210 Kan. 92, 96, 499 P. 2d 1096.)
See also, Neville v. Hennigh, 214 Kan. 681, 522 P. 2d 443.
Here the issue of the relative negligence of the two drivers was not raised by any pleadings which were being tried between Williams and Evans. While it is true both co-defendants by answer alleged that the accident was the fault of the other, such statements were mere denials of plaintiff’s claim and did not amount to assertions of claims against each other. The issue of liability between them was thus not before the jury at the trial. “The trial court has jurisdiction to decide only such issues as are raised by the pleadings . . .” (Bowen, Administrator v. Lewis, 198 Kan. 605, 612, 426 P. 2d 238.) The issue, therefore, cannot be deemed adjudicated for purposes of collateral estoppel. As this court has stated:
“. . . The true rule, now well established, is that where a second action between the same parties is upon a different claim or demand the judgment in the prior action operates as an estoppel only as to those matters in issue upon the determination of which the finding was made or the judgment rendered, and does not extend to matters which might have been, but were not, litigated and determined in the former action.” (Stroup v. Pepper, 69 Kan. 241, 245, 76 Pac. 825.)
By that standard the question of negligence as between the co-defendants was not “necessary” to the first judgment, which went only to their respective liability to the plaintiff passenger.
This case is virtually controlled by Mickadeit v. Kansas Power and Light Co., 174 Kan. 484, 257 P. 2d 156, not cited by the parties. In that case KP&L asserted the defense of res judicata, based on an earlier case in which one Dorssom had sued both Mickadeit and the power company alleging joint liability for an auto accident. KP&L had asserted its innocence and alleged negligence on the part of both Dorssom and Mickadeit. Mickadeit had filed a counterclaim against Dorssom, but no cross-claim against KP&L.
In the second suit, in which Mickadeit sued KP&L, the power company argued that when Mickadeit filed his counterclaim against Dorssom he was required to litigate all matters arising out of the accident, including any claims against KP&L. This court agreed that the prior judgment was conclusive as to issues between the plaintiff (Dorssom) and defendant (Mickadeit) in the first suit, but rejected the argument as to issues between the co-defendants in the first suit, who were true adversaries for the first time in the second suit. The court quoted with approval from an annotation in 101 A. L. R. 104, 105:
“While the cases are not entirely in harmony, sometimes even in the same jurisdiction, the rule supported by the great weight of authority is that a judgment in favor of the plaintiff in an action against two or more defendants is not res judicata or conclusive of the rights and liabilities of the defendants inter se in a subsequent action between them, unless those rights and liabilities were expressly put in issue in the first action, by cross complaint or other adversary pleadings, and determined by the judgment in the first action.” (Emphasis added.)
The court also cited annotations in 142 A. L. R. 727 and 23 A. L. R. 2d 710, and quoted with approval the encyclopedias (174 Kan. at 491):
“A judgment ordinarily settles nothing as to the relative rights and liabilities of the coplaintiffs or codefendants inter sese, unless their hostile or conflicting claims were actually brought in issue, litigated, and determined.” (50 C. J. S., Judgments, §819.)
“The general rule is that parties to a judgment are not bound by it in subsequent controversies between each other, where they are not adversaries in the action in which the judgment is rendered. This is true whether the judgment is rendered in favor of the plaintiff, or determines the issues in favor of the defendants. The rule applies to a fact which might have been, but was not, litigated in the original action. The theory of the many decisions supporting the general rule is that the judgment merely adjudicates the rights of the plaintiff as against each defendant, and leaves unadjudicated the rights of the defendants as among themselves. It is also a general rule that a plaintiff is not concluded by the result of a litigation between two defendants in an action concerning a matter upon which the plaintiff’s complaint tendered no issue.” (30 Am. Jur., Judgments, §233.)
The court goes on to discuss and quote from several cases from other jurisdictions before concluding that the action by Dorssom against Mickadeit and KP&L had no binding effect.
The annotation quoted in Mickadeit is supplemented in 24 A. L. R. 3d 318. Among the cases noted therein is Pearlman v. Truppo, 10 N. J. Misc. 477, 159 A. 623, which applies precisely the principle applicable here. There, in a prior acticin, a passenger in Pearlman’s car had sued both Pearlman and Truppo. The plaintiff had received a judgment against Pearlman, but a nonsuit was entered in favor of the defendant Truppo. In the second case Truppo asserted res judicata, claiming that his lack of negligence was established by the prior judgment in his favor. The court, however, found the doctrine inapplicable.
“It is fundamental and universal that the former judgment proffered as res adjudicata in a subsequent suit must have been rendered in an action in which the parties to the subsequent suit were adverse parties. What is meant by adverse parties scarcely needs definition. Its significance is apparent from the expression itself. They must be opposite parties to an issue between them. The issue must be proffered by one and controverted by the other. They must be arrayed on opposite sides of the issue which must be raised by appropriate cross-pleadings between the defendants themselves, so that each may have control of the proceedings to enable him to exhaust the question of liability inter sese. It is not enough that they, by their separate answers, deny liability and claim that the accident was due to the negligence of the other as such pleading only goes to answering the claim of the plaintiff and tenders no issue to which the other defendant may demur or reply to or join issue upon so as to settle the liability one to the other. [Citations omitted.]” (10 N. J. Misc. at 478-9. Emphasis added.)
The author of the later annotation also states a rationale for the general rule:
“. . . [R]ecovery of a joint judgment by an automobile passenger against the host motorist and another motorist merely determines that the host motorist was guilty of negligence concerning his passenger, and not that he was guilty of negligence concerning the other motorist which, as a contributing cause, would bar his subsequent suit against the other motorist, it being possible that the host motorist did something or failed to do something in connection with a duty owed his passenger which was properly considered by tire jury in the passengers action against the host and the other motorist as being causative negligence toward the passenger and which concurred with the negligence of the other motorist, which act or omission could not properly be considered as causative negligence as between the host motorist and the other motorist in the subsequent action, and that the questions of contributory negligence and last clear chance are not germane to the issue of the codefendants to the passenger, but might be involved in the subsequent action between the codefendants.” (24 A. L. R. 3d at 324-5.)
We therefore hold that the prior judgment against the co-defendants Evans and the taxi company does not activate the doctrine of collateral estoppel as to liability between the two defendants. This is so because the question of liability between them was not expressly put in issue in the prior case, but in fact that issue was expressly reserved by the severance of the cross-claims from the main action.
Since neither the alleged gross and wanton negligence nor the simple negligence of Evans is established as to Williams (the taxi company), and each is denied by Evans, the partial summary judgment on liability was premature. The judgment is therefore reversed and the case is remanded for further proceedings consistent with this opinion.
APPROVED BY THE COURT.
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Per Curiam:
This is an action by real estate brokers against landowners for the recovery of a real estate commission. The trial court sustained a motion for summary judgment on behalf of the landowners, and the brokers appeal.
The business dealing between these parties commenced in July, 1973, when one of the brokers contacted Roche to inquire about the possibility of listing a building and eight acres of land for sale. Northern and Roche were equal co-owners of the Mark I office building in Overland Park, Kansas, and they were the sole stockholders and corporate officers of a Kansas corporation which owned approximately eight acres adjacent to the building. As a result of this initial contact, the landowners listed with the brokers both the building and the land. It is agreed by all parties that this original listing was a “package deal” — the land and building were to be sold together, or in the alternative, the land could be sold separately but the building could not be sold before the land. There was no written listing contract; all of the agreements between the parties were oral.
Ultimately the brokers were successful in interesting a California Trust in the building. Representatives of the Trust met with the brokers and landowners and inspected the building. The Trust was not interested in acquiring the land.
Here the parties differ on what occurred. The brokers contend that the sale was to be conducted through a third party who would serve as a “straw man” in order to avoid certain registration delays with the Securities and Exchange Commission. Roche testified that there was a discussion of this “third party bit, which we turned down.” The brokers contend that the landowners agreed on October 23,1973 to sell the building or expose it to the market separately from the land. In other words the plaintiffs contend that when the Trust appeared interested in acquiring the building only, the defendants acquiesced in a change in the listing agreement and in effect listed the building and the land separately so that the building could be sold prior to the sale of the land. The landowners deny this and contend that there was never a deviation from the original listing agreement.
At any rate, the brokers procured a written offer or commitment from the Trust to the “straw man”, Frank Hawkins, and a commitment from Hawkins to Northern and Roche to purchase the building. These 'two commitments were presented to Roche. The plaintiffs claim that upon the presentation of these commitments Roche shook hands 'and said “it was a deal.” Roche testified that on that occasion he said, “Well, Jim, you finally made it in here with a deal. Fine, and we will be back at you.” Roche and Northern then considered the commitments and turned them down because there was no payment of earnest money; they did not know the “straw man” or his financial responsibility; and the offer was for the building only, while Northern and Roche insisted that the eight acres had to be sold at or prior to the time the building was sold.
Depositions were taken of individual parties. Thereafter the defendants filed a motion for summary judgment “on the ground that the pleadings and depositions previously filed show that the defendants are entitled to judgment as a matter of law.” The court, by letter of December 12, 1974, sustained the motion for summary judgment without comment or explanation.
The brokers contend that the court erred in sustaining the motion when there existed from the pleadings, depositions and affidavits material controverted issues of fact, and in sustaining the motion without buttressing the judgment with findings of fact and conclu sions of law sufficient to explain the rationale of the decision. We agree.
In order for a real estate broker to prevail in an action to recover a commission, the burden is upon the broker to prove that he produced a buyer who was ready, willing and able to purchase the property on terms acceptable to the owners. Campbell v. Fowler, 214 Kan. 491 (Syl. 1), 520 P. 2d 1285; Winkelman v. Allen, 214 Kan. 22, 519 P. 2d 1377. The broker must also show that he is the efficient and procuring cause of a consummated deal; however, this requirement is unnecessary where failure to consummate the sale results from the wrongful act or interference of the principal. Winkelman v. Allen, supra. Here, there are disputed issues as to whether or not the specific terms of the proposal were acceptable to the owners, and whether the owners agreed to sell the building separately and apart from the land or not. An issue of lesser importance is whether the “straw man” was financially able — although this is of little moment since he was backed by the Trust and there appears to be no dispute as to the finanical capabilities of the Trust. Defendants contend that there is no real dispute of fact and that they never deviated from the original “package deal.” The brokers dispute this and the depositions of Bligh and Lord would support a contrary conclusion. We conclude that there are disputed issues of material fact and thus it was error to enter summary judgment.
The record is barren of any indication of the basis upon which the trial judge arrived at his conclusion. As we noted in Brown v. Wichita State University, P. E. C., Inc., 217 Kan. 661, 664, 538 P. 2d 713, a general ruling such as this:
“. . . does not leave an appellate court much to work on when the validity of a summary Judgment is challenged on the basis that genuine issues of material fact exist. . . .”
Although K. S. A. 60-252 (a) exempts summary judgment from its requirement that the trial judge state the controlling facts, for the reason that rendition of summary judgment is improper if the controlling facts are in dispute, Rule 116 (214 Kan. xxxvii) of this court relating to appellate practice is broader than § 60-252 (a) in that it requires in all contested matters submitted to a judge without a jury, the judge shall briefly state the legal principles controlling the decision. Duffin v. Patrick, 212 Kan. 772, 512 P. 2d 442; and, see, Henrickson v. Drotts, 219 Kan. 435, 548 P. 2d 465, wherein we quoted from Brown v. Wichita State University, P. E. C., Inc., supra, as follows:
‘“Rule 116 of this court relating to appellate practice is broader than Section 60-252 (a) in that it requires in all contested matters submitted to a judge without a jury, the judge shall, in addition to stating the controlling facts required by 60-252, briefly state the legal principles controlling his decision. (Duffin v. Patrick, 212 Kan. 772, 512 P. 2d 442.) It may be said that the entering of summary judgment is also a contested matter and that when considered with Section 60-256 (d) the district court should state what it considers to be controlling facts and the legal principles upon which summary judgment was granted. Otherwise, this court upon appellate review will be required to explore and consider every possible legal theory which may be said to be involved in the summary judgment. Judges of a court of record, unlike a jury which may render an unreasoned decision in a general verdict, must, under our statute and Rule 116, “go on the line,” so to speak, and render a “reasoned decision” — that is, assign reasons for the decision rendered.’ (pp. 664-665.)” (p. 439.)
Where the facts are not in dispute the court may properly enter summary judgment, but upon every such entry the court should state the controlling lea;al principles and enunciate the basis on which the judgment rests. Failure to do so can only result in confusion. Frequently, neither the litigants nor the appellate courts can decipher the ruling and uncover the genuine basis upon which the trial court entered the judgment.
The judgment is reversed with directions to proceed with trial.
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The opinion of the court was delivered by
Fatzer, C. J.:
This is an appeal from a conviction following trial to a jury for possession of a controlled substance with intent to sell in violation of K. S. A. 1975 Supp. 65-4127b (b) (1).
The facts may be briefly summarized. At about 1:20 a. m. on January 25, 1974, two Salina policemen observed a vehicle driven by Jimmy Ritkers pull into the Gibson’s parking lot and park behind the Sands Restaurant. The defendant-appellant, Gregory K. Faulkner, got out of the vehicle on the passenger side and walked toward the restaurant. He ignored one of the officer’s repeated requests to stop until he reached the restaurant entrance. When the other officer approached the vehicle to ask the driver for identification, he observed a hypodermic needle and small plastic bag of pills on the floorboard of the passenger side. A brown paper bag was also observed protruding from the glove compartment. This bag contained a large quantity of pills, many of which were the controlled substance amobarbital. The defendant was charged with possession of amobarbital with intent to sell and was subsequently convicted. He perfected this appeal and now asserts four trial errors.
The appellant first contends the district court erred in admitting, over his objection, an authenticated copy of the journal entry of judgment of a previous conviction without requiring evidence of surrounding facts and circumstances showing the similarity between the past and present crimes. The appellant’s identity as the subject of the prior conviction was conceded. The journal entry showed that on July 7, 1972, the appellant was convicted of the crime of possession of a controlled substance in Green County, Missouri. Admission of the prior conviction pursuant to K. S. A. 60-455 was discussed at pretrial conference, and the evidence was offered at the end of the state’s case in chief for the purpose of showing intent, knowledge and absence of mistake. After reference to other crimes in the journal entry was stricken, it was received in evidence for these limited purposes and the jury was instructed accordingly. No complaint against the instructions has been lodged.
K. S. A. 60-455 provides in pertinent part:
“Subject to section 60-447 evidence that a person committed a crime or civil wrong on a specified occasion is inadmissible to prove his disposition to commit crime or civil wrong as the basis for an inference that he committed another crime or civil wrong on another specified occasion but,’’subject to section . . . 60-445 . . . such evidence is admissible when relevant to prove some other material fact including . . . intent . . . knowledge ... or absence of mistake . . .” (Emphasis added.)
In ruling on the admissibility of evidence of a prior conviction under 60-455, a district court must (1) determine it is relevant to prove one of the facts specified in the statute, (2) determine that fact is a disputed material fact — i.e. that it is substantially in issue and (3) balance the probative value of the prior conviction evidence against its tendency to prejudice the jury.
Relevancy is more a matter of logic and experience than of law. Evidence is relevant if it has any tendency in reason to prove a material fact (K. S. A. 60-401 [b]), or if it renders the desired inference more probable than it would be without the evidence. (State v. Baker, 219 Kan. 854, 549 P. 2d 911.) Materiality, on the other hand, is largely a question of law. 22A C. J. S. Criminal Law, § 637 (1961); Slough, Relevancy Unraveled, 5 Kan. L. Rev. 1 (1956). Materiality requires that the fact proved be significant under the substantive law of the case and properly at issue. Professor Slough makes this distinction:
“. . . Though an evidential fact be relevant under the rules of logic, it is not material unless it has a legitimate and effective bearing on the decision of the ultimate facts in issue.” (Slough, Relevancy Unraveled, 5 Kan. L. Rev. 1, 5 [1956].)
The materiality requirement of K. S. A. 60-455 was discussed in State v. Bly, 215 Kan. 168, 523 P. 2d 397, in these terms:
“. . . Probative value consists of more than logical relevancy. Evidence of other crimes has no probative value if the fact it is supposed to prove is not substantially in issue. . . .” (Id. 176, 523 P. 2d 404.)
In Bly we held, in effect, that “materiality,” for purposes of K. S. A. 60-455, contemplates a fact which has a legitimate and effective bearing on the decision of the case and is in dispute. If the fact is obvious from the mere doing of an act, or if the fact is conceded, evidence of other crimes to prove that fact should not be admitted because it serves no purpose to justify whatever prejudice it creates. (See 31A C. J. S. Evidence, §§ 159, 166 [1964].)
Here, the appellant was charged with possession of a controlled substance with intent to sell. Proof of “possession” was an essential element of the state’s burden. The Uniform Controlled Substances Act, (K. S. A. 65-4101 et seq.) does not define “possession.” (See K. S. A. 21-3102 [1].) In State v. Neal, 215 Kan. 737. 529 P. 2d 114, we defined “possession,” citing PIK Criminal, Ch. 53.00, at p. 69 (1971):
“Possession. Having control over a place or thing with knowledge of and the intent to have such control. State v. Metz, 107 Kan. 593, 193 Pac. 177 (1920); City of Hutchinson v. Weems, 173 Kan. 452, 249 P. 2d 633 (1952). . .”
The prior conviction was offered to prove knowledge, intent and absence of mistake. Both knowledge and absence of mistake are factors bearing on intent. Knowledge signifies awareness and is a requirement for “possession.”
“Knowledge of the presence of a narcotic or dangerous drug as embraced within the concept of physical control with the intent to exercise such control is essential. . . .” (28 C. J. S., Drugs and Narcotics Supplement, §160 [1974], p. 235.)
Absence of mistake simply denotes an absence of honest error; evidence of prior acts illustrates the doing of the criminal act in question was intentional. Slough, Other Vices, Other Crimes: An Evidentiary Dilemma, 20 Kan. L. Rev. 411 (1972).
Evidence of the prior conviction was offered essentially to prove the specific intent required for “possession.” Control was shown by circumstantial and testimonial evidence. Intent to exercise control over the amobarbital was disputed.
“. . . Where an act in itself may be susceptible to two interpretations, one innocent and the other criminal, then the intent with which the act is done becomes the critical element in determining its character.” (State v. Nading, 214 Kan. 249, 254, 519 P. 2d 714, 719.)
Whether the appellant had the specific intent required to prove possession was a highly material fact substantially in issue.
The appellant asserts that the relevancy of his prior conviction to prove intent was not shown because there was no evidence of surrounding circumstances showing similarity of the offenses. He argues we should adopt the same rule of relevancy for “intent” as we adopted for “identity” in State v. Bly, supra. Under Bly, before a prior conviction can be relevant to show the same person committed that crime and the crime charged, there must be a showing of the underlying facts and circumstances of the prior crime.
We think such a showing is unnecessary here. When identity is conceded, logic does not always require a showing of the underlying facts and circumstances of a prior conviction when it is offered to prove a specific intent. Under the facts of the instant case, the journal entry of judgment of the prior conviction for possession of a controlled substance raised a reasonable inference that the appellant was familiar with controlled substances and had knowledge of and intended to exercise control over the amobarbital. For other examples in which the journal entry of judgment by itself was relevant to prove specific intent, see State v. Lohrbach, 217 Kan. 588, 538 P. 2d 678; State v. Kress, 210 Kan. 522, 502 P. 2d 827.
We would caution that while, ordinarily, evidence of prior convictions of similar crimes is relevant to prove a specific intent without a showing of the specific facts and circumstances involved in the prior offense, this general rule must be tempered with the requirement of “similarity.” The similarity of offenses is a key factor in relevancy. (State v. Cross, 216 Kan. 511, 532 P. 2d 1357; State v. Masqua, 210 Kan. 419, 502 P. 2d 728; 2 J. Wigmore, Evidence, § 302 [1940].)
To this we add Professor Slough’s observations:
“Though many . . . pat rules of exclusion undoubtedly derive from the experience of generations, no one should insist that any rule, at any time and in all circumstances be accepted as an article of faith. Absolute rules of exclusion, based not upon logic and comprehension of the elements of the individual case, but upon automatic precedent, greatly de-emphasize the importance of originality. . . .” Slough, Relevancy Unraveled, 5 Kan. L. Rev. 1, 13 (1956).
After determining that evidence of other crimes is relevant to prove a material fact which is substantially in issue, the district court must evaluate the prejudicial impact of such evidence under K. S. A. 60-445. The court may in its discretion exclude other crimes evidence if it finds its probative value is substantially outweighed by its prejudicial effect, confusion of the issues or misleading of the jury. (State v. Bly, supra; State v. Davis, 213 Kan. 54, 515 P. 2d 802.)
Where, as here, specific intent is in issue, prior convictions evidencing the requisite intent may be very probative. Here, the prior conviction was for an offense which was a necessary element of proof in the offense charged. It was sufficiently similar to be properly taken into consideration in regard to the intent required for “possession.” We are of the opinion the probative value of this evidence sufficiently outweighs any possible prejudicial effect. The admission of the journal entry of judgment for the prior conviction of possession of a controlled substance without a showing of the underlying facts and circumstances was proper within the district court’s discretion.
The appellant next contends the district court committed reversible error by permitting the state to impeach a defense witness on cross-examination by questioning him about prior convictions of crimes not involving dishonesty or false statement. The contention is without merit.
The appellant’s objection to questioning about the witness’ prior marijuana offense was sustained. The appellant lodged no objection to questions concerning two prior convictions for indecent exposure. Timely, specific objection is required to preserve a point for appeal. (E. g., State v. Horne, 215 Kan. 448, 524 P. 2d 697; State v. Baker, 204 Kan. 607, 464 P. 2d 212; K. S. A. 60-404.)
The appellant next argues that it was reversible error for the district court to permit the state to cross-examine him regarding prior instances in which he possessed drugs when he had not introduced evidence to support his credibility. The point is not well taken.
The appellant testified the drugs found in the car were not his and that he had been unaware of their presence. On cross-examination, he stated he had not examined the drugs found in the car (state’s Exhibits 1 through 7), but knew they did not belong to him because he “don’t have drugs in his possession.” Following this answer, the state, over objection, was allowed to cross-examine appellant about prior instances in which he had possessed drugs. Appellant was questioned about an instance in Missouri in 1972 where he was charged with sale of a controlled substance and convicted of possession of a controlled substance. He was also questioned about an instance in Salina some three months before the instant charge was filed where a police officer, present in the courtroom, had removed “whites” from appellant’s wallet.
While a criminal defendant is privileged to testify in his own defense or to refuse to do so, that privilege cannot be construed to include the right to commit perjury. Having voluntarily taken the stand, the appellant was under an obligation to speak truthfully and accurately. Where appellant went beyond a mere denial of the crime charged and made a blanket denial of ever possessing drugs, the district court, under the facts and circumstances of this case, properly allowed the state to test the truthfulness of his denial. (See Harris v. New York, 401 U. S. 222, 28 L. Ed. 2d 1, 91 S. Ct. 643; Walder v. United States, 347 U. S. 62, 98 L. Ed. 503, 74 S. Ct. 354; State v. Giddings, 216 Kan. 14, 531 P. 2d 445.)
The state’s questions on cross-examination did not seek to prove a bad trait of appellant’s character; rather, they sought to contradict an item of appellant’s testimony that was relevant to an issue in the case. For an excellent discussion on the distinction between these two modes of impeachment, see 3A J. Wigmore, Evidence, §§ 977-988, 1000-1046 (Chadbourn rev. 1970). We find no abuse of discretion by the district court in weighing the probative value and prejudicial effect of this evidence and allowing its admission. (K. S. A. 60-445.)
Finally, the appellant contends the verdict of the jury finding him guilty of possession of amobarbital with intent to sell was not supported by the evidence. We disagree. "
In considering the sufficiency of evidence to sustain a conviction, this court does not weigh the evidence; it merely ascertains whether there is a basis in the evidence for a reasonable inference of guilt. If the essential elements of the charge are supported by any competent evidence, the conviction must stand. (E. g. State v. Baker, supra; State v. Soverns, 215 Kan. 775, 529 P. 2d 181.)
Possession and intent, like any element of a crime, may be proved by circumstantial evidence. (See State v. Gander, 220 Kan. 88, 551 P. 2d 797; State v. Braun, 209 Kan. 181, 495 P. 2d 1000; State v. Townsend, 201 Kan. 122, 439 P. 2d 70; State v. McConnell, 136 Kan. 30, 12 P. 2d 797; 28 C. J. S., Drugs and Narcotics Supplement, §199 [1974].) An excellent annotation —Conviction of Possession of Illicit Drugs Found in Automobile of which Defendant was not Sole Occupant, 57 A. L. R. 3d 1319 [1974] — is instructive. The better view appears to be that when illicit drugs are found in an automobile containing more than one person, the defendant’s mere presence in the vehicle, without more, would not sustain his convictiorrfor possession. Other circumstances which have been held sufficiently incriminating to link a defendant with illicit drugs in a vehicle are his previous participation in the sale of drugs, his use of narcotics, his proximity to the area where drugs are found and the fact the drugs were found in plain view. While none of these circumstances, by itself, may be sufficient to support a conviction, taken together they provide a sufficient inference of knowing possession to support the verdict.
In the instant case, the evidence viewed in the light most favorable to the state showed that the defendant went to Jimmy Ritkers’ house about 1:00 a. m. on January 25, 1974, and asked for a ride to a local restaurant so he could see his girl friend. Upon getting into the car, Ritkers asked the defendant if he had any drugs on him, and the defendant replied in the affirmative. Ritkers asked him if he wanted to stash them somewhere, and the defendant said no, he would take them with him. Ritkers testified that when he had been in the car the previous afternoon, there were no pills in the glove compartment and no pills or hypodermic needle on the floorboard. When stopped by officers, the appellant appeared “high,” but no alcohol smell was detected. All the drugs were found on the appellant’s side of the vehicle — on the floorboard and in the glove compartment. All the drugs were in plain view. Evidence of the appellant’s prior conviction for possession of a controlled substance was admitted to prove the specific intent required for possession. This evidence supports a finding that the appellant was in possession of the controlled substance.
Guidance on the sufficiency of evidence for intent to sell is provided by 28 C. J. S., Drugs and Narcotics Supplement, § 211 [1974]:
“In order to sustain a conviction for possession of narcotics or dangerous drugs for purpose of sale, there must be sufficient proof of possession of such drugs, and proof that the possession was for the purpose of sale. Such proof may be circumstantial and may consist of evidence as to quantity of the narcotic, . . . place it was found, manner of packaging, and opinion of experts that the narcotic was packaged for sale.” (p. 317.)
The evidence showed appellant possessed 667 tablets containing amobarbital and 616 tablets of other uncontrolled substances. The amobarbital was packaged in five bags each containing 100 tablets and in several other bags containing smaller quantities. Slips of paper with handwritten notations indicating the quantity and strength of the pills were found with the bags. A police officer with seven years’ experience in drug cases gave opinion testimony to the effect that the packaging of the drugs in lots of 100 and the written notations of quantity and strength indicated the drugs were for sale rather than personal use. A forensic chemist testified that amobarbital is distributed to pharmacies and doctors in dosages of 100 and that he had not seen amobarbital distributed to individuals in dosages greater than 25. This evidence provided ample support for a finding of intent to sell.
The judgment is affirmed.
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The opinion of the court was delivered by
Fatzer, C. J.:
This is an appeal from a conviction of burglary in violation of the provisions of K. S. A. 21-3715. The defendant was acquitted of the charge of possession of burglary tools.
Shortly after 3:00 o’clock a. m., June 7, 1974, a report was received by the Wichita Police Department of a burglary in progress at Kilkenny’s Pharmacy, 4004 West Central, Wichita, Kansas. Officers Wattenbarger and Dickerson were dispatched to the location. Officer Dickerson covered the front of the building while Officer Wattenbarger went to the rear.
Officer Wattenbarger used his flashlight to check out the back of the buildings and in so doing, he observed movement behind an air conditioner compressor next to the back door of a shop known as Wigs and Fashion by Darlene. He ordered whoever was behind the compressor to come out. The person who came out was the defendant, William A. Motor. A pair of blue rubber garden-type gloves were removed from the defendant’s hands. Leonard A. Schmidt was apprehended crouched on the floor in the front of a station wagon parked in a lot adjoining Kilkenny’s Pharmacy. Other police officers, who had arrived, apprehended Michael D. White and William D. Killion in the building.
The police investigation revealed that the back door to the wig shop was broken and that a hole had been knocked through the concrete party wall separating the wig shop and Kilkenny’s Pharmacy. The Wichita Police Department laboratory investigator found a small sledgehammer, an axe, and a .25 caliber automatic pistol lying on the floor of the wig shop. The investigator also found a .38 caliber revolver under the front seat of the station wagon in which Leonard Schmidt was found.
Other facts will be presented in more detail as we discuss the issues to which they apply.
The defendant first contends the district court erred in permitting the state to endorse William D. Killion as a witness for the reason the defendant was given no notice of the state’s intention to do so and he was forced to argue the same without adequate time for preparation and without adequate time to investigate and interview the witness.
It will be remembered that William D. Killion was one of the four individuals apprehended at the scene of the crime. The endorsement was made at the inception of the trial, but before any evidence was received.
The statute providing for endorsing witnesses (K. S. A. 1973 Supp. 22-3201 [6]) reads:
“The prosecuting attorney shall endorse the names of all witnesses known to him upon the information or indictment at the time of filing the same. He may endorse thereon the names of other witnesses as may afterward become known to him, at such times as the court may by rule or otherwise prescribe.”
This court had occasion to consider the last sentence of the statute in State v. Blocker, 211 Kan. 185, 505 P. 2d 1099, and stated:
“On several occasions this court has considered late endorsements as they related to the foregoing statute [K. S. A. 1971 Supp. 22-3201 (6)] and its predecessor, G. S. 1949, 62-802. From our decisions the rule has evolved that permission to endorse additional names on the information during trial rests within the sound discretion of the trial court and its ruling will not be disturbed in the absence of abuse — the test being whether the defendant’s rights have been prejudiced. . . .” (1. c. 188.)
See, also, State v. Price, 215 Kan. 718, 722, 529 P. 2d 85, 88.
In State v. Poulos, 196 Kan. 287, 411 P. 2d 689, cert. den. 385 U. S. 827, 17 L. Ed. 2d 64, 87 S. Ct. 63, we further examined the meaning of “prejudice” and stressed the burden of proof to be carried by one objecting to any late endorsement:
“We have also held that endorsement of additional names on an information, even during a trial, rests within the sound judicial discretion of the trial court and where such endorsement has been permitted material prejudice to the rights of the defendant must clearly be shown before it will constitute reversible error. . . .” (1. c. 291.)
It would appear from an examination of the record that the district court was careful to protect the rights of the defendant against prejudice. The record reveals the following with respect to this matter:
“The Court: Well, he [Mr. Killion] will be available, as I understand it, 9:00 o’clock in the morning.
“Mr. Sherwood: That’s correct, Your Honor.
“The Court: For interview with Mr. Garrity. And in the event, Mr. Garrity, you feel you need any additional time, then we will be glad to give you any appropriate recess necessary to protect the interest of your client.
“So with that then, I can see no prejudice resulting. The endorsement is allowed.”
The record does not disclose any request for additional time. We fail to find any prejudice to the rights of the defendant.
The defendant contends the district court erred in admitting into evidence a pair of rubber gloves which were taken from the hands of the defendant at the time of his arrest.
Counsel for defendant viewed the evidence pertaining to the case on two occasions. The gloves had been placed in defendant’s boots which had also been taken as evidence, and were not found at the time of counsel’s examination. The defendant contends the state was dilatory in telling defense counsel that the gloves had been located. He claims no prejudice. In fact, counsel had ample time to examine the gloves before they were introduced into evidence.
The district court gave counsel for defendant an opportunity to attack the credibility of the state’s chain of custody in his case in chief. The weight of the evidence was a question of fact for the jury.
The defendant further contends the information as filed and upon which the case was tried did not state the offense specifically enough to enable the defendant to prepare his defense.
The defendant would appear to contend the information should have charged him with aiding and abetting the burglary rather than with the commission of the substantive offense. He made no objection before proceeding to trial. He made no attack on the information prior to his conviction. He filed no motion for a bill of particulars as authorized by K. S. A. 1973 Supp. 22-3201. He is hardly in a position to complain at this stage of the proceedings. (State v. Cory, 211 Kan. 528, 506 P. 2d 1115.)
Moreover, the defendant’s contention is not found under the substantive law. K. S. A. 21-3205 (1) reads:
“A person is criminally responsible for a crime committed by another if he intentionally aid, abets, advises, hires, counsels or procures the other to commit the crime.”
This subsection of the revised Kansas Criminal Code took the place of K. S. A. 62-1016 which read:
Any person who counsels, aids or abets in the commission of any offense may be charged, tided and convicted in the same manner as if he were a principal.”
The court is of the opinion there is very little, if any, difference in the meaning of the language used in the two sections. In considering the latter section, we held in State v. Ogden, 210 Kan. 510, 502 P. 2d 654:
“One who counsels, aid or abets in the commission of any offense may be charged, tried and convicted in the same manner as if he were a principal.” (Syl. para. 1.)
The defendant challenges the sufficiency of the state’s evidence to support the verdict.
The state’s evidence established that the wig shop was in fact burglarized; that the owner, Darlene Thomas, had not given anyone authority to break in the back door and enter her establishment; that a hole had been battered in the party wall joining the wig shop and the pharmacy next door and that two individuals, Michael White and William Killion, were apprehended inside the building. The defendant was found crouching behind an air conditioner compressor located behind the wig shop from which a window had been broken. When apprehended, the defendant was wearing a pair of rubber gloves. Inside the wig shop, along with the two other men, a sledgehammer, an axe and a pistol were found.
In State v. Ritson, 215 Kan. 742, 529 P. 2d 90, the court stated:
“This court has long followed the rule that 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 when viewed in the light most favorable to the state. The most recent enunciation of the rule will be found in State v. Platz, 214 Kan. 74, 519 P. 2d 1097. In determining the sufficiency of the evidence, this court looks only to the evidence favorable to the decision, and if the essential elements of the charge are sustained by any legally admitted evidence the conviction will stand. (State v. Taylor, 212 Kan. 780, 512 P. 2d 449.)” (1. c. 744.)
We are of the opinion the evidence amply satisfied the requirements of the rule stated.
Other contentions made by defendant have been examined and found to be without merit. Their discussion would add nothing new or helpful to the case law of this state.
The judgment is affirmed.
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Per Curiam:
This action seeks to obtain possession of a Cadillac coupe or, in the alternative, to recover its value. The trial court entered summary judgment for the plaintiff (sometimes referred to herein as Motors) in the sum of $5,800.00 as representing the value of the car, plus interest from September 2, 1972. The defendant, Glenn E. Richardson, has appealed.
In its petition, the plaintiff alleged that it owned the Cadillac car which was worth $6,000.00; that about September 27, 1973, it demanded possession thereof from Dr. Richardson; that the demand was refused: and that Richardson unlawfully detained the car. In response, the defendant denied these specific allegations.
By way of background, it appears from defendant’s answers to interrogatories that he bought the car on a weekend from a dealer who gave him a bill of sale and told him the title certificate was in the bank and would be delivered when the bank opened. The certificate was never delivered as promised, the dealer flew the coop and Richardson later sued the Motor Vehicle Department together with the vanished car dealer. As a result of that lawsuit a certificate of title was issued to him.
Dr. Richardson demanded trial by jury and the court set the case for trial on March 26, 1975. Eight days prior thereto Motors filed a motion for summary judgment to which were appended a memorandum of law and two exhibits, one being a purported photocopy of a Minnesota certificate of title, the other being a copy of plaintiff’s demand for possession of the car. On the date set for trial the court took up the motion for summary judgment, gave defendant a number of days to respond thereto and continued the jury trial.
Subsequently, the trial court sustained plaintiffs motion for summary judgment. The journal entry, prepared by plaintiff at the court’s direction, contained findings of fact to which the defendant objected at the time, as being unsupported by the record.
Two points are presented on appeal: The trial court erred in sustaining Motors’ motion for summary judgment (1) because the same was not timely filed and (2) because there were unresolved controlling issues of fact. Point two will first be considered.
Rules governing the entry of summary judgment are spelled out in Brick v. City of Wichita, 195 Kan. 206, 403 P. 2d 964, where the court held:
“Where a motion for summary judgment is sought, the provisions of K. S. A. 60-256 (c) authorize the judgment to 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.” (Syl. 1.)
Brick has frequently been cited in subsequent opinions, and its precepts have uniformly been followed. The case of Kern v. Miller, 216 Kan. 724, 533 P. 2d 1244, is illustrative:
“Summary judgment is authorized in K. S. A. 60-256. We have repeatedly stated that in accord with subsection (c) thereof, before a motion for summary judgment may be granted the record before the court must show conclusively that there remains no genuine issue as to material fact, ... A court should never attempt to determine the factual issues on a motion for summary judgment, but should search the record for the purpose of determining whether factual issues exist. . . .” (p. 727.)
K. S. A. 60-256 (c) provides 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 there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. It is defendant’s position that two issues of fact remained undecided when summary judgment was rendered: (1) ownership of the automobile (defendant pointing out that in replevin actions the plaintiff must recover on the strength of his own title, not the weakness of his adversary’s, Rauh v. Dumler, 170 Kan. 698, 702, 228 P. 2d 694; Herl v. State Bank of Parsons, 195 Kan. 35, 39, 403 P. 2d 110), and (2) the value of the car as of the date of the alleged conversion.
We believe defendant’s position is well taken. There were no depositions, no affidavits, no admissions on file. Only the pleadings and the defendant’s answers to interrogatories were before the court when summary judgment was entered and those were insufficient, in our opinion, either to establish plaintiff’s title to the car, or to prove its value.
Plaintiff argues that a purported photocopy of a Minnesota certificate of title, attached to the motion for summary judgment, was sufficient to support the court’s finding of ownership, citing K. S. A. 60-460 (q). This statute does not appear applicable, for it relates to original records, not copies. Judge Gard in his authoritative work, Kansas Code of Civil Procedure Annotated, Sec. 60-460 (q), p. 486, says this statute announces a special exception to the hearsay rule by making the original record available to prove, not only the content of the recorded instrument, but also execution and delivery, and is properly limited to instruments such as deeds, wills, mortgages, leases and the like. The statute also requires the court to make certain findings, which it did not do.
Furthermore, K. S. A. 60-461 provides in substance that any writing admissible under 60-460 (q) shall be received only if the offeror has delivered a copy to the adverse party a reasonable time before trial unless the judge finds the latter has not been unfairly surprised. The record contains no showing when, or if, a copy was served on defendant, nor is there a finding that defendant was not unfairly surprised by failure to receive a copy.
Under the provisions of K. S. A. 60-464 authentication of a writing is required before it may be received in evidence. K. S. A. 60-465 governs the authentication of copies of official records and none of its requirements are shown to have been met in this case. The purported copy bears no attestation or certification of any kind. Judge Gard’s commentaries on the foregoing statutes are enlightening and are found on pp. 506-507, Kansas Code of Civil Procedure Annotated, supra.
We proceed to the question of value. The sole reference to value appears in the petition filed by Dr. Richardson in his Johnson County action to obtain a certificate of title. In that case he alleged he paid $5,800.00. However, the record in the case at hand indicates that Richardson’s petition in the Johnson County matter was never placed in evidence in the court below, but was included in the appellate record only because of Motors’ counter designation. Hence there was no evidence before the trial court upon which any value could have been predicated, let alone a value of $5,800.00.
Moreover, while evidence of cost may be admissible on the question of actual worth when property is without market value, cost is only one of the considerations tending to show value, and it is subject to proper rebuttal. (Walker v. Fleming Motor Co., 195 Kan. 328, 332, 333, 404 P. 2d 929, and authorities cited therein.)
Motors had alleged the reasonable value of this Cadillac to be $6,000.00. This was denied by Richardson. Value was thus placed in issue and the defendant was entitled to be heard on the subject, regardless of what it may have cost him. The trial court’s summary action deprived Richardson of any opportunity to be heard as to-value.
In our opinion the trial court erred in rendering summary judgment in this case even though it may have believed the defendant would be unable to prevail upon trial. In Brick v. City of Wichita, supra, we spoke on this subject:
“A mere surmise or belief, no matter how reasonably entertained, that a party cannot prevail upon a trial, will not justify refusing him his day in court with respect to material issues which are not clearly shown to be sham, frivolous, or so unsubstantial that it would obviously be futile to try them. It must be shown conclusively that there is no genuine issue as to a material fact and that the moving party is entitled to judgment as a matter of law. (Ford v. Luria Steel & Trading Corp., 192 F. 2d 880 [8th Cir. 1951].)” (p. 211.)
In view of our decisions as to defendant’s second point of error, we find it unnecessary to discuss his first point.
The judgment of the court below 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 appeal involves three cases filed by seven wheat farmers against the defendant-appellant, Penokee Farmers Union Cooperative Association, for breach of seven contracts- for the purchase of wheat. Recause the same basic issues of fact and law were involved in the actions, they were consolidated in the district court for purposes of trial and they have been consolidated on this appeal.
In case No. 8206 in the district court the plaintiffs-appellees are Arthur Desbien, Stanley Desbien, and Eugene Desbien. We will refer to them as the Desbiens. The plaintiffs-appellees in case No. 8211 are Loren Johnson and Leon Stephen. In case No. 8213 the plaintiffs-appellees are C. N. Clark and Russell Pennington. All of the plaintiffs are voting members of the Penokee Coop. The Coop among its other activities provides a market for wheat grown by the plaintiffs and other wheat farmers in the area. The Coop has in excess of 1200 voting members and operates grain elevators in Hill City, Bogue, and Penokee, Kansas. Clair Summers is the general manager of the Coop and is in charge of all three elevators. Charles Knipp is the manager of the Bogue elevator.
During the year 1973 Penokee Coop entered into contracts with various farmers for the purchase of the farmers wheat at a price specified in the contract subject to adjustments for higher or lower market grades. During 1973 the Coop had difficulty in transporting purchased grain to market because of the shortage of railroad cars to ship the grain. In most instances the farmers entered into contracts with the Coop for the sale of their wheat at the time of harvest or shortly thereafter and in each of the cases involved here the plaintiff sold his wheat at a price substantially less than the market price for wheat which later developed. According to the evidence each wheat farmer had the option of contracting for payment for his wheat by the Coop either during 1973 or deferring payment until the calendar year 1974 for income tax purposes. Each of the plaintiffs selected the deferred payment contract so that payment for his wheat would be in 1974. Because of the difficulties in transportation of the wheat to terminal markets, the deferred payment contract was also of benefit to the Coop. The inability of the Coop to deliver wheat promptly to the terminal markets caused it to have a shortage of money for making payments to the individual farmers.
This litigation arose because of certain provisions contained in each wheat-purchase contract pertaining to the time of payment for the wheat by the Coop. The contract as drawn was ambiguous and it is understandable how the parties could have a bona fide dispute as to its meaning. All of the contracts entered into by the seven plaintiffs were essentially the same. Each contained three clauses concerning the time of payment which were somewhat contradictory. These provisions were as follows:
(1) “It is . . . agreed that the Owner shall receive payment for this grain only after shipment is made to terminal markets.”
(2) “Payment for grain shall be determined by the Purchaser on the basis of the date order of contracts on file with the Purchaser, the oldest outstanding contract receiving priority of payment.”
(3) “In consideration of the above agreement of the Owner to sell this grain, it is agreed between the Owner and the Purchaser that the Owner is to receive payment for this grain on_, 19__”
In each contract the specific date on which payment for the wheat was to be made was handwritten in the printed form by Charles Knipp, the Coop’s Bogue elevator manager. The contracts of Stanley Desbien, Eugene Desbien, Loren Johnson, C. N. Clark, and Russell Pennington all provided that the owner was to receive payment for grain on January 1, 1974. Arthur Desbien’s contract called for payment “on/or January 31, 1974.” Leon Stephen’s contract provided that payment was to be made “after 1-1-74.”
Each contract provided for a date for completion of shipment by the purchaser. The three Desbien contracts provided for a shipment date of March 31, 1974. The contracts of Clark, Pennington, Johnson, and Stephen each provided for a shipment date of January 31, 1974. It is important to note that each contract provided for a payment date prior to the date for completion of the shipment of wheat by the purchaser. These contractual provisions raised questions as to how the contracts should be construed. Under each contract when was the individual farmer to be paid for his wheat — on the designated payment date or not until the grain was actually shipped to a terminal? Furthermore a question arose whether a farmer was entitled to be paid on January 1, 1974, or other payment date indicated, even though the individual farmer had not yet delivered his grain to the elevator. It was these questions which brought about the lawsuit between the farmers and the Coop.
The contentions of the opposing parties should be noted. The Coop took the position that each of the contracts should be construed to require the Coop to pay each individual farmer the contract price of his grain only after delivery of the grain by the farmer to the Coop elevator and after shipment of the grain by the Coop to terminal markets after the “delivery date” specified in each con tract. Each of the fanners maintained that the contract meant just exactly what it said — that they were to be paid by the Coop for their wheat on January 1, 1974, or other payment date specified. Relying upon its construction of the contract, the Coop refused and failed to pay the individual farmers on January 1, 1974, or other payment date expressed in the contract. Each of the plaintiffs construed the Coop’s failure to make payment on the payment date as a breach of his contract. In February 1974 the seven plaintiffs filed suit against the Coop alleging that the Coop had failed to pay the purchase price when due under the contract. Each of the plaintiffs requested a judgment for rescission of his contract or in the alternative sought damages for breach of contract. The Desbiens’ case was filed on February 7, 1974. Approximately one week later Johnson, Clark, Pennington, and Stephen filed similar actions. In each case the Coop filed an answer denying that it had breached its contract. In each of the actions filed by Clark, Pennington, Stephen, and Johnson, the Coop asserted a counterclaim contending that each of those defendants had failed and refused to deliver his wheat to the Coop and that the Coop had suffered damages by reason of breach of contract.
After the cases became at issue, a joint pretrial conference was held. The cases were consolidated for trial and the issues of fact to be determined by the court were stated to be as follows: (1) What are the meanings of these contracts? (2) Have the defendants breached the contracts, and if so, when? (3) Have the plaintiffs, or any one of them, breached the contracts, and if so, when? The original pretrial order was amended to include an additional issue for the court to decide: If there was a breach of contract, what is the measure, amount, and theory of damages, if any? With the cases in this posture they were tried together by the court sitting without a jury.
At the trial the primary witness relied upon by all parties was Charles Knipp, manager of the Coop elevator at Bogue. His testimony was somewhat rambling and frequently contradictory. He was in a difficult position at the trial because obviously his understanding of the intention of the parties to the wheat contract conflicted seriously with the express language used in each contract. The only other testimony offered by the plaintiffs was that of Russell Pennington, Eugene Desbien, and Loren Johnson, all of whom testified as to the price of wheat at the elevators during the first half of February 1974. The defendant Coop called as witnesses Clair Summers, general manager of the Coop and Charles Knipp. Following the trial, the district court made extensive findings of fact and conclusions of law and held generally in favor of all plaintiffs against the Penokee Coop. The trial court found among other things that the Coop had breached its wheat-purchase contract in each instance by failing to make payment to the particular plaintiff on the payment date provided under his particular contract. The court also found that each of the plaintiffs was ready, willing, and able to comply with his obligations under his contract and that he was not at fault. In addition to finding a breach of contract, the trial court held that the defendant had been guilty of conversion of each plaintiffs wheat and awarded damages to each plaintiff on a theory of conversion, based upon the value of the plaintiff’s wheat, as of the date of the filing of his petition in February 1974. The trial court also entered judgment in favor of the plaintiffs, Johnson, Stephen, Clark, and Pennington, on the Coop’s counterclaim.
The Penokee Coop has appealed to this court challenging numerous findings of fact and conclusions of law made by the trial court. The defendant Coop has raised 20 points on appeal in cases No. 8206 and 8313 and nine additional points in case No. 8211. All of these various points have been logically grouped and presented to the court'under three categories: (1) Errors pertaining to construction of the contracts; (2) errors pertaining to the findings of the court relating to the performance or breach of the contracts; and (3) errors pertaining to the damages awarded to each plaintiff. At the outset it is important to recognize that there are two distinct types of transactions involved in these cases. First, the three contracts involving Stanley, Eugene, and Arthur Desbien show on their face that the wheat being purchased by the Coop was already delivered and in the Coop elevator at the time of execution of each contract. In each of the Desbien contracts there is set forth the storage charge due to the Coop from the date the wheat was delivered to the elevator up to the date of the contract. The second type of transaction involves the contracts of Johnson, Clark, Pennington, and Stephen. None of these four plaintiffs ever actually delivered his wheat to the Coop elevator and delivery had not been made at the time of trial or at the time the case was argued on appeal in June 1976. In resolving the issues raised on this appeal, it is necessary that we keep in mind this distinction between the Desbien contracts and the contracts of the other four plaintiffs.
The first basic point of error raised on the appeal by the Penokee Coop is that the trial court erred in construing each of the contracts to require the Coop to make payment for the wheat on the “payment date” specified in each contract. On this point we have concluded from a careful consideration of the language of the contracts and the testimony presented at the trial, that there is substantial competent evidence to support the findings of the trial court that the Penokee Coop was required under each contract to pay each individual plaintiff for his wheat on January 1, 1974, except Arthur Desbien whose contract had a payment date of January 31, 1974. In our judgment the trial court correctly applied the recognized rules for the construction of contracts applicable in cases of ambiguity. Where the provisions of a written instrument are clear and unambiguous, there is no occasion for applying rules of construction. (Fast v. Kahan, 206 Kan. 682, 481 P. 2d 958, 62 A. L. R. 3d 1157.) Here however, an examination of each of the contracts involved reveals a sufficient ambiguity and conflict in provisions to justify the use of the established rules of construction.
In construing each contract we must look to the contract as a whole and interpret it so as to ascertain the intention of the parties and to give effect to that intention, if it can be done consistently with legal principles. (Garvey Center, Inc. v. Food Specialties, Inc., 214 Kan. 224, 519 P. 2d 646.) Another rule of construction is that an ambiguous contract will be construed strictly against the party who drew or prepared it and liberally toward the other party. (First National Bank of Lawrence v. Methodist Home for the Aged, 181 Kan. 100, 309 P. 2d 389; Green v. Royal Neighbors of America, 146 Kan. 571, 73 P. 2d 1.) It is undisputed in this case that the printed form of contract was prepared by the Coop and that the blank spaces in the printed form were filled in by Charles Knipp, the Coop’s assistant manager. Furthermore, where part of a contract is printed and part of a contract is handwritten or typed by filling in blanks in the printed form, handwritten or typed words will control over the printed part. (Hickey v. Dirks, 156 Kan. 326, 133 P. 2d 107; Nance v. Mullikin, 131 Kan. 828, 293 Pac. 490.) This” rule of construction has also been adopted in K. S. A. 84-3-118 which states specifically that “handwritten terms control typewritten and printed terms, and typewritten control printed.” In ambiguous contracts where there is uncertainty between the general and the specific provisions relating to the same thing, the specific provisions ordinarily qualify the meaning of the general provisions, the reason able inference being that the specific provisions express more exactly what the parties intended. (Smith v. Russ, 184 Kan. 773, 339 P. 2d 286.) In each contract now before us a specific payment date, January 1, 1974, or January 31, 1974, is handwritten in the printed form, and under these rules of construction, it should control the more general provisions contained in the printed form.
One other rule of construction should be considered. Where the terms of a contract are ambiguous, but such terms have been construed and acted upon by the parties themselves, such construction will be adopted, even though the language used may more strongly suggest another construction. (Brick Co. v. Bailey, 76 Kan. 42, 90 Pac. 803.) At the trial of this action Charles Knipp, although inconsistent at times, testified as to his understanding in regal'd to the date of payment which was placed in each contract. Concerning the contract entered into between the Coop and Stanley Desbien, Knipp testified in substance that at the time the contract was entered into on the 10th day of August, there was a doubt that the Coop would have that grain shipped by the 1st of January on account of the rail situation but they went ahead and drew up the contract. The Coop knew they were in trouble getting cars and thought maybe by then some relief would be in sight and the Coop could probably-or-possibly get it out by the 1st of January. On that basis a payment date of January 1, 1974, was written into the contract. In regard to the provision in the contract that payment was not to be made until the wheat had been delivered at the terminal, Mr. Knipp freely admitted that the Coop did not keep track of whose wheat was shipped to the terminal markets. Because all of the wheat received from the various farmers is commingled, Knipp had no way of knowing whose wheat had been shipped and whose hadn’t. Applying the rules for construction of ambiguous contracts and considering the testimony in the record, it is clear to us that the trial court had a substantial evidentiary basis for its conclusion that each of the contracts should be construed so as to require the Penokee Coop to pay to each one of the farmer plaintiffs the amount due for his wheat on the payment date specified in each contract. We cannot say that the trial court erred in construing each contract in this manner.
The second basic point raised by the Penokee Coop on this appeal is that the Coop did not fail to perform or breach its contract with each individual plaintiff. Having concluded under the first point that the payment date written into each contract was binding upon Penokee Coop, it becomes quite obvious that the Coop breached each of the seven contracts by its failure to make payment for the wheat on the specified payment date. In regard to the three Desbiens, their wheat had already been delivered to the Coop elevator at the time each contract was executed. Each of the Desbiens had fully performed his part of his contract and all that remained to be done was for the Coop to pay for the wheat on January 1, 1974, the date of payment prescribed in the Stanley Desbien and Eugene Desbien contracts, and on January 31, 1974, the date of payment specified in the Arthur Desbien contract. Since the Coop did not make payment to each of the Desbiens on the date payment was to be made under his contract, it is clear that the Penokee Coop breached each of the Desbien contracts.
The situation involving the contracts of Clark, Johnson, Pennington, and Stephen is complicated by the fact that none of those plaintiffs delivered his wheat to the Coop prior to the payment date. This raised an issue as to the willingness of each of these four plaintiffs to perform under his contract. The trial court found that Knipp never informed or instructed these four plaintiffs to deliver their wheat to the Coop elevator. There is some conflict on this point in the record but there is evidence in the record to support this finding by the trial court. There is also substantial evidence that these plaintiffs frequently asked Knipp if they should deliver their wheat and Knipp told them that they could but that the Coop did not have sufficient money to pay them for the wheat. We believe there is evidence to establish that each of these four plaintiffs (Clark, Pennington, Johnson, and Stephen) was ready, willing, and able to perform under his contract. The Coop on the other hand was not ready to perform and never did perform by tendering payment on the payment date. Under the circumstances we cannot say that the trial court erred in concluding that the Coop had breached these contracts by failing to make payment for the wheat on the date specified in each contract.
The third point raised on the appeal is that the trial court erred in the amount of damages which it awarded to each plaintiff in this case. The district court concluded that the Penokee Coop converted the wheat of each of the plaintiffs and awarded each plaintiff damages based on a theory of conversion for the market price of the wheat on the day of the conversion, which varied as between the individual plaintiffs depending upon the date demand was made for payment of the wheat. We have concluded that the district court was in error in finding that the Coop had wrongfully converted the wheat of the plaintiffs and in using the measure of damages which it applied in the case. Under this point we will consider separately the three contracts made by the Desbiens where the plaintiffs had delivered the wheat to the Coop elevator at the time it was sold to the Coop. We will then consider the measure of damages applied by the court in the cases involving Clark, Pennington, Johnson, and Stephen where the farmer plaintiffs never did deliver the wheat to the Coop elevator.
We shall first consider whether the trial court erred in finding that the Coop wrongfully converted the wheat of the three Desbiens. We have concluded that no conversion of the Desbiens’ wheat took place. A conversion has been defined as an unauthorized assumption and exercise of the right of ownership over goods or personal chattels belonging to another- (Nelson v. Hy-Grade Construction & Materials, Inc., 215 Kan. 631, 527 P. 2d 1059; Watkins v. Layton, 182 Kan. 702, 324 P. 2d 130.) In this case the evidence was undisputed that the three Desbiens sold to the Coop the wheat which had previously been placed by them in the Coop elevator for storage. Each contract of sale provided that payment should be made for the wheat at the agreed price on a later specified payment date in January 1974 and further provided for the payment of storage, charge from the time the wheat was placed in the elevator for storage until the date of the contract. We have no hesitancy in holding that the Penokee Coop was not guilty of a conversion of any wheat belonging to the Desbiens. The Desbiens clearly had no right of action for conversion against the Coop for the reason that, after they sold their grain to the Coop, none of them had title to the grain or a right to possession of the grain. When the purchase contracts were signed, delivery of the grain by the Desbiens to the Coop had already been completed. Under established principles of law, title to the grain passed from the Desbiens to the Coop immediately upon execution of the wheat-purchase contracts. In regard to the passing of title on the sale of personal property under these circumstances, K. S. A. 84-2-401 provides in pertinent part as follows:
“84-2-401. Passing of title; reservation for security; limited application of this section.
“(3) Unless otherwise explicitly agreed where delivery is to be made without moving the goods,
“(b) if the goods are at the time of contracting already identified and no documents are to be delivered, title passes at the time and place of contracting.”
In this case the evidence is undisputed that the Desbiens as sellers had completed performance with reference to the physical delivery of the goods. The goods had already been identified, were in the possession of the Coop, and no additional documents were required to be delivered. Hence title to the wheat passed at the time and place of contract. The Coop in this case could not be guilty of conversion of the Desbiens wheat. The Coop commingled the Desbiens’ wheat with wheat of its own and that of other customers in the elevator with the full knowledge and consent of the Desbiens. Following execution of the contract and the passing of the title of the wheat to the Coop, the Desbiens had no ownership or right of possession in the wheat which they had sold the Coop. Under the circumstances the plaintiffs Desbien failed to show a conversion of their wheat by the Coop. (McDowell v. Geist, 134 Kan. 789, 8 P. 2d 372; Stewart v. Produce Co., 88 Kan. 521, 526, 129 Pac. 181.)
The mere fact that the defendant Coop did not pay to the Desbiens the purchase price for their wheat on the agreed date of payment did not make the Coop guilty of a conversion of the wheat, since the wheat was sold on credit with payment to be made months after the sale took place. (Lewis v. Metcalf, 53 Kan. 217, 36 Pac. 345.) The Desbiens under the contract were entitled to be paid for their wheat on the agreed day of payment, January 1, 1974, in the case -of Stanley and Eugene Desbien or January 31, 1974, the date of payment specified in the contract of Arthur Desbien. When a buyer of personal property fails to pay the agreed purchase price when due the seller may recover- the agreed price of the goods with interest from the date payment was due until the proper amount is actually tendered to the buyer. (K. S. A. [Weeks 1965] 84-2-709.) The record before us discloses that, following the filing of the first action by the Desbiens, the Coop on February 8, 1974, tendered a check in the amount of $5,088.48 to Stanley Desbien and a check in the amount of $23,850.13 to Eugene Desbien. On February 9, 1974, the Coop tendered a check to Arthur Desbien in the amount of $19,577.86. In each case it is undisputed that the check tendered was the full amount to be paid under the contract on the agreed payment date. Recause the Coop breached the Desbien contracts by failing to- pay the contract price on the date due, each of the Desbiens is entitled to recover interest at the rate of six percent per annum on the amount of the purchase price from the date payment was due to the time the Coop’s check was tendered. With reference to the Desbiens actions for breach of contract, the judgments of the district court should be reversed with directions to the trial court to enter judgment in favor of each of the Desbiens in the following amounts: Stanley Desbien, interest at six percent per annum on $5,088.48 from January 1, 1974, until Februaiy 8, 1974; Eugene Desbien, interest at six percent per annum on $23,850.13 from January 1, 1974, until February 8, 1974; Arthur Desbien, interest at six percent per annum on $19,577.86 from Januray 31, 1974, until February 9, 1974.
We will now consider whether the district court applied the proper measures of damages in the four oases involving plaintiffs Clark, Pennington, Johnson, and Stephen. In each of these cases the plaintiff alleged that he had offered to perform under his contract by hauling his wheat to the Coop elevator but that the Coop had refused to perform by making payment when due and that the contract should be held to be ineffective and unenforceable. It is undisputed that each of these plaintiffs at all times had and still has possession of his wheat. The Penokee Coop never had possession of this wheat at any time. Simply stated, these plaintiffs contend that the Coop was guilty of a constructive conversion of the wheat because the Coop under its contract of purchase asserted title and a right to possession of the wheat and that such assertion of ownership constituted a conversion of the wheat. We do not agree. The Coop never had possession of the wheat and never at any time actually interfered with the individual farmer’s possession of his wheat.
Professor William L- Prosser in his Law of Torts, 4th Ed., Ch. 3, p. 93, concludes that a mere assertion of ownership of personal property does not constitute a conversion of the property. He states:
“The gist of conversion is the interference with control of the property. It follows that a mere assertion of ownership, without any disturbance of possession, or any other interference with the right to it, is not sufficiently serious to be classed as conversion. A sale, an advertisement for sale, or a purchase of the chattel by one who has no right to it, while the owner’s possession remains undisturbed, does not make the defendant a converter. . . .”
In support of his position Professor Prosser relies on Hein v. Marcante et al., 57 Wyo. 81, 113 P. 2d 940; Irish v. Cloyes & Morse, 8 Vt. 30; Jenkins v. Holly, 204 Ala. 519, 86 So. 390; Knowles v. Knowles, 25 R. I. 464, 56 A. 775; Dietzman v. Ralston Purina Co., 246 Or. 367, 425, P. 2d 163. He also cites Richstein v. Roesch, 71 S. D. 451, 25 N. W. 2d 558, 169 A. L. R. 98, which held that the filing and foreclosure of a purported mechanics lien was not a conversion where there was no actual interference with the owner’s dominion over or rights in property. For a more recent oase see Martin v. Sikes, 38 Wash. 2d 274, 229 P. 2d 546, where the subject of conversion by assertion of title is discussed in depth and the court concluded that a mere threat is insufficient to constitute a conversion and that there must be a disseisin of the property or some actual interference with possession to constitute a conversion. Counsel for the plaintiffs have not cited any cases in point to the contrary. We, 'therefore, must conclude from the undisputed evidence that the Coop was not guilty of a conversion of the wheat of Clark, Pennington, Johnson or Stephen.
The trial court held, however, that the Coop by failing to pay the purchase price when due breached the contracts. Under the circumstances the correct measure of damages to be applied was the difference between the market price at the time and place for tender and the unpaid contract price. In some cases incidental damages are also recoverable but they are not involved in this case. This measure of damages is adopted in K. S. A. 84-2-708 and by a number of Kansas cases prior to the enactment of the Uniform Commercial Code. (Neiswender v. Bolen, 113 Kan. 271, 214 Pac. 96; and Rock v. Gaede, 111 Kan. 214, 207 Pac. 323.) It should also be noted that under K. S. A. 84-2-703, where the buyer breaches a sales contract by failing to make payment when due on or before delivery, a seller may retain possession of the goods and resell them and recover damages from the buyer where the sale price of the wheat was less than the purchase price provided for under the contract. (International T. & R. Corp. v. Benscheidt, 141 Kan. 416, 41 P. 2d 737; Hayes v. Cardwell, 107 Kan. 556, 192 Pac. 757.)
The difficulty of the position of the four plaintiffs (Clark, Pennington, Johnson, and Stephen) in this case is that none of them suffered any damages as a result of the breach of the contract by Penokee Coop because the market price of wheat at the time the Coop breached the contracts was nearly double the contract price. Each of these plaintiffs actually benefitted from the breach of contract by the Coop and should have immediately resold the wheat at the higher price when the Coop refused to pay them. In its judgment the trial court awarded each of these plaintiffs damages based upon a theory of conversion and directed each plaintiff to deliver his wheat to the defendant’s elevator after the judgment was paid by the Coop. As pointed out above the measure of damages used was erroneous. Each of the four plaintiffs (Clark, Pennington, Johnson, and Stephen) has possession of the wheat which was to have been sold to the Penokee Coop under each contract. Although none of these four plaintiffs suffered actual damages when the Coop breached its contract, each of these plaintiffs was and still is entitled to resell whatever wheat he has in his possession at the best possible price available and to retain the amount received from such sale.
We have considered the arguments offered by the plaintiffs in their brief that the Coop, having failed at the trial to object to plaintiffs’ evidence of the market value of the wheat, waived any objection to the theory or measure of damages applied by the court in this case. We cannot agree. The measure and amount of damages was specifically made an issue at the pretrial conference and we find nothing in the record to show that counsel for the Coop misled the court or in any way invited or acquiesced in the court’s theory that damages should be based on conversion of the wheat. We find this argument without merit.
Finally we affirm the trial court in its judgment refusing to award damages to Penokee Coop for breach of contract by the plaintiffs Clark, Pennington, Johnson, and Stephen. Since the Coop breached its contract, it cannot recover from them on the contract. We have considered the additional points raised in the briefs of all of the parties and have concluded that each of them is without merit and need not be considered in this opinion. The points which we have decided are determinative of the appeal. The judgment of the district court is reversed and remanded to the district court with directions to enter judgment in accordance with the conclusions set forth in this opinion.
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Per Curiam:
This is an appeal by Bob James (petitioner-appellant) from the trial court’s denial of an evidentiary hearing pursuant to K. S. A. 60-1507 following sentencing and imprisonment after a plea of guilty was entered to a charge of indecent liberties with a child under fifteen. (K. S. A. 38-711 [Corrick].) The sentence was increased to a term of fifteen years to life under the habitual criminal act, K. S. A. 21-107a, now repealed but controlling in the present case.
In his motion the petitioner presents two grounds for post-conviction relief: (1) That two of the three prior convictions which the trial court used in imposing the habitual criminal sentence were constitutionally faulty in that they were obtained without the assistance of counsel; and (2) that the record of the proceedings upon arraignment and acceptance of his plea of guilty does not meet constitutional standards.
The trial court did not appoint counsel and summarily denied an evidentiary hearing. The petitioner has appealed. While the petitioner asked for an evidentiary hearing he does not suggest what, if any, evidence or witnesses might support his claims. On this state of the record the sole question for determination is the sufficiency of the record in question.
On the first point, the three prior convictions presented to the court to invoke the habitual criminal act were: (a) an Oregon conviction in 1950 for contributing to the delinquency of a nine-year-old female; (b) an Oklahoma conviction in 1963 for burglary; and (c) a Washington conviction in 1968 for taking indecent liberties with a six-year-old female.
We have no difficulty in finding that the burglary conviction in Oklahoma could not be used to enhance the criminal sentence because the record is silent as to the defendant’s representation by counsel, the recital being only that the defendant was personally present. (Gideon v. Wainwright, 372 U. S. 335, 9 L. Ed. 2d 799, 83 S. Ct. 792, 93 A. L. R. 2d 733; and Burgett v. Texas, 389 U. S. 109, 19 L. Ed. 2d 319, 88 S. Ct 258.) As to the Washington conviction, the record clearly recited representation by counsel and the legality of the conviction is not questioned.
That leaves only the 1950 Oregon conviction subject to our scrutiny in the light of the United States Supreme Court decisions cited above, and our own precedents. If the record of the Oregon conviction is valid, then the sentence by the Kansas court of fifteen years to life is valid as it is supported by two prior felony convictions as required by K. S. A. 21-107a. If the record of the Oregon conviction is constitutionally insufficient, then there would remain only one valid prior conviction to support the habitual criminal treatment and the petitioner would have to be resentenced for a shorter term.
The Oregon conviction record does not show representation by counsel, but it does show a waiver of such representation which is sufficient to meet due process standards. The record recites the petitioner waived preliminary hearing and was bound over “for action by the grand jury.” He thereafter expressed a desire “to waive action by the grand jury and permit the district attorney to file an information upon the charge and then to have the matter heard and disposed of without further delay.” The record of the petitioner’s appearance in the Oregon District Court shows the following:
“Upon the appearance of the said defendant before the court at this time, and under the circumstances above set out, in answer to questions by the court the said defendant stated he had not consulted an attorney and did not desire to do so and waived his right to have an attorney to advise him in regard to this charge. The defendant was then asked if he fully understood the meaning of the waiver of the indictment by the grand jury which he had signed, to which he replied that he did fully understand that he waived the action by the grand jury and then [and] there consented to being charged on information by the district attorney, whereupon the waiver of indictment was filed and an order made and entered, herein permitting instruction and directing the district attorney to file his information in this case, whereupon the said information was filed and read to the defendant by the clerk of this court, and the defendant was then and there advised that he could take time in which to enter his plea to the said information and the said defendant then and there waived further time and consented to enter a plea without delay, whereupon the court asked the defendant what his plea was and he answered Guilty, and the said plea was thereupon duly entered.
“The court again advised the defendant .that he was entitled to take at least one day before sentence or further proceedings in this case were heard and the said defendant then and there waived further time, whereupon the court asked the district attorney if he had any report as to the facts and circumstances in this case.” (Emphasis added.)
The district attorney then provided sufficient facts and circumstances surrounding the crime to support the guilty plea.
The next day the petitioner appeared in court for sentencing and in response to the question “if he had anything to say in his own behalf” replied that “he hoped for the best.” He stated that he knew of no reason why sentence should not be imposed, and he was sentenced to the Orgeon State Penitentiary for five years.
We consider this record clear and unambiguous. The petitioner urges that the fact the court asked him explicitly if he understood the consequences of his waiving action by the grand jury, and did not ask him if he understood the implications of his waiver of counsel, rendered the record ambiguous. The specific question as to the waiver of grand jury was for the obvious purpose of getting a confirmation of a previous waiver of rights of a more technical character and more subject to misunderstanding than that of merely not wanting an attorney. While there was no specific offer of an attorney and express refusal of such a specific offer, the petitioner’s statement that he “had not consulted an attorney and did not desire to do1 so and waived his right to have an attorney advise him in regard to this charge,” (emphasis added) amounted to the same thing.
Finding the Oregon record of conviction constitutionally sufficient, there were two valid prior conviction records before the lower court to support the habitual criminal sentence imposed.
There still remains the question of the validity of the proceedings upon arraignment and acceptance of his plea of guilty in Kansas. The record shows the statements and questions of the judge prior to receiving the plea of guilty to be comprehensive and entirely adequate, except there was no specific inquiry or finding as to the factual basis for guilt as is now contemplated by K. S. A. 22-3210 (4). This omission is not fatal to the validity of the plea for two reasons. First, we have held that the requirements of K. S. A. 22-3210 which became effective July 1, 1970, are not retroactive. (See Peterson v. State, 215 Kan. 253, 255, 524 P. 2d 740; and Brizendine v. State, 215 Kan. 433, 524 P. 2d 718.) The petitioner was arraigned June 3, 1969, when his plea of guilty was received and judgment entered thereon. His referral to the hospital for psychiatric treatment and sentencing deferral until December 1970, does not make 22-3210, supra, applicable.
Second, strict compliance with K. S. A. 22-3210, even if it applied, is not mandatory if the purpose of the rule is otherwise served. (Trotter v. State, 218 Kan. 266, 543 P. 2d 1023.) Here the record showed that the petitioner said he pleaded guilty because he was guilty; that he told the judge he was a “sick man” and would be behind bars the rest of his life unless referred to a mental institution. Furthermore, he was no stranger to the criminal justice system as he had pleaded guilty to two charges of a similar nature. (See, State v. Reid, 204 Kan. 418, 421, 463 P. 2d 1020; and Trotter v. State, supra.)
The rule of Boykin v. Alabama, 395 U. S. 238, 23 L. Ed. 2d 274, 89 S. Ct. 1709, was announced one day before the petitioner was arraigned in this case and may be applicable here. It is our judgment that the proceedings in this case upon arraignment and the receiving of petitioner’s plea of guilty measured up in all respects to the federal standards made applicable to the states by the Boykin decision, in that the plea was knowingly and voluntarily made with an understanding of the nature of the charge, its factual basis (which facts are recited in the information read to the defendant) and the consequences of the plea. No denial of due process of law is found to exist.
The judgment of the lower court is affirmed.
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The opinion of the court was delivered by
Harman, C.:
This is a negligence case in which the plaintiff’s vehicle was struck from the rear by that of the defendant while plaintiff was waiting to make a left turn at an intersection. A third vehicle involved in the incident made no contact with those of the plaintiff and defendant. In a jury trial both litigants were found guilty of negligence. Judgment was entered for the defendant and plaintiff has appealed.
The collision occurred about 6:10 p. m. on September 17, 1971, on old U. S. highway 75 at its intersection with 93d street, approximately ten miles south of Topeka. The highway at this point ran north and south, was of blacktop construction, two lane, and twenty-two feet in width. The speed limit was seventy miles per hour. Ninety-third street was a county road running east and west, twenty-six feet in width. Immediately south of the intersection U. S. highway 75 was level for a distance of about 350 feet, then it descended downgrade toward a bridge over a creek. North of the intersection a short distance the highway merged southward from four lanes of traffic into two. At the time of the collision it was raining and cloudy but was still daylight.
Plaintiff Robert C. Jones, who lived at Parsons, Kansas, testified he was at the time in question driving his 1964 Buick station wagon, en route to Auburn, Kansas. At Lyndon he had purchased two cases of motor oil which he stacked in the rear of his car, directly behind the driver’s seat and against the side of the left rear door. He then proceeded northward on U. S. 75 and approached the place where it intersected with 93d street, intending to turn left to go to Auburn. About one-quarter mile south of the intersection he turned on his left turn signal lights and looked into his rear view mirror. At that time no one was following him. He applied his brakes and stopped at the intersection, near the center line. The large red taillights on his car which reflected his braking action had recently been checked and were in good working order, according to his testimony. Plaintiff further testified he could not immediately make his turn because traffic from the north, coming off the four lane highway onto the two, was very heavy; he had to wait there with his foot on the brake for what seemed like five minutes; it seemed to him a lot longer than it probably was — he was just estimating — “it was over two or three minutes”; finally it appeared to him there was a break in the southbound traffic so he could make the turn; he looked to the rear through his rear vision mirror and, seeing no traffic, took his foot off the brake to put it on the accelerator; at this time he heard a noise, then he saw a pickup truck with a camper go by on the right side of his vehicle, apparently out of control; the next thing he remembered he was lying with his head on the right floorboard of his own vehicle. He learned later his car had been struck from the rear by defendant’s vehicle. He testified there was room for another vehicle to go around him on the right by traveling partly on the graveled portion of the intersection.
Wayne McCauley, a Topeka resident, testified that at the time in question he was riding as a passenger in his pickup truck driven by his employee, Ralph Hatch. They were traveling north on U. S. 75 approaching 93d street; he had been asleep but awakened because of the sudden deceleration of the pickup; he saw two red taillights dead ahead in their lane of traffic; he saw no turn signals; Hatch swerved the pickup to the right in order to miss the vehicle immediately in front of them; the pickup went by the vehicle, then went into the ditch and eventually turned over. McCauley further testified they were about one hundred to one hundred fifty feet south of the intersection when he first saw the red taillights which turned out to be those on plaintiff’s Ruick station wagon; at this time his driver Hatch was going about seventy to seventy-five miles per hour.
Ralph Hatch, who was twenty-one years of age at the time of the collision, testified that while driving Mr. McCauley’s pickup he noticed plaintiff’s car was “a good ways” ahead of him; he (Hatch) was traveling about fifty or fifty-five miles per hour; when he first saw the vehicle it was at least one hundred yards ahead of him. He further testified: “I try to stay at least two lengths away, you know, if I’m driving a car or pickup or whatever it is, I try to stay at least two lengths of that vehicle that I’m in from another vehicle”; he maintained his distance behind plaintiff’s car but all of a sudden noticed he was closer to it; he did not see any type of lights on plaintiff’s car and when he realized it had slowed down or stopped he hit his brakes; the truck went sideways into the ditch on the right side and when he tried to turn it back toward the blacktop it rolled over. The truck came to rest 150 feet north of the north side of the intersection.
Defendant Carol Spencer, who was Carol Neider at the time of the collision and twenty-two years of age, testified she was driving her 1971 Vega northward on U. S. 75. She was following a pickup truck at a distance of about 150 feet at a speed of sixty-five miles per hour. She had been doing so for about fifteen minutes. The heighth and width of the camper on the pickup made it impossible for her to see over or around the pickup. She first saw plaintiff’s vehicle when the pickup swerved off the road to the right. She took her foot off the accelerator but did not immediately apply her brakes. She saw no lights. When she realized plaintiff’s vehicle was stopped she put on her brakes but her car slid into that of plaintiff and the two remained locked together until they came to rest in a field on the west side of the highway about one hundred feet north of the intersection.
An engineer who specialized in accident analysis testified as to the average reaction time of a motorist to an event and the coefficient of friction on varying kinds of highway surfaces and he answered hypothetical questions based on defendant’s theory of the case.
Two highway patrolmen who investigated the accident shortly after its occurrence testified. They found no skid marks on the highway. The left turn signal on plaintiff’s vehicle was in the down position. The lights on the rear were broken. The officer who particularly investigated the pickup crash testified he attributed inattention on the part of Mr. Hatch, the driver of the pickup, in not noticing what plaintiff’s vehicle was doing as a contributing circumstance of the accident. The rain was not hard enough to cause any problems for normal driving. The point of impact of plaintiff’s and defendant’s vehicles was in the east lane of U. S. 75, just inside the south edge of 93d street. The pickup left the blacktop seventy-four feet south of the intersection.
In defining the issues prior to trial each party charged the other with negligence in several respects. These grounds were submitted to the jury by way of special verdicts in the form of answers to special questions. Of those charged by plaintiff against defendant she was convicted of only one — following another vehicle more closely than was reasonable and prudent having regard for the speed of such vehicle and the traffic upon and conditions of the highway. Upon appeal defendant makes no complaint asi to this finding. Plaintiff was charged with the following grounds of contributory negligence and was found guilty of those italicized:
“(a) Stopping or parking his vehicle in the travel portion of the highway when said stop was not a compelled emergency stop, all in violation of the law of the State of Kansas;
“(b) Failure to keep a proper lookout for other users of the highway including this defendant;
“(c) Failing to keep his vehicle under proper control;
“(d) In obstructing the traveled way of the highway and creating a situation of peril which this defendant could not guard against;
“(e) In failing to give adequate signal;
“(f) Failure to keep a proper lookout to rear;
“(g) Failure to provide adequate vision of rear through the rear window.”
Plaintiff asserts several trial errors in connection with the reception of evidence and in the instructions but we go directly to the overall contention of insufficiency of evidence to support the jury’s findings of contributory negligence.
Subparagraphs (b) and (f) are addressed to failure to keep a lookout to the rear. Generally a motorist has a duty to keep a lookout for other users of a highway and see what there may be within his view which may affect his use of the highway (Jarboe v. Pine, 189 Kan. 44, 366 P. 2d 783). At the time of this accident several statutes specified duties of a driver making a left turn. K. S. A. 1970 Supp. 8-544 (b) prescribed that the driver of a vehicle intending to turn left at an intersection should approach the intersection in the extreme left-hand lane lawfully available to traffic moving in the direction of travel of such vehicle, and whenever practicable the left turn should be made in that portion of the intersection to the left of center. K. S. A. 1970 Supp. 8-547 (a) and (b) provided that no person should turn a vehicle at an intersection unless the vehicle was positioned as required above and until such movement could be made with reasonable safety, and then only after an appropriate signal was given continuously during not less than the last one hundred feet traveled by the vehicle before turning. K. S. A. 1970 Supp. 8-549 prescribed the signals to be given, either by hand and arm or illuminated directional signal devices on front and rear of the vehicle. K. S. A. 1970 Supp. 8-551 provided that the driver of a vehicle intending to turn to the left within an intersection should yield the right-of-way to any vehicle approaching from the opposite direction which was within the intersection or so close thereto as to constitute an immediate hazard. It is a general rule of the road that the driver of a vehicle may assume that others using the street or highway will observe the law and he is not guilty of contributory negligence in acting upon that assumption unless and until he has knowledge to the contrary (Logan v. McPhail, 208 Kan. 770, 776, 494 P. 2d 1191). Another rule to be borne in mind is that a driver must operate his vehicle so that he can safely stop within the distance he can clearly see vehicular traffic ahead (Hill v. Hill, 168 Kan. 639, 641, 215 P. 2d 159).
Plaintiff here complied with the foregoing statutes respecting his contemplated making of a left turn. He was in a position upon the highway where he had a right to be and where the law required him to be for the making of a left turn. There was no traffic device prohibiting or controlling left turns from U. S. 75. He had a right to assume others on the road would obey the rules of the road and to rely on that assumption until he had or should have had knowledge to the contrary. He had a right to assume other motorists would not ignore his presence on the highway and ram him- from the rear. There were 350 feet of level highway behind him before the highway sloped down to the creek. It was still daylight and the rain was not hard enough to interfere with normal traffic. Plaintiff testified his brake lights were working, that he was using his brakes while stopped at the intersection, and his left turn blinker was in operation. The jury exonerated him from a charge of failure to give an adequate signal and he must be deemed to have given that prescribed by statute.
The only direct testimony on the subject of lookout was that of plaintiff. He was familiar with the intersection and had traveled over it many times. He testified that as he approached it he turned on his left turn blinker and looked for traffic behind him while slowing down. He saw none. He looked in his rear vision mirror again before stopping and saw no vehicles in the lane behind him. Then when he thought he could make a left turn safely he looked again and saw nothing. Could his conduct, under all the circumstances, be held to be negligent with respect to keeping a lookout to the rear? The question is to be answered in the light of plaintiff’s duty at the time, keeping in mind that upon appellate review this court accepts as true the evidence, and all inferences to be drawn therefrom, which support or tend to support the findings in the trial court, and disregards any conflicting evidence or other inferences which might be drawn therefrom, and where the evidence in a highway collision is such that reasonable minds might differ on the question of negligence of either of the drivers, the issue is one for submission to a jury (Morris v. Hoesch, 204 Kan. 735, 466 P. 2d 272). The duty of a driver respecting lookout in making left turns arises and is stated usually, although not always, in cases where the left turn is made either in the face of oncoming traffic from the opposite direction or while a driver of a vehicle approaching from the rear is attempting to overtake on the left, neither of which is the situation here.
Both sides cite and rely on language used in Hallett v. Stone, 216 Kan. 568, 534 P. 2d 232. There plaintiff was following a vehicle down a city street and defendant was following plaintiff’s vehicle at a distance of about one-half block. The car in front of plaintiff’s made an abrupt left turn without signaling. Plaintiff stopped her car to avoid hitting the turning car and was struck in the rear by the defendant’s vehicle. Over plaintiff’s objection the jury was instructed that the driver of a vehicle has a duty to keep a lookout to the rear when the movement of his vehicle may affect the operation of a vehicle to the rear. On appeal after a jury verdict for defendant the plaintiff contended there was no evidence to support the giving of the instruction and this court agreed. After noting the absence of a specific “lookout to the rear” statute we did recognize a duty to do so in certain instances: “A motorist does not have the duty, under all circumstances, to keep a lookout to the rear, since he is entitled to rely on the exercise of ordinary care by those approaching from the rear. He may be required to maintain a lookout for a vehicle approaching from the rear when the presence of such vehicle is known, or if he is intending to change his course.” (Syl. para. 1.) We further said that the plaintiff in Hallett did not execute any kind of maneuver which would trigger the duty to look to the rear and the exercise of due care under the circumstances did not require her to do so. We concluded:
“As given in this case the instruction would place a burden on drivers to keep a lookout to the rear at all times, which clearly is not the law. On the facts in this case the instruction is not in accordance with the primary duty of a driver to maintain a lookout ahead, and the right of every motorist to rely on the exercise of ordinary care by the driver behind him.
“Even if it be assumed the plaintiff failed to keep a proper lookout to the rear, that fact played no part whatsoever in causing the accident. Had she been fully aware of defendant Stone’s presence, the plaintiff could not have acted differently. Moreover, since the defendant Stone was a half block behind the plaintiff, the plaintiff could assume the defendant Stone would exercise ordinary care and come to a stop. If there was any negligence in this regard, it could not have been a proximate cause of the accident. It was not a proper issue in the case to be submitted to the jury by an instruction.” (pp. 572-573.)
Our situation appears to be analogous to that in Hallett even though plaintiff here was contemplating a left turn. That movement was never made. The collision occurred while plaintiff was lawfully stopped preliminary to the left turn, as shown by the testimony and the point of impact. Plaintiff did testify as to his looking to the rear and this was uncontradicted, but, as in Hallett, even if he were negligent in this regard, it could not have been a proximate cause of the collision. The die was already cast by reason of the movement of the two vehicles behind plaintiff and there was nothing he could have done to avoid the collision. Our conclusion is the evidence did not justify submission to the jury of the issue of proper lookout to the rear.
We turn next to the submission to the jury of ground (g) of contributory negligence — failure to provide adequate vision to the rear through the rear window. The jury’s finding was obviously based on the stacking of two cases of oil immediately behind plaintiff’s position in the front seat. That which has just been said with respect to plaintiff’s lookout as a proximate cause of the collision is applicable. Beyond this, the only evidence on the subject, aside from a photograph of plaintiff seated in his car in front of the oil, was plaintiff’s testimony that he had both an outside and an inside rear vision mirror which he used and by which he could see to the rear. An inside rear vision mirror is ordinarily positioned so that a view through the rear window may be had despite two cases of oil stacked next to the left rear door, as were plaintiff’s, and that appears to be the situation as indicated by plaintiff’s photographic exhibit. Again it must be held there was insufficient evidence to submit this ground of negligence to the jury.
The fourth ground of negligence found by the jury, subparagraph (d), was obstructing the traveled portion of the highway and creating a situation of peril which this defendant could not guard against. This ground is closely akin to that in (a) of defendant’s charges of contributory negligence, which was based on K. S. A. 8-570 (a) (Corrick 1964) providing:
“(a) Upon any highway outside of a business or residence district no person shall stop, park, or leave standing any vehicle, whether attended or unattended, upon the paved or improved or main traveled part of the highway when it is practical to stop, park, or so leave such vehicle off such part of said highway, but in every event a clear and unobstructed width of at least twenty feet of such part of the highway opposite such standing vehicle shall be left for the free passage of other vehicles and a clear view of such stopped vehicle be available from a distance of 200 feet in each direction upon such highway.”
Over plaintiff’s objection the jury was instructed as to the foregoing statute and much of defendant’s questioning both upon cross-examination of plaintiff and direct examination of defendant’s accident expert, again over plaintiff’s objection, was premised upon the assumption plaintiff was “parked” on the highway in violation of the statute, in lieu of which plaintiff should either have “parked” off the highway or foregone his turn at this particular intersection. We do not believe this statute was ever meant to be applied to a motorist who temporarily stops his vehicle on the roadway for the purpose of making a legal left turn, and we so hold. The issue was dealt with in a similar situation in Smith v. Engel, 206 Kan. 298, 477 P. 2d 937. There the defendant was traveling on the inside lane of a four lane highway upon which each pair of lanes was separated by a fourteen foot concrete median strip except at crossover points. Defendant had pulled into a cross-over to make a left turn. There was evidence her car protruded back two feet into the ■traveled portion of the lane from which she was turning. She was there for a period of twenty to thirty seconds with her turn signal on, waiting for oncoming traffic to clear, when she was struck from the rear by the vehicle in which plaintiff was riding. On plaintiff’s behalf it was urged defendant could be held to be stopped or parked in violation of K. S. A. 8-570 (a) because her vehicle protruded two feet into the lane of traffic. This court held the statute inapplicable and ruled as a matter of law that defendant was not negligent. We noted it was legal for defendant to make a left turn at that particular point and to do so would necessitate some protrusion of the rear of her vehicle onto the traveled portion of the highway. Although the highway was four lane there and is two lane here, we think the principle in Smith is applicable. Each driver was stopped in a traffic lane waiting to make a left turn safely. The evidence did not justify submission of this ground of negligence to the jury and the judgment for defendant must be set aside.
The result is plaintiff stands absolved of contributory negligence while defendant remains convicted of one ground of negligence. Accordingly the judgment is reversed with directions to enter judgment for plaintiff on the issue of liability and to retry the separate issue of damages.
approved by the court.
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The opinion of the court was delivered by
Miller, J.:
This is an interlocutory appeal by the state from a ruling made by the trial court striking the testimony of two prosecution witnesses. The sole question presented is whether the trial court abused its discretion.
There was an attempted armed robbery and aggravated battery at a Topeka liquor store on April 23, 1975. Gary A. Wilkins, the appellee herein, was arrested and charged with the crime. A jury trial was commenced on September 1, 1975. The defense was alibi. The state called three witnesses to identify the defendant as the perpetrator of these crimes. The victim, Hugh Harkin, identified the defendant as his assailant. Michael Noyes testified that he saw the defendant entering the liquor store at about the time in question, and later saw the defendant leaving shortly after he heard what sounded like a gun shot. Cluster Morris, who had been with Noyes at the time of the occurrence, was unable to identify the defendant. Roth Noyes and Morris testified that on the evening of the occurrence, they went to the Topeka Police Department and gave signed written statements, including the physical description of the person they saw entering and leaving the store. Shortly after Morris left the witness stand, the prosecutor attempted to recall him. At that time defense counsel requested, and the court ordered, production of the statements of both Noyes and Morris, pursuant to K. S. A. 22-3213 (2). After a recess, during which the state was unable to locate the statements, a mistrial was declared upon motion of the defendant.
A hearing was then held on January 27, 1976, before the trial judge on the question of whether or not the state would be allowed to use the testimony of Noyes and Morris concerning the identity of the defendant, since the state was unable to produce written statements of the witnesses. Counsel for the state advised the court that a search was made of the police department’s files and records, but the written statements of the witnesses were not located. The detectives recalled talking with both Noyes and Morris, but none had a specific recollection of taking statements. The detectives acknowledged, however, that the usual procedure then followed would have been to take written statements from the witnesses, and one detective thought he recalled seeing the statements. The only thing found was a yellow sheet of paper on which one of the detectives had written Mr. Noyes’ name and address and two descriptions, which he believed were the descriptions given him by Noyes. This document was not signed.
At the conclusion of the hearing the court found that Noyes and Morris did make statements to law enforcement officials; that the defendant has a right to these statements under K. S. A. 22-3213 (2); that the failure to produce them would be prejudicial to his right to an effective cross-examination; and that the failure to produce the statements “is not the result of any bad faith on behalf of the state or a willful disregard of the court’s order.” The court conditionally ordered the testimony of the two witnesses stricken from the record of the trial, and ruled that Noyes and Morris could not be called on behalf of the state to identify the defendant unless the statements are found and produced. It is this order from which the state appeals.
The statute, K. S. A. 22-3213 (2) provides in applicable part:
“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 ... of the witness in the possession of the prosecution which relates to the subject matter as to which the witness has testified. . . .”
We have considered this statute several times since its enactment. In State v. Wigley, 210 Kan. 472, 478, 502 P. 2d 819, we referred to the statute as the “Little Jencks Act,” and we held that failure of a trial court to order production of the statement of a prosecution witness was not error in the absence of a timely motion for its production by the defendant. In State v. Stafford, 213 Kan. 152, 158, 159, 515 P. 2d 769 (other portions of the opinion modified and rehearing denied, 213 Kan. 585, 518 P. 2d 136), we held that a police officer called by the state to testify on direct examination as to facts revealed by his investigation is a witness within the meaning of K. S. A. 22-3213 (2), and that the defendant is entitled to the production of any statement or report made by the officer in possession of the prosecution relating to the subject matter of the witness’ testimony. In discussing the act we said:
“K. S. A. . . . 22-3213 is patterned, after the Jencks Act. . . . There are only two differences between our statutes and the federal act: First, the Jencks Act permits the prosecuting attorney to elect not to comply with the court’s order to produce a statement subject to the condition that the testimony of the witness be stricken or mistrial declared; and, second, our act requires production after a witness has testified at a preliminary hearing as well as at trial. Neither of these differences supplies reason for departure from the construction applied by the federal courts. . . .”
In State v. Humphrey, 217 Kan. 352, 537 P. 2d 155, we construed K. S. A. 22-3213 so as to require the state to disclose statements or reports of witnesses, relating to the subject matter about which the witness has testified, where the report or statement is in the possession not only of the prosecutor but of any state law enforcement agency. We said:
“. . . To hold otherwise would enable a county attorney to defeat the purpose of the discovery rule by the simple process of removing statements and reports from his personal file. In view of the importance of such statements and reports in testing the credibility of a state’s witness, we believe that such a requirement will better achieve the purpose of the Kansas Code of Criminal Procedure.” (p. 357.)
Also, in Humphrey, we acknowledged the right of effective cross-examination, where the credibility of a witness can be subjected to exploration, as a part of the constitutional right of confrontation of witnesses.
Subsection (d) of the Jencks Act, 18 U. S. C. §3500, is not included within the Kansas Act, K. S. A. 22-3213; otherwise, the statutes are virtually identical. The excluded provision reads as follows:
“(d) If the United States elects not to comply with an order of the court under paragraph (b) or (c) hereof to deliver to the defendant any such statement, or such portion thereof as the court may direct, the court shall strike from the record the testimony of the witness, and the trial shall proceed unless the court in its discretion shall determine that the interests of justice require that a mistrial be declared.”
The omission has little effect; certainly the omission does not deny to a trial court the authority to strike testimony from the record, or take other appropriate steps when the court’s order and the mandate of the statute are violated. A trial court has inherent power to enforce its orders. State v. Miller, 169 Kan. 1, 10, 217 P. 2d 287; State v. Brady, 156 Kan. 831, 841, 137 P. 2d 206. In so doing the court is required to exercise its sound discretion. As the United States Supreme Court observed in Palermo v. United States, 360 U. S. 343, 353, 3 L. Ed. 2d 1287, 79 S. Ct. 1217, and United States v. Augenblick, 393 U. S. 348, 355, 21 L. Ed. 2d 537, 89 S. Ct. 528, the administration of the Jencks Act must be entrusted to the “good sense and experience’’ of the trial judges subject to “appropriately limited review of appellate courts.”
In United States v. Bryant, 439 F. 2d 642 (D. C. Cir. 1971) an investigative agent had failed to retain a tape recording, allegedly made at the time of the sale of narcotics. The court said:
“. . . [BJefore a request for discovery has been made, the duty of disclosure is operative as a duty of preservation. Only if evidence is carefully preserved during the early stages of investigation will disclosure be possible later.
“In the cases before us, . . . the issue is whether full sanctions for non-disclosure ought to be invoked absolutely, or whether imposition of sanctions ought to depend upon the circumstances of the material’s disappearance.
“. . . An exception for good faith loss of important evidence must not be allowed to swallow the discovery rules, and the burden of explanation on the government must be a heavy one; but criminal convictions otherwise based on sufficient evidence may be permitted to stand so long as the Government made ‘earnest efforts’ to preserve crucial materials and to find them once a discovery request is made.
“. . . [W]e hold that sanctions for non-disclosure based on loss of evidence will be invoked in the future unless the Government can show that it has promulgated, enforced and attempted in good faith to follow rigorous and systematic procedures designed to preserve all discoverable evidence gathered in the course of a criminal investigation. The burden, of course, is on the Government to make this showing. Negligent failure to comply with the required procedures will provide no excuse.
“. . . On remand here the District Court should weigh the degree of negligence or bad faith involved, the importance of the evidence lost, and the evidence of guilt adduced at trial in order to come to a determination that will serve the ends of justice.” (pp. 651, 652, 653.)
On a later appeal after remand, United States v. Bryant, 448 F. 2d 1182 (D. C. Cir. 1971), the court noted that though the record was very clear that the agent made no effort to preserve the tape, and that such extremely negligent conduct would in the future result in the imposition of full sanctions, the conviction .would be affirmed upon the district court’s finding, upon remand, that the tape was almost entirely unintelligible, and would have been of little use to the appellants. Under the balancing approach, considering the unintelligibility of the tape and the very strong evidence of guilt, the convictions were affirmed.
Again in United States v. Perry, 471 F. 2d 1057 (D. C. Cir. 1972) the court adopted a balancing approach, giving broad discretion to the trial court. It held that, even if the trial court found some degree of negligence on the part of the government in the loss of Jencks Act material, if the court found that the risk of prejudice to the defense was slight, it could refuse to impose sanctions. In Perry, the lost material consisted of notes of an independent reporting firm which had taken the testimony of witnesses before a grand jury. In discussing the Jencks Act, the court said;
“Viewed in its proper perspective, the judicial process is a search for truth, not an adversary game, and therefore the Jencks Act is not a mandate compelling the trial judge to strike (or bar) a witness’ testimony when a previously made statement, irrespective of the reason, cannot be produced by the Government. On the other hand, the Government does not necessarily exonerate itself from the penalty of the statute by pleading so-called ‘good faith.’ Instead, the trial judge’s effort must be to see that the defendant has access to previous statements of a witness to the fullest extent possible under the terms of the statute, in order to further the interests of justice in the search for truth. Whether the testimony of a witness is stricken or barred in advance, however, is in the discretion of the trial judge if eliminating the witness’ testimony would restrict the search for truth rather than assist it in the instant and future cases.
“Ordinarily, excluding evidence will assist this search only where the information has been lost or destroyed, negligently or for an unjustified purpose. . . . It is undenied that the United States does not have ‘possession’ of the statement, a fact which alone does not settle the matter. The United States might have ‘elected’ to destroy the statement, which would then have given rise to inquiry as to motive and effect, as to purpose and prejudice. Or it might have acted negligently, and the policy of the statute, the quest for truth, is undercut as much by governmental negligence as by intentional acts of destruction. . . .” (p. 1063.)
In United States v. Principe, 499 F. 2d 1135 (1st Cir. 1974), the First Circuit also adopted the balancing test. It held that a failure to disclose Jencks Act material on the part of the government does not automatically require the striking of the witness’ testimony or a mistrial. The court said that a weighing of considerations is needed to determine the appropriate course.
Krilich v. United States, 502 F. 2d 680 (7th Cir. 1974), was an appeal by petitioner from the denial of his motion to vacate, filed pursuant to 28 U. S. C. § 2255, the federal counterpart to our K. S. A. 60-1507. Krilich was denied access to a report prepared by an Internal Revenue Agent who testified on behalf of the government. The court said:
“. . . Where the government fails to comply with the requirements of the Jencks Act, a conviction should be reversed unless it is perfectly clear that the defense was not prejudiced by the omission. . . (p.686.)
Lewis v. United States, 340 F. 2d 678 (8th Cir. 1965), was a direct appeal from a conviction of a narcotics violation. The trial court had reviewed the Jencks Act material, found nothing in it conflicting with the witness’ testimony and denied defense counsel access to the documents. The Eighth Circuit found this to be error and said:
". . . [I]t is no part of the trial court’s function to speculate as to whether or not an otherwise producible statement under the Jencks Act will be of any use to the defendant for impeachment purposes. . . . The function of the trial court under § 3500, Title 18, U. S. C. A., is limited purely to the question of producibility, i. e. * * * is the document a ‘statement’ under the Act? Does it relate to the subject matter of the witness’ testimony? The use of extrinsic evidence to determine that matter is permissible, and generally the Court should determine the same at a hearing out of the presence of the jury. . . . Once producibility is established the defendant has an absolute right to the statement, or, in the alternative, to have the testimony of the wit ness stricken if the Government refuses to comply, and failure to so order is reversible error. . . .
“. . . [However,] from a consideration of the whole record before us, we think the District Court’s action and conduct in relation to the Jencks Act claim of error here made can only be considered and deemed to be harmless. Appellant’s guilt of the charge as made against him . . . was established beyond a reasonable doubt by competent testimony other than that as given by Witness Hill.” (pp. 672, 684.)
In State v. Solem, 220 Kan. 471, 552 P. 2d 951, we were concerned with the failure of the state to locate and produce an alleged tape recording pursuant to K. S. A. 22-3212 (1) (a). We there held that the failure of the prosecution to locate the tape recording which might have been made did not necessitate, dismissal of the charges against the accused. There was no finding, in Solem, that the recording sought ever existed.
Here we are concerned with written statements of two prosecution witnesses given on the date of the offense to investigating officers, and which statements were lost or mislaid by the state. Those charged with the investigation of crimes have a duty, in the first instance, to preserve evidence during the entire process of investigation, and to that end appropriate rules and regulations should be adopted and enforced by investigative agencies. The statutes mandating disclosure require such preservation.
The trial judge here carefully considered the entire matter. In his remarks he alluded to the taking of the statements; to their loss by the state, and the state’s failure to produce them; to the materiality and importance of the statements; and to the resulting prejudice to the defendant’s right to an effective cross-examination. He emphasized that the order made was conditional, and that it would be reconsidered in the event the statements surfaced before trial. He recognized that the state had yet an eyewitness, the victim, and he denied defendant’s motion to dismiss the charges against him.
A trial court exercising its discretion in ruling upon a motion to strike the testimony of a witness for failure of the prosecution to produce a statement pursuant to K. S. A. 22-3213 (2), should consider why the statement was not produced; if it was lost, the facts and circumstances surrounding the loss; the negligence or fault on the part of the state; the nature, relevance and importance of the statement; the risk of prejudice to the defendant; the essentiality of the testimony to the state; and the other evidence in the case. The administration of the “Little Jencks Act” is thus entrusted to the sound discretion of the trial judges, who must use the “balancing approach” described in the cited cases in determining what sanctions, if any, to apply.
Similarly, where a party to a civil action fails to comply with an order for discovery, we have held that the trial court in the exercise of sound judicial discretion must consider the materiality and importance of the documents not produced, whether the failure to produce is caused by inability, willfulness or bad faith, and whether some available sanction short of dismissal will protect the party seeking discovery. Vickers v. City of Kansas City, 216 Kan. 84, 93, 531 P. 2d 113. In speaking of judicial discretion, we there said:
"Discretion may be defined as the freedom to act according to one’s judgment. Judicial discretion implies the liberty to act as a judge should act, applying the rules and analogies of the law to the facts found after weighing and examining the evidence — to act upon fair judicial consideration and not arbitrarily. (Syl. 4.)
“Discretion is abused only where no reasonable man would take the view adopted by the trial court. If reasonable men could differ as to the propriety of the action taken by the trial court then it cannot be said the trial court abused its discretion.” (Syl. 5.)
The statements of these two witnesses are particularly important and germane to the principal issue in this case — the identity of the assailant. The trial court found them to be highly material, and found that their loss, was indeed prejudicial to the defendant’s right of cross-examination. The testimony of the two witnesses was not essential — though desirable — to the prosecution. We are convinced that the trial judge carefully weighed the equities and did what in his view was just under the circumstances.
Upon a careful consideration of the facts and circumstances disclosed by this record, and with careful application of the principles above discussed, we hold that the able trial judge did not-abuse his discretion in entering a conditional order, striking the testimony of the two prosecution witnesses.
The judgment is affirmed.
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The opinion of the court was delivered by
Kaul, J.:
Defendant-appellant (Gilbert M. Carter) appeals from jury convictions on two counts of felony theft. (K. S. A. 21-3701 [a].) His principal contentions on appeal concern the admission into evidence of a prior theft conviction and a subsequent similar offense for which no conviction had been obtained. De fendant also claims error in the hmiting instruction submitted by the court in¡ connection with K. S. A. 60-455.
In the first count of the information defendant was charged with taking $600 in cash and $381 in credit card receipts from Jim’s Auto Service in Wichita. In the second count defendant was charged with the theft of $300 in cash from Western Auto Store No. 7 in Wichita.
The state’s evidence on count No. 1 consisted primarily of the testimony of Jim Hying, manager of the Apeo Service Station, and Brian Hooks, an employee.
On the morning of June 27, 1973, Mr. Hying finished adding up the station’s previous day’s receipts around 9:40 a. m. He put the day’s receipts in a bank pouch and placed the pouch in his desk drawer which he believed was locked. He then left the station to drive a customer home. Shortly thereafter two of the three remaining employees left the station on errands, leaving Hooks working ¡alone.
Shortly before 10:00 a. m. Hooks went out to the station driveway to wait on a customer. While doing so, he testified he saw the defendant walking toward the station building. After he finished with the customer, and was returning to the building, Hooks passed the defendant who was leaving the station wearing an overcoat that came below 'the knees. Hying testified he returned to the station around 10:05 a. m. and discovered the bank pouch containing approximately $981 in currency was missing from his desk.
Mr. Hying further testified that sometime during the previous month a customer had informed him that a man had been in his office. After being informed Hying immediately returned and checked his desk drawer, but the money pouch had not been taken. Hying testified the man who was pointed out to him by the customer as having been in hisi office was the defendant. He further testified he later observed this same man on June 29, 1973, near a nearby Western Auto store and subsequently identified his picture as that of the man near the store on that date.
The Western Auto store theft charged against defendant in count No. 2 occurred on June 29, 1973, two days: after the service station theft. It appears the Western Auto store was within one block of the service station. Defendant admitted he lived near the vicinity of both alleged crimes. About 9:00 a. m. on June 29, Wayne Hastings, the manager of the Western Auto store, placed $370 in currency in an office drawer. Shortly thereafter the store opened and a man, subsequently identified as the defendant, approached Hastings concerning a merchandise exchange. Hastings referred defendant to Ben Mader, an employee. Mader went into the store office to get a refund slip since a one-dollar credit was due the defendant. Defendant followed Mader into- the office. At this point, defendant told Mader he did not have a sales receipt for his merchandise, so Mader left defendant in the office while he went to confer with the manager. Mader located Hastings, waited ten or fifteen seconds for the latter to finish with -a customer, and began to explain the situation to him. At this point, defendant walked up to Hastings and Mader. Mr. Hastings explained to defendant that a sales receipt was needed unless the exchange was a straight swap of merchandise. Defendant then left the store. A few minutes later, when another customer sought change for a twenty-dollar bill, Hastings went to- the office drawer and discovered the money was missing.
At trial, in the course of the state’s presentation of its case in chief, it offered evidence of a prior similar offense for which defendant was convicted. The information in this prior offense was filed July 24, 1967, charging defendant with grand larceny in the amount of $78 in currency and bank checks which were stolen from Alice H. Christopher at the Phyllis Wheatley Children’s home in Wichita on June 2,1967. The journal entry of judgment was filed on December 7, 1967, and showed defendant’s plea of guilty to the charge and subsequent probation.
Before the information and journal entry of judgment, evidencing defendant’s 1967 conviction, were offered the trial court held a hearing outside the jury’s presence. At the hearing Alice Christopher and her secretary, Loretta Harris, testified in detail concerning the facts underlying the charge and conviction. Mrs. Christopher testified -that she knew the defendant and that while working at the Wheatley home on June 2, 1967, she left her purse in her office during the noon hour and returned to find the money missing from it. Mrs. Harris testified that she saw defendant leaving Mrs. Christopher’s office, while Mrs. Christopher was at lunch, and that she (Mrs. Harris) questioned defendant and defendant told her his name was Johnson.
Defendant objected to the introduction of the information and journal entry on the ground of remoteness. His counsel, Mr. Lewis, argued:
. . This has been some seven years ago and we argue that it is too remote in time to have any probative emphasis or value in this particular proceeding. Now if it were seven months ago, or even as late as a year ago, but not seven years ago. It is too remote in time to make it evidentiary.”
Defendant also strenuously objected to the admission of the testimony of Mrs. Christopher and Mrs. Harris concerning the circumstances of the offense. The trial court sustained defendant’s objection to the testimony of Mrs. Christopher and Mrs. Harris, but did permit the introduction of the information and journal entry.
Later in the state’s case in chief, the court permitted the state to introduce the testimony of Bill Sturn and Richard Fife concerning an incident that occurred on August 8, 1973, in Winfield. On that date Stum was the manager and Fife an employee of a service station in Winfield. Fife testified that he saw defendant drive by the station while Sturn was preparing a bank deposit at his desk in the station. Defendant made a U-turn and drove into the station driveway. Defendant entered the station office and sat at Stum’s desk examining a road map while Fife put some gasoline in his automobile and checked the oil. At this time everyone had left the station, including Sturn and the defendant. Fife further testified that about five minutes later two ladies came to the station and were then followed by the defendant who returned and asked for $2.00 worth of gasoline.
Stum testified that while he was working on his bank receipts in the morning he saw defendant drive up in a red Cadillac convertible; that Sturn put the money in his desk drawer, which he locked, and went out to wait on customers, including the defendant. Defendant went into the station as Stum was leaving and asked if he could use the telephone. Sturn further testified that while he was working on an automobile defendant was sitting on the desk looking at a road map; and that when he (Sturn) came back into the station the defendant asked him how to get to Neo desha. After collecting $2.00 from defendant for gasoline, Stum left the station on an errand. When he returned to the station to go to the bank and make a deposit he discovered the currency was missing and called the police. At the conclusion of the testimony of Stum and Fife defendant’s counsel moved to strike their testimony on the grounds that it was collateral and prejudicial and asked the court to declare a mistrial. The motion was overruled and the court indicated that it was going to advise the jury of the circumstances and that it was going to use all of the elements (60-455) because the court said the testimony put the “whole ball” into this lawsuit and that it was going to explain how the jury should consider the testimony at this time.
The state objected to an instruction which included all of the elements of 60-455 and stated its position to be that the testimony of Sturn and Fife would only go to prove the elements of plan and identity. The court then indicated that it would orally instruct as to plan and identity and again so instruct in writing at the close of the case. At this point, defendant’s counsel lodged an objection which appears in the record as follows:
“Mh. Lewis: I think the Court should instruct the jury with the language of the statute without re-issuing words. I object to the instructions deleting any of the words from the language of the statute.”
The court acceded to the objection of defendant’s counsel and submitted instruction No. 8 pertaining to the prior conviction and the subsequent offense without deleting any of the elements enumerated in 60-455.
Defendant’s position on appeal is untenable for two reasons. First, review on appeal is precluded because we believe the doctrine of invited error is clearly applicable and bars consideration of the issue. Second, review is precluded because, as shown by counsel’s statement, no objection was made by defendant to the giving of the instruction. It is true that we have repeatedly disapproved of the giving of a “shotgun” type instruction under 60-455, but we have never held that the giving of a limiting instruction was clearly erroneous merely because all of the elements of 60-455 were included. (State v. Ponds and Garrett, 218 Kan. 416, 543 P. 2d 967; State v. Collins, 217 Kan. 418, 536 P. 2d 1382; and State v. Masqua, 210 Kan. 419, 502 P. 2d 728.)
Likewise, defendant’s present appeal counsel takes a position inconsistent with the attack made by defendant’s trial counsel concerning the underlying testimony of the Wheatley home conviction. Defendant’s present counsel claims error in the admission of an information and journal entry of a prior conviction without admitting any accompanying evidence of surrounding facts and circumstances. Defendant’s appellate counsel also restates the contention made below that a seven-year-old conviction is too remote to be admissible. Remoteness was the only objection directed to the admission of the Wheatley home information and journal entry at trial. Remoteness in time, standing alone, is insufficient to establish reversible error in the admission of a prior conviction. What was held in the recent case of State v. Cross, 216 Kan. 511, 532 P. 2d 1357, disposes of defendant’s contention in this regard:
“Generally the remoteness in time of a prior conviction, if otherwise admissible, affects the weight of the prior conviction rather than its admissibility. As the time interval between the prior offense and the present offense for which the defendant is on trial lengthens the probative value of the prior conviction progressively diminishes. In determining the relevancy of a prior conviction under K. S. A. 60-455 the matter is left largely to the judicial discretion of the trial judge. However, exercise of that discretion must not be abused. It must be based upon some knowledge of the facts, circumstances or nature of the prior offense.” (Syl. 7.)
See, also, State v. Bly, 215 Kan. 168, 523 P. 2d 397; and State v. O’Neal, 204 Kan. 226, 461 P. 2d 801.
In the instant case the trial court had before it the facts and circumstances underlying the prior conviction and it cannot be said that its decision to admit it over defendant’s objection on the ground of remoteness was an abuse of discretion.
Concerning defendant’s alternative attack on the admission of the prior conviction that it was reversible error to admit the information and journal entry in the absence of underlying facts and circumstances, which is diametrically opposed to defendant’s position taken at trial, we find defendant’s present position untenable. In the first place no objection having been lodged on this ground at trial, the specificity requirement of our contemporaneous objection rule, K. S. A. 60-404, precludes appellate review of this contention. In the recent case of State v. Moore, 218 Kan. 450, 543 P. 2d 923, we were confronted with the same question concerning admission of a prior conviction. There we held:
“A judgment or verdict will not be reversed or set aside by reason of erroneous admission of evidence unless the party objecting to its admission interposes a timely objection which makes clear the specific grounds therefor.” (Syl. 2.)
Defendant now advances the argument that his trial counsel’s failure to object should not preclude review of his point since the state warned the trial court and expressed objection to the admission of the information and journal entry without the accompanying testimony of underlying facts and circumstances. We think this argument ignores the probability that the objection of defendant’s trial counsel to the admission of evidence of surrounding circumstances was a trial strategy decision motivated by trial counsel’s effort at the time to keep matters from the jury which he felt would be detrimental to defendant’s case and helpful to the state. The state, in its brief on appeal, points out that any error in the exclusion of the testimony of Mrs. Christopher and Mrs. Harris was error favorable to the defendant. We are inclined to agree with the state in this regard since the state’s case on both counts relied primarily on circumstantial evidence — no witness actually saw defendant take any money. Such being the case the underlying fact testimony which disclosed modus operandi substantially similar to that alleged in both counts in the instant ease obviously would have aided the state’s case in the eyes of the jury. Defendant’s trial counsel having successfully objected to the underlying testimony, presumably for the benefit of such exclusion, is in no position now to question the exclusion of the testimony in this appeal. Moreover, defendant fails to show on appeal how he was prejudiced by the court’s ruling and, thus, he should not be permitted to obtain review of any errors which he invited the trial court to commit. In this connection, in the recent case of Grimm v. Pallesen, 215 Kan. 660, 527 P. 2d 978, we quoted from Popp v. Popp, 204 Kan. 329, 461 P. 2d 816:
“. . . ‘Where a party procures a court to proceed in a particular way and invites a particular ruling, he is precluded from assailing such proceeding and ruling on appellate review.’ . . .” (p.666.)
In State v. Phippen, 208 Kan. 962, 494 P. 2d 1137, wherein the defendant, at trial, requested that evidence pertaining to a lineup be admitted because, as counsel stated, it would serve a useful purpose and then on appeal defendant attacked the admission of the lineup evidence, we said:
“Appellant not only waived objection to the lineup evidence, she expressly requested its admission as a matter of trial strategy. It is fundamental that a litigant who invites and leads a trial court into error will not be heard on appeal to complain of that action, (citing case.)” (p. 966.)
Beoause of the position taken by defendant at trial, with respect to the testimony concerning the Wheatley home conviction and the 60-455 limiting instruction, we find no error in the trial court’s ruling in either instance.
Defendant also contends the trial court erred in admitting testimony concerning the Winfield service station incident. The defendant’s argument on this point is that since this incident occurred subsequent to the offenses for which defendant was being tried and since defendant had not been convicted of any crime in connection with the Winfield incident, evidence thereof was erroneously admitted. K. S. A. 60-455 does not limit relevant evidence of other offenses to those occurring prior to the charged offenses and for which a conviction had been obtained. We have repeatedly held that relevant evidence of other offenses is admissible, even though occurring after the charged offense and even though defendant had not been convicted or prosecuted for the subsequent offense. (State v. James, 217 Kan. 96, 535 P. 2d 991; State v. Morgan, 207 Kan. 581, 485 P. 2d 1371; and State v. Darling, 197 Kan. 471, 419 P. 2d 836.)
Defendant contends that he was denied effective assistance of counsel at trial. His arguments on this point are directed at trial counsel’s actions with respect to instruction No. 8 and the admission of the background testimony concerning the Wheatley conviotion. Defendant’s trial counsel is an experienced trial attorney. A close examination of the trial record indicates that his conduct at trial was much more likely to have been well thought-out trial strategy rather than failure to recognize the points of law involved. In this case there was considerable evidence of similarity of modus operandi in all of the offenses committed by defendant. In each instance defendant’s method was to arrange a situation where he would •be alone in an office with possible access to the cash drawer, or as in the Wheatley home case, await an opportunity when money would be unguarded and accessible. Counsel foreseeing the impact of such evidence on the case at trial could well have determined that the evidence which he sought to and did exclude would have substantially benefited the state in shoring up its case which was based largely on circumstantial evidence. Before it can be said that a defendant has been denied his constitutional right to counsel, it must clearly appear that the representation afforded him was wholly ineffective and inadequate.
In view of the circumstances, which we have gleaned from the record, we cannot say that defendant’s representation at trial was either ineffective or inadequate.
Finally, defendant complains the verdict was not supported by the evidence. Under our long established rule, the issue on appeal in this regard is not whether the evidence established guilt beyond a reasonable doubt, but whether the evidence is sufficient to form the basis for a reasonable inference of guilt when viewed in the light most favorable to the state, the prevailing party below. A verdict of guilty in criminal cases will not be disturbed if there is substantial evidence, even though entirely circumstantial, from which the jury could draw a reasonable inference of guilt. (State v. Ritson, 215 Kan. 742, 529 P. 2d 90, and cases cited therein.)
Viewing the record before us in the light most favorable to the state, as we are required to do, we are satisfied that there is substantial competent evidence to support the verdict.
The judgment is affirmed.
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The opinion of the count was delivered by
Kaul, J.:
Following a trial to a jury defendant-appellant, Lloyd P. Wasinger, was convicted of attempted burglary (K. S. A. 21-3301 and 21-3715) of the Main Street Grocery in Wichita.
The evidence adduced by the state showed defendant was acting as a lookout man for one Kenneth W. Wertz while Wertz was trying to pry open the front door of the grocery store. Evidence of prior convictions of the defendant for burglary and attempted burglary in 1968 was introduced at trial pursuant to the provisions of K. S. A. 60-455. The admission of these prior crimes into evidence is challenged in defendant’s, first and principal point on appeal despite the fact that the evidence underlying the 1968 convictions showed a modus operandi nearly identical to the case at bar.
In the case at bar the state’s evidence showed that the grocery store in question was closed for business about 6:00 p. m. on January 29, 1974, by the owners, Burt and Ruth England. Mrs. England stayed for an hour to an hour and a half after closing and testified the store was locked when she left.
Later in the evening, at approximately 9 or 9:30, Officers Fred Debes and James Clothier, of the Wichita Police Department, were driving past the grocery store in a marked police car enroute to the detention center with a prisoner. Debes testified 'as they approached the Main Street Grocery he noticed two men standing in front of the, store. One of them had the screen door open and was standing between the screen and the door. The other individual, later identified as defendant, was standing ten to twelve feet south of the front door with his back to the building. He, was positioned so he could see approaching traffic. As the patrol car approached, the man with his back to the building began walking south at a “brisk pace.” Debes testified that as the man walked south he made some kind of motion or gesture, “just waving his left hand” ’and, that within a few seconds after this gesture was made, the man standing in the doorway closed the screen door and began walking south on Main Street.
Debes parked the patrol oar and followed defendant on foot into a cove area of a nearby apartment complex. He testified he stooped down with his flashlight and saw defendants legs behind a tree. He ordered the man to come out with his hands up and defendant complied. Upon being asked what he was doing there, defendant first “said nothing, then he said he was going to see his girlfriend.” Debes described the rest of the conversation he had with the defendant as follows:
“. . . I asked him why he had run from me and he stated he did not run from me. I asked then why are you breathing hard and he said, well, and murmured and said, I was walking.”
Officer Debes stated he did not arrest defendant when he first approached him because “I wasn’t sure what had happened yet.”' Meanwhile, Officer Clothier followed and apprehended the other man who had been at the door of the grocery. He was identified as Kenneth W. Wertz. During a weapons frisk a screwdriver with a five inch blade and yellow handle was taken from the person of Wertz. After Officer Debes returned to the front of the store with defendant, Clothier examined the front door of the Main Street Grocery. He found that the lock and latch had been pried loose from the door. Following this discovery he and Debes placed the suspect’s under arrest and read the Miranda warning to them.
An incidental search of the men was conducted ‘and a pair of gloves was removed from Wertz’ pocket. A subsequent search of the neighborhood revealed that a 1966 green Oldsmobile, registered to Wertz, was parked near the scene of the crime.
After the Miranda warning had been read Debes asked each suspect whether they knew one another. Each said he did not. Defendant denied having been around the building.
At trial, the state called George Love, a police department expert skilled in the examination of tool marks. He testified that the screwdriver recovered from Wertz was the same size and shape as the tool which made the marks on the grocery door, and that the screwdriver could have made the marks. He was unable to make a positive statement in this regard because he was unable to find any good striations for comparison purposes.
After presentation of the state’s evidence the defendant elected not to present any evidence and rested his case.
The first and principal point raised by defendant concerns the admission into evidence of testimony describing defendant’s participation in a prior burglary and the limiting instruction under K. S. A. 60-455 given in connection therewith.
During the presentation of the state’s case, Sergeant George Lux of the Wichita Police Department, was called as a witness. Sergeant Lux testified that he was the complaining witness in a 1968 burglary case involving the defendant and one Ray Brock. Before Sergeant Lux was asked as to the disposition of the case, defendant lodged an objection to Lux’ testimony on the grounds that it was irrelevant, immaterial, and prejudicial to defendant. Counsel was asked to approach the bench and a discussion took place out of the hearing of the jury and the court reporter. After trial, the prosecutor and defendant entered into a stipulation as to what took place in the discussion. The trial court approved the stipulation and it is reproduced in the record on appeal.
The stipulation reveals that in the conference at the bench the prosecution informed the court that Sergeant Lux would describe defendant’s participation in a prior burglary; that the facts would be substantially the same as those in the case on trial; and that the facts would be sufficient to show method of operation and identity under K. S. A. 60-455. It was further stipulated that the testimony of Lux was given in substantially the same form at the defendant’s preliminary hearing.
Defendant’s objection was overruled and Lux was permitted to testify before the jury. In brief, Lux described a middle of the night burglary of an automobile supply store in Wichita. Lux and other detectives had defendant and Brock under surveillance for a time during the late evening of March 15 and early morning of March 16, 1968. The officers followed defendant and Brock and saw them approach the store. The officers took up a position about a block and a half away where they saw Brock at the doorway and defendant leaning on an automobile parked at the curb. When traffic approached, Brock would come to the parked automobile. When the streets became clear of traffic, Brock would return to the doorway. After this procedure had taken place three or four times, Brock and defendant left and went down an alley to the rear of the. store. The officers followed in a few minutes and Brock and defendant were apprehended as they were exiting from a rear window of the store. A tire tool and several screwdrivers were found in defendant’s possession. The officers examined the front door of the store, found that it had been pried and showed a number of well-defined small pry marks. Defendant was charged and convicted of attempted burglary and burglary. The. trial court took judicial notice of the court file and after certain deletions were made the journal entry was admitted into evidence.
The rule of 60-455 is one of exclusion. We have said many times it is to be strictly enforced and that evidence of other offenses or civil wrongs is not to be admitted without a good and sound reason. (State v. Bly, 215 Kan. 168, 523 P. 2d 397.) Pursuant to this philosophy several tests must be satisfied before evidence of other crimes may be admitted. First, the trial court must determine relevancy on a basis of factual similarity; second, it must find that one or more of the elements enumerated in 60-455 are at issue; and, third, the court must balance probative value against prejudicial effect. (State v. Moore, 218 Kan. 450, 543 P. 2d 923.) It is the better practice to conduct a hearing in the absence of the jury to determine the probative value as to one or more of the eight statutory elements to which such evidence has been shown to be relevant. (State v. Moore, supra; and State v. Gunzelman, 210 Kan. 481, 502 P. 2d 705, 58 A. L. R. 3d 522.)
Applying the principles mentioned to the instant case, we find no abuse of discretion on the part of the trial court. There are significant similarities between the two instances of criminal conduct. In both cases, in what appears to have been a preconceived plan, the defendant served as a lookout while his partner attempted to pry open the front door of a business building with a screwdriver. Evidence of the prior crime established a definite method of opera tion and, thus, showed preparation, plan, motive, and intent. (State v. Fabian, 204 Kan. 237, 461 P. 2d 799; and State v. Crowe, 196 Kan. 622, 414 P. 2d 50.)
The crucial issue, in the instant case, is the intent of defendant in his actions in front of the grocery store and in the apartment cove area where he was arrested. If defendant was there “only to see his girl friend” as he claimed, he committed no crime at all. The state, of course, contended otherwise. When an act may be susceptible to two interpretations, one innocent and the other criminal, the intent with which the act is done becomes the critical factor in determining its character. (State v. Nading, 214 Kan. 249, 519 P. 2d 714.) We, think the probative value of the prior conduct evidence in the instant case outweighed any possible prejudicial effect so as to render it admissible within the trial court’s discretion.
Concerning defendant’s complaint of the trial court’s failure to hold a full out-of-court hearing on the admissibility of the prior offense, we find no prejudicial error in this regard. While, as we have previously observed, the better practice is to conduct a full evidentiary hearing out of the jury’s presence, in this case the court, at the abbreviated hearing at the bench, was assured by the prosecutor that the evidence of the facts of the prior offense would show it to be substantially similar, which proved to be the case. The defendant was not surprised since the testimony of Sergeant Lux had been presented in full at defendant’s preliminary hearing. Under the particular circumstances, we find no prejudice to defendant in the manner in which the matter was handled by the trial court.
Defendant also attacks the limiting instruction given by the court under 60-455. However, the record discloses the defendant failed to make a specific objection to the scope of the instruction and, thus, failed to preserve the question for appellate review. In the recent case of State v. Moore, supra, we pointed out the need for a specific objection in this regard. Nevertheless, we have examined the instruction. It limited the jury’s consideration of the evidence to proof of defendant’s motive, intent, preparation, plan, knowledge, and absence of mistake or accident. Since all of these six elements had some bearing on defendant’s intent, the critical issue, we do not find prejudicial error. (State v. Carter, 220 Kan. 16, 551 P. 2d 821; State v. Moore, supra; and State v. Ponds and Garrett, 218 Kan. 416, 543 P. 2d 967.)
Defendant next complains of the prosecutor’s reference in his opening statement to defendant’s criminal conduct on “prior occasions.” In State v. Miller, 204 Kan. 46, 460 P. 2d 564, we said:
“. . . [W]hen evidence of a similar offense committed by the accused is admissible under K. S. A. 60-455, the county attorney may properly make reference to such evidence in his opening statement (State v. Stephenson, 191 Kan. 424, 381 P. 2d 335; State v. Robinson, 125 Kan. 365, 263 Pac. 1081. . . .” (P.48.)
On appeal defendant also complains the prosecutor used the plural in referring to “prior occasions”, but only produced evidence of one crime. We do not raise this apparently inadvertent reference to multiple occasions by the prosecutor to the level of substantial prejudice. Moreover, we find no objection on this ground to the prosecutor’s opening statement.
Defendant also claims the prosecutor wrongfully elicited testimony relating to Wertz’ criminal record and that the prosecutor’s action in this regard constituted misconduct warranting reversal. Defendant’s complaint is directed at portions of the testimony of Officer Clothier concerning the circumstances surrounding the arrest of defendant and Wertz. Defendant’s contentions are without merit for two reasons. First, the record disclosed no objection to the questions or answers to which his point is directed, and, second, defendant initiated the inquiry into Wertz’ criminal record which freed the prosecution to enter the subject. (State v. Stokes, 215 Kan. 5, 523 P. 2d 364; and State v. Schroeder, 201 Kan. 811, 443 P. 2d 284.)
In his next point defendant claims error in the admission into evidence of paint samples, screwdrivers, photographs, and testimony in connection therewith. Here again, we find defendant interposed no objections at trial to the admission of the evidence which he challenges on appeal. Our contemporaneous objection rule bars consideration. Even if the point had been properly preserved defendant’s contention cannot prevail. In State v. Donahue, 218 Kan. 351, 543 P. 2d 962, we held:
“Admissibility of physical evidence is within the sound discretion of the trial court and is to be determined by the court on the basis of its relevance, connection with the accused and the crime charged.” (Syl. 3.)
In the Donahue case articles of clothing were worn by a partner in crime of the accused and were held to have been properly admitted even though the two defendants were tried separately. In the instant case the screwdriver and gloves taken from Wertz were, likewise, properly admitted into evidence at defendant’s trial. Even though the police expert, in the instant case, was unable to positively conclude that the screwdriver taken from Wertz made the pry marks on the grocery door, the testimony pertaining thereto was admissible. Failure to form a positive or absolute conclusion affects only the weight to be accorded the expert’s testimony rather than its admissibility. In State v. Ponds and Garrett, supra, we held:
“Where a weapon found in the possession of a defendant is identified as being similar to one used in the crime, the lack of positive identification goes to its weight as evidence and not to its admissibility.” (Syl. 6.)
Defendant next contends the trial judge stepped out of his impartial role in aiding the prosecutor select and mark exhibits pertaining to the 1968 prior conviction. There is no merit to this contention. The record discloses that when the journal entry of the prior conviction was presented to the court it made reference to other crimes not properly admissible under 60-455. The trial court displayed no partiality when it expedited the receipt of this evidence by informing the prosecutor which portions of the journal entry would be excluded from the jury’s view of the document. Actually, it was the court’s duty to see that the proper deletions were made.
Defendant next claims error in permitting Officer Debes to testify concerning questions put to defendant and answers as to why defendant ran and was breathing hard when a Miranda warning had not yet been given. Here again, we find no objection in the record pertaining to Debes’ testimony on this point. Even if the point had been preserved the statements by defendant were not rendered inadmissible because the Miranda warning had not yet been given. Debes testified when he first approached defendant in the apartment cove area he did not arrest him because he “wasn’t sure what had happened yet” and was not sure that defendant had done anything wrong. At this point the interrogation was not custodial. General on-the-scene questioning as to facts surrounding a crime is not affected by the holding in Miranda v. Arizona, 384 U. S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602, 10 A. L. R. 3d 974. We have recognized the distinction between the investigatory stage of a case and the custodial interrogation which ensues thereafter on a number of occasions. (State v. Frizzell, 207 Kan. 393, 485 P. 2d 160; and State v. Hinkle, 206 Kan. 472, 479 P. 2d 841.)
Finally, defendant claims his right to an impartial, fair jury was prejudiced by the failure of juror Jack Johnson to inform the court on voir dire that he had worked at a part time job with, and was acquainted with, defendant’s nephew, Terrance Wasinger. This matter was not presented to the trial court, but an affidavit of Terrance Wasinger was mailed to the clerk of this court after the record on appeal had been completed. Presentation of the affidavit in this manner is in complete derogation of Supreme Court Rule 6 (m) (214 Kan. xxv). The affidavit fails to qualify as a proper portion of the record on appeal and any issue raised in connection therewith is not subject to review.
We have carefully examined all of the points raised by defendant and find no prejudicial error shown.
The judgment is affirmed.
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The opinion of the court was delivered by
Harman, C.:
Appellant Cletis L. Crowley was charged with the offense of possession of heroin (K. S. A. 1975 Supp. 65-4127a.). After a fourth jury trial he was convicted and sentenced and he now appeals.
The prosecution evidence revealed the following. On September 27, 1973, Detective Fulton of the Wichita police department was advised by a confidential informant that heroin was being sold at a house located in the 1800 block on North Kansas street in Wichita. The informant was unable to give the exact address of the house but stated a Cadillac bearing California license plates would be parked at the house where the heroin allegedly was being sold. Detective Fulton and Detective Ralston drove an unmarked police car to the area about 11:15 p. m. of that day. In the middle of the 1800 block they saw a Cadillac with California plates backed into a driveway. Parked in front of the Cadillac was a green Oldsmobile.
As Fulton drove by the parked vehicles he saw one person in the driver’s seat of the Oldsmobile and at least one person standing in the yard. He stopped the unmarked police car in the next block and the two officers commenced surveillance of the area. A few minutes later they saw the Oldsmobile pull out of the driveway and come south down Kansas toward them. Fulton saw only one person in the car as it went by. Shortly thereafter the Oldsmobile slowed down, veered toward the curb, then straightened out and continued on. The detectives turned around and began following the Oldsmobile. The officers activated red lights and a siren. A high speed chase through the streets ensued. Another officer who had been in radio contact with the two detectives established a road block, which the driver of the Oldsmobile maneuvered through. This officer identified the driver as appellant Crowley. Appellant suddenly stopped the Oldsmobile, got out of it and ran. Detective Ralston saw him throw a plastic bag across the street. Ralston retrieved the bag and with Fulton chased appellant on foot and captured him. Inside the plastic bag were twelve balloons. Laboratory analysis revealed each balloon contained heroin.
Appellant testified he had met Anthony Mathenia, owner of the Oldsmobile, on the night in question. They attempted to locate Milton Butler, who owned the Cadillac parked at the house on North Kansas. Appellant and Mathenia arrived at the house about 11:10 p. m. Appellant did not get out of the car because he sensed an unmarked police car in the area. Mathenia and Butler talked with each other in the front yard. Appellant protested he wanted to go home. Mathenia let him drive the automobile but Butler went along in order to bring the car' back. As appellant drove south toward 16th street he pulled over to the west curb and Butler rolled out of the car. Appellant continued on. As appellant was trying to get the car door solidly closed he noticed the plastic bag between the seat and the door and at the same time noticed the police in pursuit. Appellant testified that he panicked, he tried to evade the police because he needed time to think and then he tried to dispose of the bag when he stopped. He contended throughout that the heroin was not his — inferring it belonged to Butler or Mathenia — he had not known it was there and never intended to possess it. He was then on parole which he feared might be revoked if heroin were found in his possession.
Appellant’s first contention is that bringing him to jury trial a fourth time constituted double jeopardy and cruel and unusual punishment in violation of his constitutional rights. Appellant’s first trial ended when the trial court declared a mistrial because the jury was unable to reach a verdict. At his second trial the prosecution, without laying a proper foundation, presented evidence of appellant’s prior conviction of possession of heroin. Upon appellant’s motion the trial court declared a mistrial because of this error. During the third trial after the jury had been deliberating some time it announced it was hopelessly deadlocked. A poll of the individual members in open court confirmed this fact. Both the state and appellant requested that the jury be sent back for further deliberations. The trial court complied with these requests. After deliberating further for one day plus two- hours and still announcing itself as hopelessly deadlocked and unable to agree on a verdict, the jury was discharged and a mistrial declared.
Appellant’s complaints are bottomed on the fact he did not consent to the order declaring mistrial in the third trial. Consent by a defendant to an order declaring a mistrial is not essential so as to avoid the defense of former jeopardy where mistrial is properly ordered as here. A trial court may declare a mistrial when it finds the jury is unable to agree on a verdict (K. S. A. 22-3423 [1] [d]). Determination of the length of time a jury should be kept together and the probability of agreement of the jurors upon a verdict rests within the sound discretion of the trial court under the facts and circumstances of the particular case (State v. Blockyou, 195 Kan. 405, 407 P. 2d 519). Our rules relating to former jeopardy are now contained in K. S. A. 21-3108 (State v. McKay, 217 Kan. 11, 535 P. 2d 945). So far as material here that statute provides that a prosecution is barred if the defendant was formerly prosecuted for the same crime on the same facts if the former prosecution was terminated without the consent of the defendant after he was placed in jeopardy, except where the termination occurred because it was impossible for the jury to agree on a verdict. The exception applies here. After first announcing it was hopelessly deadlocked the jury was required to deliberate further for more than one day, at which time it announced itself as still unable to agree on a verdict and hopelessly deadlocked. Under these circumstances the trial judge did not abuse sound discretion in declaring a mistrial. Appellants first trial was in February, 1974. His last trial commenced July 22, 1974. Each of the four trials was conducted according to law. These actions by the state did not constitute the infliction of cruel and unusual punishment in violation of the federal or state constitutions.
Appellant asserts the trial court should have declared a mistrial in several instances, as requested, because of various improprieties. One was eliciting, over objection, upon cross-examination of appellants witness Mathenia, of the fact the witness had been convicted of burglary and larceny upon two occasions and of burglary upon another. Burglary and larceny are crimes involving dishonesty and conviction of these olfenses may be shown for the purpose of impairing the credibility of a witness (State v. Price, 215 Kan. 718, 529 P. 2d 85). The intent with which the burglary in the third conviction was committed is not shown in the record. That conviction therefore may or may not have evinced dishonesty. If it did not it was improperly admitted (K. S. A. 60-421). However, if there was error in this regard it was, under the circumstances, nonprejudicial. Similarly, it was of no consequence that the state elicited from the witness Mathenia the fact he was then a resident of the county jail.
Appellant also complains of the following which occurred during the state’s cross-examination of Mathenia:
“Q. Sir, have you ever had any background with drugs?
“Mr. Hilton: To which I object as being incompetent, irrelevant, and immaterial.
“The Court: The objection to the last question is sustained.
“Mr. Rumsey: Your Honor, I know that he has.”
Drug offenses per se do not involve dishonesty or false statement in their commission; hence K. S. A. 60-421 renders convictions for those offenses inadmissible for the purpose of impairing the credibility of a witness (State v. Belote, 213 Kan. 291, 516 P. 2d 159). The question put to the witness was improper and the trial court sustained the objection. That should have been the end of the matter. A lawyer should not under the guise of being carried away in the heat of combat, attempt to place improper matter before a jury. The prosecutor’s comment was improper.
Misconduct on the part of the prosecutor in making unwarranted comments and going outside the record may be so gross and flagrant as to deny an accused a fair trial and require reversal (State v. Murrell, 215 Kan. 10, 523 P. 2d 348; State v. Kelley, 209 Kan. 699, 498 P. 2d 87). We do not think the impropriety here extended so far. The trial judge did admonish the jury to disregard the prosecutor s remark. Moreover, the remark itself may be deemed nonprejudicial in view of the fact appellant was disclaiming ownership of the heroin and instead was asserting it belonged either to Butler or Mathenia. Thus viewed the remark was consistent with appellant’s defense and harmless to him.
Appellant also complains of a prosecution question put on cross-examination of Detective Bullins when the latter was called as a defense witness, as to whether appellant’s name had ever come up in a conversation with one Chester Burney (also a defense witness) in connection with drug traffic. Appellant’s objection to this question was promptly sustained and no answers were given. The question only peripherally concerned appellant at best and no prejudice to him ensued.
Appellant asserts hearsay evidence was improperly admitted. Essentially the attack is against testimony by Detectives Fulton and Ralston that as a result of information given by a confidential informant they went to the 1800 block on North Kansas to investigate the possible sale of heroin. There was no objection to Fulton’s testimony, who testified first, but that of Ralston, who simply repeated what Fulton had said, was objected to. K. S. A. 60-460 provides that 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 with certain exceptions. Testimony is not inadmissible as hearsay evidence when it is not offered to prove the truth of the matter asserted. The testimony of neither detective was offered to prove the truth of the informant’s statement that heroin was being sold at the location in question but only to show the reason for their presence there that night and as such it was admissible (State v. Trotter, 203 Kan. 31, 453 P. 2d 93).
Appellant complains he was twice improperly restricted during his cross-examination of Detective Fulton in an effort to test credibility. The first went to the detective’s testimony that he could see there was only one person in the Oldsmobile as it drove by the unmarked police car, although it was dark and the Oldsmobile traveled directly toward the police car with its lights on. After numerous questions concerning the lighting conditions and Fulton’s ability to see inside the Oldsmobile appellant’s counsel challenged the witness to a demonstration to be held at the particular place under similar conditions to determine whether Fulton could tell how many people were inside cars as they passed. The state’s objection to this question was sustained. This does not amount to prejudicial limitation of cross-examination as argued by appellant. He had ample opportunity, of which he took advantage, to cross-examine Fulton on this aspect. As stated in State v. Parker, 213 Kan. 229, 516 P. 2d 153:
“The discretion of a trial court extends to permitting, restricting, or refusing to allow a protracted cross-examination of a witness covering ground which is useless, irrelevant or previously covered. The extent of cross-examination is a matter generally within the discretion of the trial court and in the absence of a clear abuse of that discretion no prejudicial error results from the exercise of that discretion.” (p. 231.)
Appellant also complains he was not permitted upon Detective Fulton’s cross-examination to elicit the fact that after appellant was arrested, Fulton returned to the Oldsmobile and searched it and in doing so discovered marihuana seed and leaf fragments in between the cracks in the seat of the car. On the basis of this evidence appellant was initially charged with possession of marihuana. This charge was later dropped and formed no part of the trial of this case. Appellant’s theory is that Fulton’s actions which resulted in the bringing of the marihuana charge against appellant, even though Fulton knew the Oldsmobile belonged to Mathenia, demonstrated Fulton was biased as a witness and would go any length to obtain a conviction. We cannot declare abuse of discretion in the court’s ruling foreclosing this examination. The marihuana charge had been dropped and evidence respecting it became irrelevant to any issue remaining in the case. Detective Fulton merely collected evidence from the car and it was up to the district attorney as to whether charges on that evidence should be filed and pursued.
Appellant further complains he was improperly limited in his cross-examination of the police laboratory expert, Kenneth C. Knight, Jr., whose testimony identified the substance in the balloons as heroin, in that he was not permitted to develop the fact another person in the police laboratory had incorrectly identified milk sugar as methadone. Knight did testify at great length about the procedure he used to identify the heroin in this case, the tests he employed and the possibility of error. Appellant had ample opportunity to cross-examine. It was irrelevant that another person in the lab had, in unrelated cases, misidentified unrelated substances.
Appellant contends a statement made by him while in police custody was improperly admitted. The statement was made while appellant was being escorted to a police detention center by the officer who had established the roadblock, and is seen in the following:
“A. The vehicle which he was driving kept missing out and dying; and it approximately reached the river bridge at Maple and McLean Boulevard. I stated to the defendant that I was surprised we ever caught him driving a car like this.
“Mr. Hilton: May it please the Court: At this time, I interject an objection of any conversation with this Officer and the defendant until a proper foundation has been laid.
“Q. (By Mr. Rumsey) What if any reply did the defendant make to your comment about—
“A. The defendant then stated, he said, ‘You never would have caught me if I hadn’t drive such a raggedy, old-shaped car.’ ”
Appellant does not elaborate the basis for his objection, which was overruled, other than the fact an out-of-court Jackson-Denno type hearing was not held prior to receipt of the statement to determine its voluntariness. No such hearing was requested nor was it necessary. Prior to the time of the conversation in question appellant had been given a Miranda warning. Assuming the statement was in some manner incriminating, it was in the nature of a spontaneous exclamation by appellant and not the product of interrogation. In State v. Denney, 206 Kan. 511, 479 P. 2d 820, the defendant was apprehended near a store which had been burglarized. The county sheriff, who had made defendant’s arrest, testified the defendant stated to him, without any questioning or advice of rights, that he had broken into the store. Complaint was made upon appeal of the admission of this statement into evidence without a prior determination of its voluntariness. In holding no error was committed this court pointed out the statement was volunteered (see also State v. Law, 203 Kan. 89, 452 P. 2d 862).
Also, appellant himself testified as to the making of the statement in question, its circumstances and what he meant by it. In this testimony there was no contention or indication of any kind that the statement was involuntary or the result of any coercion or interrogation. Nothing prejudicial resulted from the admission of this testimony.
During the state’s case in chief evidence of appellant’s prior conviction for possession of heroin was received over his objection following an out-of-court hearing. The circumstances of this conviction were shown: A detective entered a motel room in Wichita where he found tinfoil packets of heroin on a table; appellant and a companion were in the room; appellant disclaimed ownership of the heroin packages and stated they belonged to a person called “L. D.”, whose last name he did not know. The conviction was offered and received for its relevance on appellant’s intent, knowledge and absence of mistake or accident, and the jury was instructed accordingly. Appellant, without any argument whatever, reasserts error in all this.
The state points out, and we think properly so, that appellant’s intent in his admitted handling of the heroin, was a crucial issue in the case. Where an act in itself may be susceptible to two interpretations, one innocent and the other criminal, then the intent with which the act is done becomes the critical element in determining its character (State v. Nading, 214 Kan. 249, 519 P. 2d 714). In his opening statement, made immediately after that of the prosecution, appellant put the matter on his intent in issue — he did not know the heroin was in the car until he saw the police; he merely made an error in judgment in attempting to escape and his constructive possession of the heroin was mistaken and without knowledge or criminal intent.
One test which has sometimes been employed in determining relevancy of a prior conviction under K. S. A. 60-455 is that of similarity to the instant charge. Points of similarity do exist here: Each offense was the possession of heroin in numerous small packages; each involved constructive possession; in each appellant contended the heroin belonged to someone else and the other person could not be located. Under this test the previous conviction was properly received. Aside from this, in our recent case of State v. Faulkner, 220 Kan. 153, 551 P. 2d 1247, a drug case involving facts analogous to those here, we permitted evidence of a previous drug conviction to be received on the issue of intent, without any proof of the facts and circumstances of the previous conviction. We think the evidence was admissible here. The trial court properly instructed the jury as to how the conviction should be considered.
Finally, appellant complains, again without argument, that the trial court did not adequately instruct on the requisite element of intent to possess the heroin. The complaint has no merit. The instructions, which were taken substantially from PIK Criminal § 67.01, p. 388, recited that to establish the charge it would have to be proven that appellant wilfully possessed the heroin. K. S. A. 21-3201 (2) provides:
“(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.’ ”
This court has recognized the interchangeability of these terms in connection with instructions on criminal intent (State v. Lassley, 218 Kan. 752, 545 P. 2d 379) and has repeatedly held that the propriety of instructions is to be gauged by their consideration as a whole, each in conjunction with all other instructions in the case. Here, the trial court also instructed the jury on the concept of possession of a narcotic:
“A person is in possession of a narcotic when he has the narcotic under his control or has the right to exercise control over it. The narcotic may be carried on the person or be in his presence and in his custody. The control or right to exercise control may be jointly shared by two or more persons.”
The jury was adequately instructed on the element of intent.
The judgment is affirmed.
APPROVED BY THE COURT.
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The opinion of the court was delivered by
Prager, J.:
This is a direct appeal in a criminal action in which the defendant-appellant, Lawrence L. Daigle, was convicted after a trial to the court of possession of heroin in violation of K. S. A. 1973 Supp. 65-4127a. The facts as disclosed at the trial were essentially as follows: During the morning hours of July 31, 1973, the defendant Daigle drove his motor vehicle to the home of a friend in Wichita. While there he entered the garage for the purpose of picking up certain personal property. The defendant was observed on the property by Beverly Beadles, a neighbor, who with good intentions called the police to report a suspicious person in the block. Beadles gave the police a description of defendant’s automobile. The defendant left the premises and drove to the intersection of Washington and Pawnee Streets where he was stopped by Patrolman Ryder who was on the lookout for the described automobile. At Ryder’s direction defendant drove off the street into the driveway of a furniture store adjacent to the intersection. Ryder suggested to defendant that he return to the home of his friend in order to clear up the prowler report. Defendant did so, and after a short discussion there he was released. Not long thereafter Patrolman Ryder was approached by Raymond Calvin at the intersection of Washington and Pawnee. Calvin informed Ryder that he had observed the defendants car as it pulled into the driveway and saw a brown-paper bag flying from the direction of defendant’s car and landing on the grass near the area where Ryder had previously stopped the defendant’s vehicle. Upon investigation Ryder discovered the paper sack on the ground and upon opening it found inside a syringe, five individually wrapped Trojan brand prophylactics, a torn piece of prophylactic wrapper, and a Trojan brand prophylactic box. Ryder opened the box and found one prophylactic containing a cinnamon-colored substance which was determined to be heroin. Ryder then observed the defendant in the vicinity of this same intersection. He proceeded to place the defendant under arrest for possession of heroin. A search of defendant’s person by Patrolman Ryder yielded $670 in cash, two silver measuring spoons, a billfold, and several individually wrapped Trojan brand prophylactics. Later that same day defendant consented to a search of his car and his house. A search of defendant’s house produced still more Trojan brand prophylactics, printed directions, another torn piece of prophylactic wrapper, and two syringes.
On December 18, 1973, an information was filed in the Sedgwick county district court charging defendant with possession of heroin. Thereafter the case eventually was tried four times. The first trial was before a jury in February of 1974 and resulted in a mistrial when the jury could not agree on a verdict. The second trial was before a jury in May 1974, and again the jury was unable to agree. On August 6, 1974, the defendant appeared in district court with his counsel at a jury trial docket call and voluntarily waived his right to a jury trial. The district administrative judge accepted the waiver and placed the case on the nonjury trial docket for September 3, 1974. The defendant failed to appear for trial on the date set. His bond was forfeited and a warrant for his arrest was issued.
Eight months later on May 1, 1975, the defendant was arrested. The district administrative judge by mistake placed the defendant’s case on the May 12 jury trial docket. When the case was called on that date, the defendant requested a continuance until June 2. At that time the prosecutor reminded the court of the defendant’s prior waiver of jury trial. The court then ordered the case to be set on the nonjury trial docket and continued until May 27. On May 12 the defendant did not object to removing the case from the jury trial docket nor did he request that he be allowed to withdraw his prior jury waiver. Two days later on May 14, 1975, the defendant filed a motion to withdraw his waiver of trial by jury and requested a jury trial. The motion was not heard until May 23 because of compliance with supreme court notice rules and Sedgwick district court procedures. At the hearing on his motion the defendant offered no specific reasons for seeking to withdraw his waiver. The state objected thereto on the grounds that substantial delay would result if the motion was granted. The prosecutor pointed out that some witnesses would not be available in June. The district administrative judge stated that the case had been set on the jury docket by mistake. The judge concluded that the trial would be substantially delayed if not commenced on the day when it was scheduled for nonjury trial and denied the motion.
The case was called on the nonjury docket on May 27, 1975, and trial commenced that day. On May 28 a mistrial was declared before the conclusion of the evidence, and the case was set for a nonjury trial on the following morning. At the conclusion of the fourth trial the district court found the defendant guilty of possession of heroin and this appeal followed.
The only real issue to be determined at any of the trials was whether the defendant had possession of the brown-paper sack and the heroin contained therein prior to the time it was discovered by the police officer on the ground near the place where defendant was stopped by Patrolman Ryder. At the two jury trials the evidence was disputed. Mr. Calvin testified on behalf of the state that he observed officer Ryder directing defendant to pull into the driveway near the intersection and that as the defendant did so a brown-paper sack flew from the direction of the defendant’s car and landed in the grass near the street. In his defense the defendant offered the testimony of Mr. and Mrs. Jack Hanson, who at that time resided in Lawton, Oklahoma. They testified in substance that during the midmoming hours of July 31, 1973, at the intersection of Washington Street and Pawnee Street in Wichita, they observed two young men pitch what appeared to be a brown-paper sack in the grassy area near the intersection. The testimony of the Hansons raised a bona -fide issue for the jury as to whether the defendant Daigle had ever had possession of the sack.
At the fourth trial, in which the defendant was convicted, the state at the last minute came up with some evidence which was ex tremely damaging to the defense. During the fourth trial the assistant district attorney, James E. Rumsey, noticed a similarity between the tom edge of the piece of prophylactic wrapper found in the sack containing the heroin and the edge of the piece of prophylactic wrapper found at the defendant’s house when it was searched on the same day. At Rumsey’s request the two pieces of wrapper were examined during the lunch hour under a comparison microscope by Linda Voss, a police forensic chemist. Following the noon recess Mrs. Voss testified that she had compared the two pieces of prophylactic wrapper and that the torn edges matched perfectly, leading to the inescapable conclusion that they had previously been a part of the same piece of paper. Mrs. Voss also identified two photographs which demonstrated the matching of the two pieces of paper, and they were admitted into evidence by the trial court. This testimony was never rebutted by the defendant and undoubtedly resulted in the defendant’s conviction of possession of heroin. It is difficult to see how the court could have reached any other reasonable conclusion.
On this appeal the defendant raises four points of claimed trial error. Points No. 1 and No. 2 concern the refusal of the district court to grant the defendant a jury trial. As his first point the defendant maintains that the trial court erred in its failure to grant the defendant a jury trial after the case had been placed on the trial docket of May 12, 1975. It is the defendant’s position that, although the defendant had previously waived trial by jury prior to his jumping bond in September of 1974, once the trial court put his case back on the jury trial docket he was entitled to a jury trial as a matter of right. The record discloses that the defendant waived jury trial on August 6, 1974, approximately nine months prior to the time he was apprehended-.and the case was set on the jury trial docket. Furthermore on the date set the defendant did not announce ready for trial but asked for another continuance and did not request leave to withdraw his waiver of jury trial. Nor did he object to the setting of the case on the nonjury trial docket. As the district administrative judge observed on May 23, 1974, he had inadvertently set the defendant’s case on the jury trial docket after defendant’s apprehension. In our judgment it was not error under the circumstances for the trial judge to remove the case from the jury trial docket and return it to its proper place on the nonjury trial docket.
As his second point on appeal the defendant contends that the trial court erred in its refusal to allow the defendant to withdraw his waiver of a jury trial. The record is clear that the defendant in August 1974, voluntarily and understandingly waived trial by jury. Thereafter his waiver could not be withdrawn except in the discretion of the trial court. (State v. Blanton, 203 Kan. 81, 453 P. 2d 30.) Among the factors to be considered by a trial court confronted by such a motion are the timeliness of the motion to withdraw the waiver and whether a delay of trial or serious inconvenience of witnesses would result from granting such motion. At the hearing on the motion for withdrawal of jury waiver in this case evidence was presented by the state which reasonably showed that substantial inconvenience would occur if the motion was granted. Vacations were apparently coming up and some witnesses would not be available at a later date in the near future. It was obvious that if the motion was granted the trial would be delayed for at least a month. Furthermore, on the hearing of his motion the defendant gave no specific reason for wanting to withdraw his waiver. He does not claim that the trial judge was prejudiced against him nor has any prejudice been shown. Considering the record in its entirety we have concluded that the defendant has failed to show that the trial court abused its discretion by refusing to allow the defendant to withdraw his waiver of jury trial.
The defendant’s third point is that the trial court erred in its refusal to grant the defendant a continuance so that two witnesses for the defense, Mr. and Mrs. Jack Hanson, could be subpoenaed. These are the two witnesses noted above who testified on behalf of the defendant at two prior trials. Transcripts of their testimony at previous trials were available and were admitted into evidence in this case. The defendant’s position is that the live testimony of these witnesses was vital and that the defendant was prejudiced by the refusal of the trial court to grant a continuance to obtain their testimony in person. It is the state’s position that the trial court did not abuse its discretion is refusing to grant a continuance since the. witnesses were residing in the state of Alabama which has not adopted the uniform act to secure attendance of witnesses from without the state. (K. S. A. 22-4201, et seq.) The state contended that since Alabama was not a party to the uniform act the presence of the witnesses could not be compelled and, if the trial was continued, the defendant could not guarantee the presence of these witnesses. Continuances may, of course, be granted either party for good cause shown. (K. S. A. 22-3401.) The granting of a continu anee is a matter within the sound discretion of the trial court. In seeking a continuance due to the absence of a witness, the party must show that due diligence has been exercised to procure the witness’s testimony. A continuance will not be granted merely upon an assertion that the party relied upon the promises of witnesses that they would be present and testify. (State v. Williamson, 210 Kan. 501, 502 P. 2d 777.) In this case the defendant was not even relying upon promises from his witnesses. He was- merely attempting to subpoena witnesses from out-of-state whose presence he could not compel. Counsel for the defendant was not able to advise the •trial court that the Hansons would leave Alabama and appear at the trial if the case was continued. The defendant’s motion was nothing more than an attempt to gain time to see if he could obtain from the Hansons a promise to appear in court at some later date. Here the trial court, prior to overruling the motion for continuance, was advised that a transcript of the witnesses’ testimony was available and could be introduced into evidence by the defendant. We have concluded that under all the circumstances the trial court properly exercised its discretion and that its refusal to grant a continuance was not an abuse of discretion.
The defendant’s fourth and final point is that the trial court erred in allowing the state to introduce new prejudicial evidence after the commencement of the trial in violation of a discovery order, and, once admitting the evidence, the trial court erred in its failure to grant the defendant a sufficient continuance to allow him to obtain independent expert analysis concerning the new evidence. The evidence in question was the “fracture test” conducted by the forensic chemist, Linda Voss, in which she compared the fragment of the prophylactic wrapper found in the brown-paper sack with the piece found in the defendant’s house and concluded that the tom edges of the pieces matched perfectly. It is clear that the state had not conducted this particular test until the lunch recess of the first day of the fourth trial. The trial court held that the state was not precluded from continuing its investigation even after trial had commenced and overruled the objection. It is undisputed that following completion of the test, counsel for the defendant was promptly advised of the results thereof. Furthermore, defendant’s counsel was permitted to interview the forensic chemist prior to her testifying and was given the opportunity to examine the two photographs which documented her visual observations through the comparison microscope. The trial court also ordered that the fragments be made available to any witness designated by the defendant and recessed the case until the following day so that the defendant might obtain an expert to examine the fragments. We have concluded that the state did not violate the previous discovery order of the trial court, since the trial court required the results of the test to be made available to defendant’s counsel promptly after the test had been completed.
The defendant insisted upon the right to be granted a continuance to search for out-of-state “fracture experts” who might testify on defendant’s behalf. The trial court observed that Mrs. Voss’s testimony consisted only of a comparison of two pieces of paper observed under a microscope and that the defendant did not need the assistance of an out-of-state fracture expert. In our judgment the trial court did not abuse, its discretion in permitting the state to introduce the testimony of Linda Voss into evidence and in its refusal to grant an extended continuance in the case. The defendant has not shown that he was prejudiced by the trial court’s order. Following the completion of the trial and the finding of guilty, the defendant had an opportunity to have tests made on the fragments and to present them to the trial court at a hearing on a motion for a new trial. Counsel for defendant did not show to the trial court, nor has he shown to this court, that he has evidence available to dispute the conclusion of the state’s expert witness that the fragments of prophylactic wrapper paper were at one time a part of the same piece of paper. We are certain that if such expert testimony was available to defendant to dispute the testimony of the state’s expert witness, such testimony would have been presented to the trial court on a motion for a new trial.
For the reasons set forth above the judgment of the district court is affirmed.
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The opinion of the court was delivered by
Prager, J.:
This is an action in mandamus brought in this court under its original jurisdiction prescribed by Article 3, Section 3, of the Kansas Constitution. The attorney general, as relator on behalf of the state of Kansas, seeks a writ of mandamus to compel the defendant secretary of state to publish House Bill 3051 as passed by the 1976 legislature. The basic issue to be determined may be simply stated: If the governor signs a bill after the legislature adjourns, can the bill become law under Article 2, Section 14, of the Kansas Constitution? Because of the importance of the issue and in view of the fact there was no factual dispute involved in the case, oral arguments were set and heard by the court on June 10, 1976. After considering the briefs and oral arguments of the parties, this court on June 18, 1976, entered judgment for the plaintiff. In our brief opinion we stated that our decision would be implemented by a formal opinion to be filed when prepared. This formal opinion sets forth our reasons for entering judgment in favor of the plaintiff.
The essential facts are as follows: House Bill 3051 originated in the Kansas House of Representatives and was passed by that house on March 3, 1976. It was passed as amended by the Kansas Senate on April 6, 1976. On April 21, 1976, the Kansas Senate accepted a conference committee’s report regarding House Bill 3051, and one day later on April 22, 1976, the house of representatives accepted the same conference report. The bill was timely presented to Governor Robert F. Bennett for his signature on April 27, 1976. On May 4, 1976, the Kansas legislature adjourned sine die. On May 6, 1976, after the adjournment, the governor signed the bill as passed by both houses of the Kansas legislature. Relying upon State, ex rel., v. Ryan, 123 Kan. 767, 256 Pac. 811, the secretary of state refused to publish the bill in the 1976 Session Laws. The attorney general then brought this action seeking mandamus to compel publication of House Bill 3051. The single question of law presented and to be determined is whether 1976 House Bill 3051 became law when it was signed by the governor on May 6, 1976, after the final adjournment of the Kansas legislature on May 4,1976.
The determination of the issue of law presented requires us to consider and construe Article 2, Section 14, of the Kansas Constitution which was a part of the revised legislative article adopted by the people on November 5, 1974. This section provides in pertinent part:
“§ 14. Approval of bills; vetoes, (a) Within ten days after passage, every bill shall be signed by the presiding officers and presented to the governor. If the governor approves a bill, he shall sign it. If the governor does not approve a bill, the governor shall veto it by returning the bill, with a veto message of the objections, to the house of origin of the bill. Whenever a veto message is so received, the message shall be entered in the journal and in not more than thirty calendar days (excluding the day received), the house of origin shall reconsider the bill. If two-thirds of the members then elected (or appointed) and qualified shall vote to pass the bill, it shall be sent, with the veto message, to the other house, which shall in not more than thirty calendar days (excluding the day received) also reconsider the bill, and if approved by two-thirds of the members then elected (or appointed) and qualified, it shall become a law, notwithstanding the governor’s veto.
“If any bill shall not be returned within ten calendar days (excluding the day presented) after it shall have been presented to the governor, it shall become a law in like manner as if it had been signed by the governor.”
Subsection (b) of section 14 pertains to the power of the governor to veto certain items of appropriation of money and permits the governor to disapprove one or more of such items and to approve other portions of an appropriation bill. Subsection (b) is not relevant to the issue presented in this case and need not be considered.
At the outset we are faced with the decision of this court in State, ex rel., v. Ryan, supra, which is relied upon by the secretary of state in support of her position. Ryan was an original proceeding in mandamus brought by the attorney general against the secretary of state to require him to publish a senate bill in the official state paper. At the time Ryan was decided Section 14 of Article 2 differed in a number of respects from the revised section 14 as adopted in 1974. At the time of Ryan section 14, read as follows:
“Every bill and joint resolution passed by the house of representatives and senate shall, within two days thereafter, be signed by the presiding officers, and presented to the governor; if he approve, he shall sign it; but if not, he shall return it to the house or representatives, which shall enter the objections at large upon its journal and proceed to reconsider the same. If, after such reconsideration, two-thirds of the members elected shall agree to pass the bill or resolution, it shall be sent, with the objections, to the senate, by which it shall likewise be reconsidered, and if approved by two-thirds of all the members elected, it shall become a law; but in all such cases the vote shall be taken by yeas and nays, and entered upon the journals of each house. If any bill shall not be returned within three days (Sundays excepted) after it shall have been presented to the governor, it shall become a law in like manner as if he had signed it, unless the legislature, by its adjournment, prevent its return, in which case it shall not become a law. . . .”
In Ryan the secretary of state contended that the senate bill involved never became law because (1) it was not enrolled until after the legislature had adjourned; (2) it was not signed by the president of the senate and the speaker of the house until after the adjournment of the legislature and more than two days after the passage of the bill; (3) it was not presented to the governor until more than two days after its passage by the legislature and after the adjournment of the legislature; and (4) it was not signed by the governor until six days after the adjournment of the legislature. With reference to the failure of the presiding officers to sign the bill within the time prescribed by the constitution and the presenting of the bill to the governor within the prescribed two-day period, the court in Ryan held that these requirements were directory only and deviations which should not in themselves invalidate the bill.
In holding that the bill had not been constitutionally enacted, the opinion stated that the most serious feature in the case related to procedure in lawmaking taking place after the adjournment of the legislature — the signing of the bill by the presiding officers, enrolling it, presenting it to the governor, and the signing of it by the governor. In regard to the power of the governor to sign a bill after adjournment of the legislature, the court commented:
“. . . But what power has the governor of Kansas after the adjournment of the legislature in this respect? Counsel say he can sign the bill and make it a valid law simply because there is no provision to the contrary. Suppose in his judgment it should not be signed, what can he do? He cannot let it become a law on the three-day rule because the legislature has adjourned. He cannot veto it and send it 'back with his objections, nor send it to the secretary of state with his objections, as is provided in most of the other states in which favorable decisions have been rendered. Suppose it is an appropriation bill and he wants to disapprove some of the items and approve the remainder, what can he do? With the legislature adjourned he is powerless.
“We think the governor is an essential part of the legislature, and his duties with reference to legislation are intended to be performed while the legislature is in session. If he can proceed with his part six days after adjournment why not 60 days or 600 days, or, in other words, function as to his part during the entire interim between sessions?” (pp. 770-771.)
The court then cited State v. Sessions, 84 Kan. 856, 115 Pac. 641, stating that a law is not complete until it has been finally acted upon by the two houses, and by the governor and that until a bill has received the final consideration of the three lawmaking powers, viz., the house, the senate and the governor, it is not a law.
We have concluded that Ryan is not controlling in the case now before us and that it should not be followed in determining the issue presented. We have arrived at this conclusion for several reasons:
(1) The factual situation before the court in Ryan is distinguishable from that presented in this case. Ryan involved more than a mere delay in the signing of the bill by the governor until after the legislature had adjourned. In addition to the time of the signing of the bill by the governor, the signing of the bill by the presiding officers, enrolling it, and presenting it to the governor occurred after adjournment of the legislature. These were powers required to be exercised by legislators which had not been completed at the time the legislature adjourned.
(2) When Ryan was decided in 1927 this court did not have before it for its consideration the decision of the United States Supreme Court in Edwards v. United States, 286 U. S. 482, 76 L. Ed. 1239, 52 S. Ct. 627, with its compelling rationale. Edwards was handed down in 1932, five years after Ryan. Edwards involved the power of the President of the United States to sign bills after the adjournment of the congress under Article 1, Section 7, of the United States Constitution which was virtually the same as Article 2, Section 14, of the Kansas Constitution then in force. Edwards rejected the argument that the role of the president in signing or disapproving bills was legislative and therefore the power to sign a bill expired upon the adjournment of congress. In Edwards the United States Supreme Court relied to a great extent upon La Abra Silver Mining Co. v. United States, 175 U. S. 423, 44 L. Ed. 223, 20 S. Ct. 168 (1899). La Abra involved the validity of a bill which was signed by the president during a period of time when the congress was in recess. In La Abra it was contended that the president signs bills in a legislative capacity and that he could not act in that capacity when congress was not in session. The court rejected this contention in the following language:
“It is said that the approval by the President of a bill passed by Congress is not strictly an executive function, but is legislative in its nature; and this view, it is argued, conclusively shows that his approval can legally occur only on a day when both Houses are actually sitting in the performance of legislative functions. Undoubtedly the President when approving bills passed by Congress may be said to participate in the enactment of laws which the Constitution requires him to execute. But that consideration does not determine the question before us. As the Constitution while authorizing the President to perform certain functions of a limited number that are legislative in their general nature does not restrict the exercise of those functions to the particular days on which the two Houses of Congress are actually sitting in the transaction of public business, the court cannot impose such a restriction upon the Executive. . . .” (p. 453.)
Similarly, in La Abra the Supreme Court of the United States rejected the argument raised in Ryan that if the power of the chief executive officer to sign bills into law did not expire upon adjournment, he could act months, weeks or even years later. Discussing Article 1, Section 7, of the United States Constitution which was precisely parallel to the Kansas constitutional provision, the court stated:
“. . . It is made his duty by the Constitution to examine and act upon every bill passed by Congress. The time within which he must approve or disapprove a bill is prescribed. If he approves a bill, it is made his duty to sign it. The Constitution is silent as to the time of his signing, except that his approval of a bill duty presented to him — if the bill is to become a law merely by virtue of such approval — must be manifested by his signature within ten days, Sundays excepted, after the bill has been presented to him. It necessarily results that a bill when so signed becomes from that moment a law. But in order that his refusal or failure to act may not defeat the will of the people, as expressed by Congress,- if a bill be not approved and be not returned to the House in which it originated within that time, it becomes a law in like manner as if it had been signed by him. We perceive nothing in these constitutional provisions making the approval of a bill by the President a nullity if such approval occurs while the two Houses of Congress are in recess for a named time. . . .” (pp. 453, 454.)
In Edwards the congress had adjourned at the time the president signed the bill. The court extended the reasoning of La Abra to that situation stating that it obviously made no difference if the congress adjourned sine die or merely recessed to a day named. The court in Edwards stated that the fact that the signing of a bill by the president is a legislative function does not mean that it can be performed only while congress is in session. The president acts legislatively under the constitution but he is not a constituent part of the congress.
Since 1932 the rationale of the decision in Edwards has been approved by the great majority of appellate courts throughout the United States which have considered the question whether the adjournment of the state legislature terminates the power of a governor to sign bills into law. Today the general rule is that the approval by the governor of a bill passed by a state legislature is not a legislative act in the sense that such approval may not be given after final adjournment of the legislature, and that, in the absence of express constitutional prohibition, the mere fact that at the time the governor signs a bill the state legislature has adjourned, will not necessarily prevent the bill from becoming a law.
The question of the power of the executive to sign a bill after adjournment or during recess of the legislature is the subject of an annotation found in 64 A. L. R. 1468. In that annotation and in its volumes of supplemental decisions, there are cited many cases which support the general rule and a few cases where it is rejected. Obviously the peculiar language contained in particular state constitutions of the various states may be controlling. However, the annotation cites cases in support of the rule from Arkansas, Connecticut, Florida, Georgia, Louisiana, Massachusetts, Minnesota, Mississippi, New York, and Vermont. In addition to Ryan only two jurisdictions are mentioned as supporting the view that adjournment terminates the power of the governor to sign bills into law. (Fowler v. Peirce, 2 Cal. 165 [1852]; Trustees of School District No. 1 v. Commissioners of Ormsby County, 1 Nev. 334 [1865].) It is obvious from the reading of these cases that the majority of the appellate courts in the United States have rejected the rationale upon which Ryan is based and have approved the reasoning in Edwards.
(3) As noted from the language of Ryan quoted above, the court in that case was concerned with the fact that the governor might have an unlimited time after adjournment to sign a bill. That question was not before the court then, nor is it presented here, for in the case now before us, the governor acted within ten days after the bill was presented to him. In our judgment if the question were presented, it could logically be answered as it was in La Abra that a bill can become law by virtue of the signature of the governor only if that signature is executed within the ten-day period provided in Section 14 of Article 2. (See, also, State v. McCook, 109 Conn. 621, 147 A. 126, 64 A. L. R. 1453.)
(4) The revised second paragraph of Article 2, Section 14 (a), as adopted in 1974, eliminated the reference to the adjournment of the legislature which was contained in Article 2, Section 14, of the Kansas Constitution as it existed when Ryan was decided. At the time of the decision in Ryan (the second paragraph of) Article 2, Section 14 read as follows:
• . If any bill shall not be returned within three days (Sundays excepted) after it shall have been presented to the governor, it shall become a law in like manner as if he had signed it, unless the legislature, by its adjournment, prevent its return, in which case it shall not become a law. . . .” (Emphasis supplied.)
Section 14 as revised and adopted as a part of the new legislative article in 1974 now provides:
“If .any bill shall not be returned within ten calendar days (excluding the day presented) after it shall have been presented to the governor, it shall become a law in like manner as if it had been signed by the governor.”
In our judgment the removal of the language referring to adjournment of the legislature is significant. It is clear ti> us that by the change in language the legislature and the people in 1974 intended to eliminate any requirement that the legislature had to be in session in order for a bill to become law either where the governor signs or fails to sign a bill within the ten days allowed for his approval.
Throughout the judicial history in this state this court has been extremely reluctant to impose limitations upon legislative action in the absence of an express constitutional prohibition. (See for example Jansky v. Baldwin, 120 Kan. 332, 243 Pac. 302, 47 A. L. R. 476; Leek v. Theis, 217 Kan. 784, 539 P. 2d 304.) There is no language contained in Article 2, Section 14, which expressly prohibits the governor from signing a bill within the ten-day period after it is presented to him even though the legislature may have adjourned prior to the time he signs it. We specifically disapprove of the language in State, ex rel., v. Ryan, supra, which states in substance that after the legislature adjourns the governor is powerless to sign a bill and make it a valid law. Such a construction engrafts a limitation on the power of the governor to sign a bill after adjournment of the legislature which is neither expressly nor impliedly contained in the Kansas Constitution. We overrule Ryan so far as that decision is contrary to the conclusion which we have reached in this case.
Judgment is for the plaintiff as heretofore entered by this court on June 18, 1976.
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Per Curiam:
This is an appeal from a judgment of the district court of Shawnee County summarily denying relief on a motion filed pursuant to K. S. A. 60-1507, where the petitioner, Jesse Cook, seeks to vacate his sentence on conviction of three counts of the sale of marihuana. (K. S. A. 65-4125 [b], Repealed July 1, 1973.)
The petitioner, represented by employed counsel, was convicted in a jury trial. Sentences of not less than two nor more than twenty years were made to run concurrently. The petitioner first contends the trial court actually sentenced him to not more than ten years instead of twenty years. Counsel was appointed to represent the petitioner in the post-conviction proceedings, and the court, by nunc pro tunc journal entry, corrected the concurrent sentences to run for not less than two nor more than ten years.
The petitioners other ground for relief concerns his claim that “a jailer” would testify to his being in an “illegal one man identification line-up.” The trial court did not grant an evidentiary hearing on this claim but summarily denied the petitioner’s motion. On the record here presented this was proper because no factual basis was alleged in his motion to support the claim of an illegal lineup. The mere conclusionary contention of a petitioner for which no evidentiary basis is stated or appears is not a sufficient basis for post-conviction relief. (Burns v. State, 215 Kan. 497, 524 P. 2d 737.)
Furthermore, the record reveals no contemporaneous objection to the alleged illegal identification process at the time of the trial. As such the issue is not reviewable. (Baker v. State, 204 Kan. 607, 464 P. 2d 212; and Wood v. State, 206 Kan. 540, 479 P. 2d 889.) For all the record discloses, the petitioner’s counsel may have declined to object for strategic or tactical reasons, or because he felt the point had no merit.
Finally, no direct appeal was taken from the judgment of conviction. Since the complaint of suggestive identification (if that is what it amounts to) goes to the admissibility of identification evidence at trial, the point is waived unless the petitioner shows exceptional circumstances excusing the failure to appeal. (K. S. A. 1975 Supp. 60-2702, Rule No. 121 [c] [3].) The petitioner does not present exceptional circumstances such as a change in substantive laws or procedural rules. (See, Barnes v. State, 204 Kan. 344, 461 P. 2d 782; and Baker v. State, supra.)
The petitioner does make veiled accusations that his employed counsel, a duly licensed attorney, was incompetent. However, nothing appears of record to support any such allegation. In Winter v. State, 210 Kan. 597, 502 P. 2d 733, the court cited with approval the American Bar Association Standards relating to the defense function, then went on to state the law of Kansas as follows:
“The adequacy and effectiveness of an attorney’s services on behalf of an accused in a criminal action must be gauged by the actual representation afforded the accused in its totality. To be a denial of an accused’s constitutional rights it must clearly appear that the representation of the accused was wholly ineffective and inadequate. . . . The burden is on the petitioner to show the representation by his attorney was so incompetent and inadequate that the total effect was that of a complete absence of counsel. ...” (p. 603.)
The petitioner’s allegations in his motion are insuificient to present an issue calling for an evidentiary hearing on this point. (See also, Schoonover v. State, 218 Kan. 377, 543 P. 2d 881, cert. denied, __ U. S __, 47 L. Ed. 2d 349, 96 S. Ct. 1412.)
The trial court examined the record of the trial and found nothing to warrant a collateral attack on its judgment. On the record before us we see no basis for disturbing the trial court’s finding.
The judgment of the lower court is affirmed.
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The opinion of the court was delivered by
Harman, C.:
Frank Cobum was convicted by a jury of two counts of official misconduct while sheriff of Lyon County (K. S. A. 21-3902 [a]). He was sentenced and now appeals.
Appellant Coburn served as sheriff of Lyon county from June, 1970, until he resigned March 15, 1973. On May 7, 1973, a grand jury returned an indictment charging him with four separate, unrelated counts of official misconduct. In a common trial he was convicted of two charges and acquitted of the remaining two.
Count one, of which appellant was convicted, charged that on or about September 1, 1971, he solicited James Torrence to sell marihuana and delivered to Torrence for sale, marihuana which he had in his custody as sheriff, with the intent of realizing personal gain.
Appellant’s first point upon appeal is the trial court erroneously denied his motion to dismiss count one because the state failed to serve him with a bill of particulars as directed in a general discovery order made August 29, 1973. At the beginning of the trial, which commenced October 30, 1973, the state had not delivered the bill of particulars. Immediately after the jury was sworn appellant moved for dismissal because of this failure. The motion was overruled. After the state’s first witness, James Torrence, had testified, a bill of particulars was supplied. Appellant again moved for dismissal, which was denied. In pertinent part the bill stated:
“5. In Count I witnesses for the State will be James Torrence, Lucille Prosper and J. Vernon Humphrey. The overt acts are alleged to have taken place on or about September 1, 1971, in the Courthouse at Emporia; September 3, 1971, on the Burlingame Road near Emporia; November 16, 1971, at Mr. Torrence’s residence in Emporia.”
James Torrence was the only prosecution witness who had any knowledge as to count one. He testified he had loaned appellant $50.00 which had not been repaid; that in September or October he went to appellant’s office to clear up confusion regarding Torrence’s son who had been arrested in Arkansas; there was marihuana in appellant’s office as a result of a recent raid; appellant asked him if he could sell the marihuana; he replied he might if it was any good; appellant said he needed $200.00 to pay a grocer; Torrence said if he sold any marihuana he would give the money to appellant; he was going to make the sale to help appellant; Torrence told appellant he could get $80.00 per pound; about one week later appellant telephoned him and suggested a meeting place at night at a schoolhouse on Burlingame Road three or four miles outside Emporia; he drove to the meeting place, then got into appellant’s car; they rode around and appellant gave him a one gallon coffee can full of marihuana; Torrence hid the marihuana until he was to go to prison, then he called appellant that evening and asked him to pick it up; appellant came about 7:00 or 8:00 p. m. and took the marihuana.
The purpose of our proviso for a bill of particulars, K. S. A. 22-3201 (5), is twofold: (1) To insure the defendant’s understanding of the crime for which he stands charged so that he may prepare a defense and (2) to enable him to avoid a second prosecution for the same crime (State v. Frames, 213 Kan. 113, 515 P. 2d 751). Here a bill of particulars might conceivably have been helpful in preparing a defense and the prosecution was dilatory in supplying it. No reason or excuse for the delay has been offered and none is apparent.
A bill of particulars is a form of discovery now permitted a defendant in a criminal case. Our general discovery statute, K. S. A. 22-3212, in part provides:
“. .' . If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this section or with an order issued pursuant to this section, the court may order such party to permit the discovery or inspection of materials not previously disclosed, grant a continuance, or prohibit the party from introducing in evidence the material not disclosed, or it may enter such other order as it deems just under the circumstances.” (Emphasis added.)
In State v. Jones, 209 Kan. 526, 498 P. 2d 65, we dealt with the prosecution’s failure to comply with a discovery order and held:
“A trial court is vested with wide discretion in dealing with the failure of a party to comply with a discovery and inspection order.
“In exercising its discretion as to whether sanctions should be applied for violation of a discovery and inspection order the trial court should take into account the reasons why disclosure was not made, the extent of the prejudice, if any, to the opposing party, the feasibility of rectifying that prejudice by a continuance, and any other relevant circumstances.
“In furtherance of just and expeditious determination of cases requests for continuance should be utilized where necessary if the party is surprised because of his adversary’s failure to disclose in compliance with a discovery order.” (Syl. para. 1, 2 & 3.)
The foregoing principles are applicable as well to failure of the prosecution to furnish a bill of particulars.
Here appellant testified in his own behalf. He stated he had used Torrence as an informant but never asked him to sell marihuana, had never delivered any marihuana to him or picked up any from him. He now argues the state’s tardiness in supplying the bill of particulars was prejudicial to him in that he was sur prised by the testimony. After appellant was furnished the bill of particulars he made no objection to its sufficiency nor does he complain now upon that score in any vital way and, more importantly, he made no request for a continuance so as to meet the evidence presented against him. Instead, he was content to proceed with his defense.
In Jones we discussed various matters to be considered by a trial court in dealing with a failure to comply with a discovery order and stated that “. . . in furtherance of just and expeditious determination of cases . . . requests for continuance should be utilized where necessary if a party is surprised because of his adversary’s failure to disclose in compliance with a discovery order. Such procedure will enable a court more validly to distinguish the good faith request for help from the development of a mere ploy to be used later upon appeal if needed.” (p. 531.)
Although appellant asserts prejudice he does not really demonstrate it and none is apparent or seems likely, particularly in view of his failure to request a postponement or continuance to meet the situation. Under these circumstances we cannot declare abuse of discretion in the court’s denial of appellant’s motion to dismiss count one.
Appellant’s next point on appeal, applicable to both counts upon which he was convicted, is that he should have had a mistrial declared because of jury harassment. The matter arose in this fashion. Following a noon recess during the trial a juror reported to the trial judge that he had received an anonymous telephone call during the recess in which the caller told him to “make sure that he did the right thing”. The juror stated he didn’t get any impression whether the caller was referring to a vote of guilty or one of not guilty. The juror also told the judge he had discussed the call with other jurors and one other juror stated she had received a phone call regarding the case — “supposedly from a friend”. This is the whole story told by the record. Appellant moved for mistrial which was denied.
Appellant says he is not asserting juror misconduct but rather that the calls produced sufficient distraction to the jurors that the verdict should be set aside and new trial had.
Not every jury is to be disqualified because of some improper communication or contact made to a juror prior to or during trial. The granting of a mistrial or new trial because of such conduct is generally regarded as resting in the sound discretion of the trial judge who is best able to assess the impact of any such approach upon the fairness of the trial (See Anno.: Juror — Communication with Outsider, 64 ALR 2d 162, 185-186). To warrant reversal of a judgment because of improper contact or communication between a juror and an outsider, there must be some showing or indication of injury, actual or potential, to the complaining party, or the act or conduct complained of must be such as to afford reasonable grounds to question the fairness of the trial or the integrity of the verdict, or as would tend to destroy or impair public confidence in trial by jury (Id., pp. 165-166). The substance of the communication may be important. If the comment relates to the merits of the case, it will be more likely to be found prejudicial. However, if it relates to the case merely in a general or incidental manner it will more likely be found harmless (Id., pp. 175-177).
In Hanson v. Kendt, 94 Kan. 310, 146 Pac. 1190, an appeal from an order denying a motion for new trial because certain remarks were made in the presence of one juror, this court held that it must be shown that remarks so made were such as would necessarily prejudice the party complaining, or it must be shown that prejudice did result therefrom, in order to warrant this court in directing new trial on that account (Syl. para. 6).
Here the phone call does not on its face appear to be such as to vitiate the verdict. It was promptly disclosed to the trial judge — a fact which reflects conscientious juror attitude toward recognized impropriety. Its recipient was unable to discern the verdict sought by its maker. There is nothing to indicate the call had any effect or even the likelihood of effect upon the verdicts rendered. The trial judge, who was close to the situation, assessed the contact as harmless and we cannot declare abuse of discretion in that ruling.
The other count of which appellant was convicted, count three, charged that on or about February 24, 1973, while acting as sheriff, he removed from the lawful custody of Lyon county and retained in his personal possession one U-Haul rental trailer, with intent to keep the same permanently for his own use. Appellant contends the evidence was insufficient to sustain the finding of guilt on this count.
The prosecution s evidence revealed the following. On October 13, 1972, a deputy sheriff of Lyon county brought in an abandoned U-Haul trailer which had been found near the Admire turnpike exchange. The trailer was stored in the Lyon county shop adjacent to the courthouse. The director of the Lyon county noxious weed division, who used the shop for storing his materials, complained on several occasions to different officers in the sheriff’s department about the trailer being in the shop and requested that it be removed. On February 24 ,1973 (the date of the alleged misconduct with respect to the trailer), the director helped appellant hitch the trailer to the latter’s automobile. Appellant drove off with the trailer and. parked it in the back yard of his residence nexit to the alley. Other items, a jeep and a pickup, had previously been similarly stored at appellant’s home. Appellant had a building at his home large enough to conceal the trailer but it was left in plain view. The trailer had not been repainted or changed in any way and its wiring had not been repaired when it was removed from appellant’s premises May 7, 1973, pursuant to a search warrant.
One Sunday night, some time after appellant resigned as sheriff, two Emporia police officers saw a U-Haul trailer in the alley behind a sporting goods store in Emporia as they were investigating a possible burglary. These officers testified the trailer was attached to appellant’s maroon older model Buick and both appellant and the store owner were present. The owner of the store testified that on three occasions in 1973 he had rented a U-Haul trailer from a local dealer and used his 1965 maroon Dodge to pull it; to his knowledge no other U-Haul trailer was on his premises during the time in question.
Appellant’s next door neighbor testified she saw the trailer in appellant’s back yard and no place else; appellant’s wife told her it was parked there until the owner could be found. Appellant testified that after several complaints about the trailer being in the county shop he moved it to the back yard of his residence; that he had a trailer of his own and he never used the U-Haul trailer for personal use.
K. S. A. 21-3902 (a), under which appellant was convicted, provides :
“Official misconduct is any of the following acts committed by a public officer or employee in his public capacity or under color of his office or employment:
“(a) Willfully and maliciously committing an act of oppression, partiality, misconduct or abuse of authority. . . .”
Thus as an essential element of the charge it was incumbent on the state to establish an act of misconduct while appellant was acting in his capacity as sheriff or under color of his office. This act was alleged to have occurred February 24, 1973, the date appellant transported the trailer from the county shop to his back yard. It was further necessary to show the removal was done with intent to keep the trailer permanently for his own use. In its oral argument here the state specifically acknowledged it is relying on the taking which occurred February 24, 1973, while appellant was sheriff. It simply asserts there was a conflict of evidence; therefore, the verdict should be sustained.
It is true there was a conflict in the evidence as to whether it was appellant’s automobile which was seen hooked to a U-Haul trailer one Sunday night behind the sporting goods shop. Accepting the state’s version as to this, however, as we must, the fact remains, this act took place after appellant had resigned and was no longer sheriff. There simply is no evidence as to any bad intent on his part when he removed the trailer from the county shop to his home — the time when the crime allegedly occurred. The evidence is all to the contrary. If appellant had been charged with wrongful possession at the time he had the trailer in the alley, without regard to any official capacity, an entirely different situation would be presented. This evidence of the Sunday night episode is not sufficient to raise an inference appellant intended on February 24th to keep the trailer permanently for his own use and appellant’s motion for dismissal as to this count should have been sustained. Accordingly, the conviction upon count three must be set aside.
The judgment and sentence as to count one is affirmed; that as to count three is reversed with directions that it be dismissed.
APPROVED BY THE COURT.
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The opinion of the court was delivered by
Prager, J.:
This is an original action brought by the attorney general, as relator, for and on behalf of the state of Kansas, seeking a writ of mandamus to compel publication of House Bill 3051 by the defendant, the secretary of state.
Hearing has been expedited by a preferential setting of the case for argument upon joinder of the issues and stipulation of the facts. The case has been briefed and was orally argued by the parties on June 10, 1976.
Upon due consideration by a unanimous court, we conclude that a writ of mandamus should be issued. The defendant is hereby ordered to duly publish House Bill 3051 pursuant to the terms prescribed in the bill. This brief opinion announcing our decision will be implemented by a formal opinion to be filed when it is prepared.
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The opinion of the court was delivered by
Fromme, J.:
This is a direct appeal after a jury verdict convicting appellant David L. Wilson of first degree murder. Wilson was convicted of killing Walter Wayne Wirts on the night of December 28, 1967, in Wichita, Kansas. Appellant questions the sufficiency of the evidence to support the verdict.
The evidence presented by the state consisted of a confession by the accused; testimony from several witnesses who saw or spoke to appellant prior to and following the crime; testimony from three individuals who spoke to the victim by telephone on the night of the murder; testimony from a pathologist who examined the victim’s body; and testimony from various police officers who took part in the investigation of the murder, in the arrest and in the interrogation of appellant.
Appellant was arrested by law enforcement officers from Kansas and Michigan on May 15, 1973, in Flint, Michigan. Appellant was advised of his rights at the time of his arrest pursuant to the rules laid down in Miranda v. Arizona, 384 U. S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602. He was transported to a Saginaw, Michigan police station by automobile. There appellant signed a waiver of rights form and made a statement to the police denying knowledge of the Wirts murder which had occurred five and one-half years earlier.
A short time later, in a second statement, appellant changed his story and confessed he had killed Wirts. Appellant stated he and a companion, Lamont Estrada, visited a Wichita bus station on the evening of December 28, 1967. At the station they met Wirts and agreed to perform homosexual acts with him for a fee of $25.00. The trio traveled to Wirts’ apartment where the victim and appellant engaged in homosexual conduct. Appellant stated that after engaging in the homosexual conduct he refused to continue and Wirts then produced a knife and threatened appellant unless he submit to further sexual conduct. According to appellant’s story he pretended to comply with the wishes of Wirts and then grabbed the knife and stabbed Wirts to death. Appellant said he and Estrada then cut open a suitcase belonging to Wirts and removed some of the victim’s clothing. Appellant and Estrada fled the scene together. They left Wichita a few days later and after traveling to Colorado and California appellant and Estrada separated. Appellant took up residence in Michigan, where he was arrested.
The state produced three witnesses who spoke with Wirts over the telephone in his apartment on the night of the homicide. Each witness testified that Wirts told them he had visitors at his apartment. They overheard voices in the background during their conversations and Wirts discussed having a sum of money in his possession at the time which he had collected' for his employer. He was holding it for deposit the following day. Wirts told at least one witness over the phone that the money was in his suitcase. It was reasonable to infer that those in his apartment at the time of these calls overheard what Wirts had said.
Frances Kiger, a tenant in a rooming house where the appellant and Estrada lived at the time testified that at midnight on December 28, 1967, she observed appellant and Estrada returning to their apartment. She testified appellant’s clothing was blood-covered. On the following morning she discovered appellant’s shaving kit hidden in a closet and inside the kit she found a large sum of currency, a ring bearing the Masonic emblem; a wrist watch, and a money clip monogrammed with the letter “W”. The ring and money clip were identified by others as belonging to the victim Wirts.
Mrs. Kiger further testified that she showed the shaving kit and its contents to the landlady, Charlotte Page. Mrs. Page testified she remembered seeing the shaving kit filled with currency and a watch. She did not see the ring or money clip, but did see a Masonic ring later the same day.
Dr. William Ekart, the coroner’s pathologist, related his medical opinion as to the manner in which Wirts was killed and stated that the cuts on Wirts’ hands indicated he had attempted to defend himself. Dr. Ekart illustrated his explanation with photographs of the body of the murder victim.
On appellate review the question is not whether the evidence establishes guilt beyond a reasonable doubt but whether the evidence was sufficient to form the basis for a reasonable inference of guilt. (State v. Austin, 209 Kan. 4, 495 P. 2d 960.) The evidence set out above is clearly sufficient to sustain appellant’s conviction for first degree murder.
The appellant attacks the jury’s verdict of guilty of murder in the first degree and asks that the verdict be set aside and a new trial granted. As a basis for such an attack he points out that under the information and instructions of the trial court the state was allowed to proceed with the trial for first degree murder on duplicate theories of a “willful, deliberate and premeditated killing” and “a killing in the perpetration or attempt to perpetrate a robbery.” Appellant contends that this is impermissible for in such case it becomes impossible to determine which of the two theories the jury found was supported by the evidence. It is argued that some members of the jury may have found appellant guilty of a premeditated killing and others a felony murder, and that this would not be a unanimous verdict as required by our law.
The two cases cited by appellant are not in point. One relates to a verdict which failed to specify the particular degree of the crime and the other relates to a verdict arrived at on an instruction which failed to require proof of intent necessary to complete the crime charged.
Although the question has not previously been presented to this court in its present form we do find authority in our cases which indicates the duplicate charge of both premeditated and felony murder may be proper. See State v. Moffitt, 199 Kan. 514, 431 P. 2d 879, and State v. Clark, 204 Kan. 38, 460 P. 2d 586.
In Moffitt the defendant was charged in Count II with first degree murder, both premeditated and felony murder. A motion by the defendant to require the state to elect to prosecute on either premeditated or felony murder was denied. The jury returned a verdict of first degree murder and felony murder. The jury’s verdict was upheld. It was pointed out that proof of murder in the first degree requires the specific intention to kill with deliberation and premeditation. Satisfactory proof may be by direct proof of such an intention or it may be supplied by proof of killing while in the commission of a felony. Proof of a killing in the perpetration of a felony is held tantamount to proof of premeditation and deliberation which would otherwise be necessary to constitute murder in the first degree.
In Clark this rationale was again approved. Mr. Justice Kaul speaking for the court, after referring to Moffitt, said:
“The purpose of the felony murder rule is to relieve the state of the burden of proving premeditation and malice when the victim’s death is caused by the killer while he is committing another felony. The rationale being that the killer’s malignant purpose is established by proof of the collateral felony. . . .” (204 Kan. pp. 43, 44.)
This being the case it follows that the question is one of proof necessary to support a verdict of first degree murder. When an accused is charged in one count of an information with both premeditated murder and felony murder it matters not whether some members of the jury arrive at a verdict of guilt based on proof of premeditation while others arrive at a verdict of guilt by reason of the killer’s malignant purpose. In such case the verdict is unanimous and guilt of murder in the first degree has been satisfactorily established. If a verdict of first degree murder can be justified on either of two interpretations of the evidence, premeditation or felony murder, the verdict cannot be impeached by showing that part of the jury proceeded upon one interpretation of the evidence and part on another.
The above holding meets with general acceptance in other jurisdictions in the absence of a statute which requires the jury to agree to the mode in which a murder was committed. See People v. Milan, 9 Cal. 3d 185, 107 Cal. Rptr. 68, 507 P. 2d 956; People v. Sullivan, 173 N. Y. 122, 65 N. E. 989; State v. Hazelett, 8 Or. App. 44, 492 P. 2d 501; and State v. Flathers, 57 S. D. 320, 232 N. W. 51, 72 A. L. R. 150.
Appellant complains that the trial court improperly excluded his testimony regarding statements by his accomplice, Lamont Estrada. Estrada was not available as a witness; his whereabouts were unknown. Appellant during the trial attempted to relate statements made by Estrada to the appellant which were excluded by the trial court as hearsay. The first statement was to the effect that Estrada told him he was in possession of embarrassing photographs which Estrada would publish if the appellant did not accompany Estrada to Wichita where the crime was committed.
If an utterance previously made out of court is offered in evidence merely for the purpose of establishing what was then said, and not for the purpose of establishing the truth of the statement, the testimony is not hearsay. If relevant it is admissible through the person who heard it. See K. S. A. 60-460; State v. Ritson, 215 Kan. 742, 748, 529 P. 2d 90; and State v. McClain, 220 Kan. 80, 551 P. 2d 806. The testimony as to the embarrassing photographs was not offered to prove the truth of the matter asserted by Estrada but was offered simply as an explanation of why appellant accompanied Estrada. The appellant complains of other instances in the trial where the court excluded his testimony concerning statements purportedly made by Estrada. According to appellant’s testimony, after visiting Wirts in his apartment, both Estrada and the appellant left for the purpose of putting appellant to bed. Appellant was intoxicated. Estrada stated he was going to return to the Wirts apartment.
Although some of the testimony proffered may have been improperly excluded by the trial court as hearsay any prejudice to appellant’s trial would not be of reversible magnitude. The testimony was on peripheral matters and any prejudice to appellant was far outweighed by the later ruling of the trial court, at the insistence of appellant’s counsel, permitting the appellant to testify to these same matters as well as to an extrajudicial confession by Estrada that he committed the crime with which the appellant was charged. It is a general rule that an extrajudicial confession by a stranger, that he committed the crime with which the defendant is charged, is hearsay and hence is not admissible to exculpate the defendant. That the declarant is dead, and his testimony therefore unobtainable, does not alter the rule. (Wharton’s Criminal Evidence, [13th Ed.] Vol. 2, § 270, pp. 16, 17, 18; cf. State v. Bailey, 74 Kan. 873, 87 Pac. 189.) The appellant is not in a favorable position to complain of the court’s rulings on the admissibility of this evidence.
Appellant complains of photographs and slides which were introduced and admitted in evidence showing the physical condition of the victim’s body when found. The testimony from the doctor who performed the autopsy discloses that these photographs were relevant and material to illustrate the nature and extent of the wounds inflicted. In a crime of violence which results in death, photographs which serve to illustrate the nature and extent of the wounds inflicted are admissible when they corroborate the testimony of witnesses or are relevant to testimony of a doctor as to the cause of death even though they may appear gruesome. (State v. Soverns, 215 Kan. 775, 529 P. 2d 181; State v. King, 219 Kan. 508, 548 P. 2d 803.)
Appellant contends that his conviction should be reversed because of the improper use of a confession taken by means of both audio and video recordings. These duplicate tapes were used during the trial. One was a video recording which did not have the sound track because of a malfunction in the machine at the time the confession was given. The other was the ordinary audio tape recording taken at the same time with a separate machine as a back-up precaution. The video tape showing indicated to the jury the demeanor of the parties involved in the giving and taking of the statement. The audio tape supplied the verbal communication. This was not an undue duplication of evidence and falls within the discretionary realm of the trial judge. The record in this case indicates the recordings were admitted within the proper procedural safeguards outlined in State v. Milow, 199 Kan. 576, 433 P. 2d 538. There is no question raised over the validity of the recordings and the identity of the appellant as a participant. The audio and video recordings were of sufficient clarity and quality to assist the jury in their deliberations even though portions thereof may not have been first quality reproductions of what was said and done.
When the authenticity of audio and tape recordings of a statement made by the defendant is established to the satisfaction of the trial court and found to be of sufficient clarity and quality to assist the jury in its deliberations they may be admitted in evidence even though portions thereof may not be first quality reproductions of what was said and done. Their admissibility rests largely in the discretion of the trial court. We find no abuse of discretion in their admission in this case.
In addition the appellant questions the findings of the trial court that appellant’s statement was freely and voluntarily given. He points to evidence that he was a bisexual or homosexual individual with personality disturbances, that he was taking pain medication and that he was under internal and external stress. He disputes the findings of a psychiatrist who testified that the confession was a product of a free and voluntary will.
It is the duty of the trial court, before admitting a purported confession into evidence, to conduct a proceeding 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. Milow, supra.) The inquiry must be based upon a consideration of the totality of the circumstances, and the trial court should make the decision in the first instance as to whether the confession was the product of a rational intellect and a free will; if so the confession may properly be admitted in evidence. The trial court in the present case conducted the hearing, heard considerable evidence and its judgment will not be overturned by this court.
In addition to the foregoing points discussed in this opinion, industrious counsel for appellant has raised seven more procedural points having to do with the attitude and conduct of the prosecuting attorney in the course of his examination of witnesses, the admissibility of certain testimony and the scope of proper rebuttal testimony introduced at the trial. We have examined the record on each of these points in light of the arguments presented thereon. We do not find error in any of these seven additional points which would approach reversible error.
The trial court did exercise proper control over the attorneys who participated in this trial. The court admonished the prosecutor in certain instances when he made over-zealous comments, and the court admonished the jury to disregard these comments. Certain questions by the state calling for inadmissible evidence were objected to by defense counsel during the course of the trial, the objections were sustained and the jury admonished. At one place in the record it appears the prosecutor indicated his dissatisfaction because objections had been sustained to five or six straight questions. The judge properly advised the attorney as to the reasons therefore. Under the circumstances appearing upon review of the record it must be said that any error was cured by the admonitions and instructions of the trial court. See State v. McClain, 216 Kan. 602, 533 P. 2d 1277, and State v. Warbritton, 215 Kan. 534, 527 P. 2d 1050.
As to those remaining points which bear upon the admissibility of evidence we wish to point out that this court will not reverse a trial judge on an issue of admissibility of evidence except for error which amounts to abuse of discretion in a ruling which affects the substantial rights of the party complaining. (State v. Winston, 214 Kan. 525, 520 P. 2d 1204.) It is apparent from the record and briefs presented to this court that the appellant had a fair trial, the verdict is supported by substantial competent evidence and no reversible error has been demonstrated on appeal.
Judgment is affirmed.
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Per Curiam:
Affirmed.
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The opinion of the court was delivered by
Owsley, J.:
Defendant Darrell D. Howard appeals from a criminal conviction of burglary in violation of K. S. A. 21-3715. He argues the evidence is insufficient to support the conviction and his prior conviction should not have been admitted in evidence.
On the afternoon of July 19, 1974, Venita Terry was returning home from work when she noticed a black male exiting from the front door of the apartment next door carrying a television set. When he saw her looking at him he re-entered the apartment. Mrs. Terry then went into her own apartment whereupon she discovered her stereo was missing. She immediately called the police and reported a burglary in progress at her neighbor’s apartment.
The first officer to arrive at the scene was John Espinoza. When he approached the front door he noticed the door was open and there were pry marks around the lock. At about the same time another officer arrived and went to the rear door of the apartment. The back door was also open and both officers entered the apartment. There was no one in the apartment.
Officer Espinoza then spoke with Mrs. Terry who advised him the occupant of the apartment, James P. Wallen, would not be home until later in the day. Mrs. Terry told the officer she had seen the black man with the television set, and although she recognized him by sight she did not know his name. She later testified she told the officer the man was the defendant, Darrell Howard. Later that same day the police drove Mrs. Terry to defendant’s house, leaving her in the car while they had him step out on his porch.
When James Wallen arrived home that evening he noted there were marks around the lock on his front door, the kitchen was a mess, and the television set had been moved to the floor.
Defendant was arrested several days later for the burglary of Wallen’s apartment. Wallen testified at trial that he did not know defendant personally but had seen him around the neighborhood. He also stated that several months prior to the burglary defendant and several other persons had come to his apartment and had asked questions about who lived in the apartments.
Another neighbor, Debra Biglow, testified she saw defendant running across her front yard the afternoon of the burglary.
At the preliminary hearing Mrs. Terry stated that she could not see defendant’s face when she was taken to his house, but she did recognize his clothes. Later, at trial, she testified she did indeed recognize his face when she saw him on the porch. She further testified she had dated defendant during high school and she was positive he was the man she saw coming out of the apartment with the television set.
As his initial point, defendant challenges the sufficiency of the evidence to support a conviction of burglary. He acknowledges that on appeal the question 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 when viewed in the light most favorable to the state. (State v. Gobin, 216 Kan. 278, 531 P. 2d 16; State v. Ritson, 215 Kan. 742, 529 P. 2d 90; State v. Platz, 214 Kan. 74, 519 P. 2d 1097.)
As instructed by the trial court, the charge of burglary necessitated a finding of sufficient evidence to establish each of the following elements:
“(1) That on or about the 19th day of July, 1974, in this County and State, the defendant;
(2) Unlawfully, wilfully, knowingly and without authority entered into a building;
(3) Located at 1452 North Hillside, Wichita, Sedgwick County, Kansas;
(4) With the intent to commit a theft therein.”
It was uncontroverted that an unlawful and unauthorized entry was made into the Wallen apartment on the day in question. The only issues remaining were the identity of the culprit and his intent. As to the issue of identity, there was the eyewitness testimony of Mrs. Terry placing defendant at the door of the apartment with the television set in hand. Her testimony, while admittedly contradictory in part, was bolstered by the statement of the neighbor, Miss Riglow, who saw defendant running across her yard that afternoon. In addition, evidence of defendant’s prior conviction for a similar burglary was admitted.
Under varying circumstances we have held that a single eyewitness identification may be sufficient to support a criminal conviction. (State v. Wade, 203 Kan. 811, 457 P. 2d 158; State v. Osburn, 171 Kan. 330, 232 P. 2d 451.) Despite the discrepancies in Mrs. Terry’s trial testimony with her statements at the preliminary examination, we believe there was ample evidence to provide a reasonable inference that it was the defendant who entered the apartment and was seen carrying the television set.
Concerning the issue of intent, we conclude there was sufficient evidence from which the jury could find defendant intended to steal the television set. Mrs. Terry testified she saw defendant carrying the television set out of the apartment and that he reentered the apartment when he saw her. Wallen stated his television set had been moved and his apartment was a mess. When coupled with evidence of defendant’s prior burglary conviction, the jury could reasonably conclude that defendant intended to commit a theft when he entered the apartment.
It is not the function of this court on appellate review of a criminal conviction to weigh the evidence or pass on the credibility of the witnesses. These are matters properly left to the jury. On the basis of the evidence disclosed in the record in the instant case we conclude there was sufficient evidence from which the jury could draw an inference of guilt.
Defendant’s only other claim of error is that the trial court erred in admitting evidence of his prior conviction. During the course of trial, the state announced that it intended to introduce evidence of defendant’s prior conviction for burglary and theft. A hearing was held outside the presence of the jury to- determine the admissibility of such evidence. At that time, Wichita police detective Harley Puckett testified as to the facts of the prior conviction. He stated he was the complaining witness in that case in which charges arose out of the burglary of a residence located in the vicinity of the Wallen apartment. Entry into- the residence was made by forcing open the rear door and one of the items stolen was a television set. The burglary took place nearly two years prior to the present offense.
Defendant objected to the admission of this evidence on the ground the prejudicial effect outweighed its probative value. The state indicated the evidence was offered to prove identity and intent within the meaning of K. S. A. 60-455. The trial court overruled defendant’s objection and permitted the state’s witness to testify before the jury as to the facts surrounding the prior crime. At the conclusion of the evidence the court instructed the jury as to the limited purposes for which the evidence of the prior conviction could be considered.
We agree with the position of defendant in his brief that the question of intent was not substantially in issue. The basic issue was one of identity; that is, was defendant the person seen leaving Wallen’s apartment with the television set.
As to the element of identity, defendant contends the prosecution did not produce a sufficient factual background of the prior conviction to raise a reasonable inference that defendant committed both offenses. In State v. Bly, 215 Kan. 168, 523 P. 2d 397, we emphasized that when a similar offense is offered for the purpose of proving identity, the evidence should disclose sufficient facts and circumstances of the other offense to raise a reasonable inference that the defendant committed both offenses. In the instant case we have no hesitation in holding that the state has satisfied this burden. The record of the hearing held outside the presence of the jury discloses testimony regarding factual similarity of the offense in five respects. First, both convictions were for burglary. Second, in both cases a television set was involved. Third, both burglaries were within five blocks of defendant’s house. Fourth, entry into the residences was gained by forcing open a door. Finally, in both cases no one was home during the burglaries. These facts demonstrate a similarity of pattern in the two crimes which was relevant to the proof of identity.
In light of the nature of the prior offense and the relevancy to proof of the issue of identity, we conclude the probative value of the challenged evidence outweighed its prejudicial effect. We see no prejudicial error in instructing the jury that the prior conviction was admitted for the purpose of proving intent when intent was not a substantial issue and the prior conviction was otherwise admissible.
The judgment of the trial court is affirmed.
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The opinion of the court was delivered by
Kaul, J.:
Defendant-appellant, Rosario Perales, appeals from a conviction by a jury of aggravated robbery in violation of K. S. A. 21-3427.
At approximately 1:30 a. m. on March 29, 1975, Mrs. Barbara M. West was awakened by the ringing of the doorbell and a loud banging or pounding at the front door of her home. Mrs. West left her husband in bed, went to the door and inquired who was there. She testified that thinking the storm door was locked, she opened the inner front door in an attempt to see who was there. Apparently, the storm door was not locked for, as soon as Mrs. West opened the inside door, two armed men rushed through the doorway and she was slammed up against the wall and held by one of the men. The man who held her against the wall was described by Mrs. West as being a short, stocky Mexican-American man wearing a beige ladies’ stocking over his head. This individual was positively identified at trial by Mrs. West as the defendant. She described the other individual, (later identified as Walt Donaho), as a white man about five feet eleven inches or six feet in height, and of slender build. Mrs. West testified that despite the presence of the stocking, the defendant’s face was not distorted enough to prevent her identification of him.
Within a minute or two Mrs. West’s husband, Rex C. West, emerged from the bedroom and was ordered to “hit the floor.” Mrs. West was then ordered to lie prone on the living room floor beside her husband. One of the men asked Mr. West, a drug salesman by trade, where the drugs were kept. Mr. West replied that the pharmaceuticals that he had were in the garage and that he would get up and show them. As he started to get up, West testified that he was told by the Mexican man, “You move again and I’ll blow your brains out.” At this point, the white man proceeded to search the house. He found Mr. West’s billfold and took $400 in cash from it. The two intruders then placed the Wests in their bedroom closet and told them to stay there for fifteen minutes. Mr. and Mrs. West waited a little while in the closet and then called the police.
Detective Ronald Broetzmann came to the West home and took a description of the two assailants from Mr. and Mrs. West.
On the day following the robbery Mr. West received an anonymous telephone call from a lady advising him that Rosario Perales and a man named Walt Donaho had committed the robbery. This information was relayed by West to Detective Broetzmann who was investigating the case. Broetzmann assembled eight “mug shot” photographs representing four white and four Mexican-American men. The photographs were taken to the West residence and separately displayed to Mr. and Mrs. West. Broetzmann testified that the names on the photographs were covered when shown to the Wests and that neither of them could have selected the photograph of defendant by name, but that each “had to know it by face.” Evidence of the Wests’ identification of defendant’s mug shot was admitted at trial. In addition, Mr. and Mrs. West made a positive identification at trial of the defendant as being one of the robbers.
Defendant served a notice of the defense of alibi and called four witnesses to testify that defendant was observed at a night club bar at the time of the robbery. The testimony of the alibi witnesses was not definite as to time. In any event, the jury believed the testimony of Mr. and Mrs. West, rather than that of the alibi witnesses as to the whereabouts of defendant at the time in question.
Defendant raises five points on appeal. His first two points concern the admission into evidence of the eight “mug shot” photographs. In substance, defendant contends there was no proper foundation laid by the state; that the exhibits were prejudicial, irrelevant and of no probative value, and gave rise to an inference that defendant had a prior arrest record. Defendant further complains that he was the only Mexican-American male “having bushy type hair” who was depicted by the photographs. In his brief defendant argues:
“. . . In the photographs of the four Mexican males only one Mexican male had ‘curly hair’. The other three remaining photographs of Mexican males showed one individual as clean shaven with a closely cropped hair cut; one individual neat appearing wearing glasses and another individual being non-descript with neatly trimmed hair. . . .”
In contrast the state says:
“. . . The difference among the physical descriptions of the four Mexican-American males in the photographs used is not as great as appellant indicates in his brief. . . .”
Defendant has not designated nor reproduced the eight “mug shots” in the record, but, nevertheless, he asks that we blindly declare the series of photographs to be unnecessarily suggestive — this we cannot do. It is incumbent upon the party appealing to bring up a complete record of all matters upon which appellate review is sought. (State v. Jones, 214 Kan. 568, 521 P. 2d 278; and State v. Brothers, 212 Kan. 187, 510 P. 2d 608.)
In view of defendant’s alibi defense, the critical issue in this case was identity; thus all matters pertaining to identification procedures were relevant. The admission of all eight photographs was the only way the jury could see just how fair or unfair the identification procedure was by comparing defendant’s characteristics with those of the other men pictured. This is not a case where the evidence was offered to show character as in the case of State v. Minor, 195 Kan. 539, 407 P. 2d 242.
In such cases it is the duty of the trial court to first determine relevancy and then proceed to balance the probative value of the evidence against the prejudicial effect, if any, to the accused. As we have previously indicated, the photographs were not reproduced, but from the record before us, identity was the critical issue, the evidence was relevant and the probative value in showing the identification procedures outweighed any prejudicial effect. In accord see People v. Bleimehl, 9 Ill. App. 3d 273, 292 N. E. 2d 60; State v. Mathis, 261 La. 564, 260 So. 2d 625; and cases collected in 30 A. L. R. 3d, 1975 Supp., Anno. § 3[a], p. 73.
The testimony of Detective Broetzmann and Mr. and Mrs. West fails to disclose that the photographs were shown to either of the Wests in a suggestive manner. Even if there had been some showing of suggestiveness the in-court identifications of defendant by the Wests would be capable of standing on their own. (State v. Bey, 217 Kan. 251, 535 P. 2d 881; State v. Lora, 213 Kan. 184, 515 P. 2d 1086; and State v. Calvert, 211 Kan. 174, 505 P. 2d 1110.) We find no error in the admission of the evidence in question on any of the grounds advanced by defendant.
Defendant’s next point concerns a statement of the prosecutor during closing argument to the effect that defendant committed the crime and will do it again unless he is convicted. In response to defendant’s objection, the trial court ruled:
“For the record, the County Attorney has made the statement that the defendant committed this crime and he’s going to do it again unless he’s convicted. An objection has been made. I will sustain that objection to the extent, members of the jury, that what might happen in the future is pure conjecture and not to be considered.”
The trial court promptly recognized the objectionable aspects of the prosecutor’s statement. We believe the prompt action of the trial court cured any possible prejudice to defendant. In this connection we held in State v. Warbritton, 215 Kan. 534, 527 P. 2d 1050:
“Improper remarks made by the prosecuting attorney in his summation to the jury will not provide a basis for reversal where the jury has been instructed to disregard the same, unless the remarks were so prejudicial as to be incurable.” (Syl. I.)
Defendant’s final two points are stated in this language:
“Point No. 4: The Trial Court erred in overruling the appellant’s motion for directed verdict in that the State failed to rebutí the defendant’s proffered defense of alibi; the burden resting solely with the State to prove its case beyond a reasonable doubt and to disprove the defendant’s defense of alibi which the State, in fact, failed to do.
“Point No. 5: The Trial Court erred in overruling the appellant’s motion for new trial on all points and more particularly the jury’s verdict as returned was contrary to the evidence as presented at the time of trial.”
The applicable rule, so often stated, appears in the recent case of State v. Brown, 217 Kan. 595, 538 P. 2d 631, wherein we held:
“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 when viewed in the light most favorable to the state.” (Syl. 5.)
See, also, State v. Glover, 219 Kan. 54, 547 P. 2d 351; and State v. Sparks, 217 Kan. 204, 535 P. 2d 901.
Obviously, the jury believed the identification testimony of the Wests rather than the testimony of defendant’s four alibi witnesses. This result is easily understandable after a close examination of the record. Two of defendant’s witnesses were unable to pinpoint what night it was that they were with defendant. Another witness, Johnnie Holmes, Jr., placed defendant at a bar on the night in question, but could only say that defendant was “probably there at 1:00 o’clock” and could not positively say defendant was there at 1:30 in the morning. The strongest alibi witness, Benny Guerrero, testified that he observed defendant at the bar at 1:30, but on cross-examination Guerrero admitted that he had been contacted by Walt Donaho and that Donaho told him he had been accused of participating in a robbery and wanted Guerrero to state that he had observed Donaho in the bar at the time the crime was committed. While Guerrero denied any such contact with defendant, nevertheless, his admission, in this regard, could well have affected his credibility in the eyes of the jury.
The record clearly supports the trial court’s refusal to direct a verdict or grant a new trial.
The judgment is affirmed.
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The opinion of the court was delivered by
Schroeder, J.:
This is an appeal in a criminal action from a jury verdict which found Richard B. Boone (defendant-appellant) guilty of two counts of aggravated robbery. (K. S. A. 21-3427.)
The sole question presented is whether the court committed prejudicial error when it admitted state’s Exhibit No. 3, a knife allegedly used in the aggravated robbery, into evidence. The appellant argues no proper foundation existed for its admission into evidence.
It is necessary to briefly recite the facts of this appeal and a companion appeal involving the appellant, State v. Boone, 220 Kan. 758, 556 P. 2d 864. On June 25, 1974, Betty Carter, a manager at the Town and Country Market at 1023 East Lincoln in Wichita, was working alone in the store when it was robbed at about 7:45 a. m. (Hereafter referred to as the East Lincoln robbery.) Betty Carter testified the robber jumped over the counter with a knife in his hand and made her lie on the floor while he emptied the unlocked floor safe and a cash register into a canvas bank bag. A customer, Mr. Richard Kellogg of Wichita, walked in while the robbery was in progress. The robber took his wallet and made him lie down also. The robber then fled on foot.
Betty Carter testified the man who robbed her had on blue jeans and a light blue shirt, and he wore blue track shoes with orange stripes. At 2:30 p. m. on June 25, 1974, the police had Betty Carter view a lineup. She identified the appellant as the robber. Mr. Kellogg was unable to identify the appellant as the person who took his wallet.
On June 25, 1974, when the appellant was arrested, a blue denim shirt and blue tennis shoes with gold stripes down the side were seized. These were similar to those worn by the robber and were admitted into evidence at the trial. A money bag similar to that taken by the robber and checks written by Betty Carter and another employee were found by a Wichita street cleaner on Rock Road and admitted into evidence. Wichita police officer Garrison testified the appellant said he had been at Central and Rock Road seeing about a job at a construction site. Mr. Kellogg’s billfold and identification cards were found under the right front seat of the appellant’s car at the time of his June 25,1974, arrest.
The appellant was apparently released on bond following his first arrest. On August 9, 1974, the appellant was arrested and charged with the aggravated robbery of a Town and Country Market located at 600 South Oliver in Wichita. (Hereafter referred to as the South Oliver robbery.) The facts surrounding this arrest are covered in State v. Boone, 220 Kan. 758, 556 P. 2d 864. In that appeal two men using a gun were involved. Suffice it to say the charges against the appellant were consolidated and were tried one after another to the same jury in what might be characterized as two “mini-trials” with separate defense counsel.
A knife was found in the glove compartment of the vehicle driven by the appellant on August 9, 1974, and admitted into evidence over his objection, in the portion of the trial relating to this appeal. Betty Carter testified concerning the knife marked state’s Exibit No. 3 as follows:
“A. It’s similar to the one he had — I mean, it looks like the one he had in his hand when he jumped over the counter, yes.
“Q. What is it about State’s Exhibit 3, that knife, that is similar to the one he had?
“A. It’s like — you see how it goes down and to the point? That’s what made me . . .
“Q. What about the coloration of the blade?
“A. Yeah, it wasn’t shiny.”
When the state offered the knife and other articles into evidence, the appellant’s attorney objected saying:
“I would object to their admittance into evidence. All she has testified is they look like the same articles. We don’t know where they came from or anything. They could have gotten them from the YMCA for all I know.”
Nevertheless, the court admitted all the offered exhibits.
The state completed its presentation of evidence regarding this appeal and announced it would present no further evidence regarding the East Lincoln robbery. The state then presented evidence regarding the South Oliver robbery in which the appellant was also charged with two counts of aggravated robbery. The appellant moved to suppress the knife found on August 9, 1974, but the motion was denied. The court then relied on the admission of the knife into evidence earlier to again admit it, over objection, into evidence in that portion of the trial relating to the South Oliver robbery-. The court said:
. . I have admitted it in the other case and I am going to admit it in this case, so there won’t be any question about it. . . .”
The jury found the appellant guilty of both counts of aggravated robbery in this appeal involving the East Lincoln robbery and guilty of one count of aggravated robbery in the other appeal involving the South Oliver robbery.
The sole issue on this appeal is whether the trial court committed prejudicial error when it admitted the knife found on August 9, 1974, into evidence. The legality of the August 9, 1974, search which produced the knife is not in issue here. That search was upheld in State v. Boone, 220 Kan. 758, 556 P. 2d 864.
The issue on appeal stems from the trial of consolidated charges which were tried with two separate defense counsel. The statutory language regarding consolidation is found at K. S. A. 22-3202 and K. S. A. 22-3203. These statutes are modeled after Rules 8 and 13 of the Federal Rules of Criminal Procedure. No question regarding consolidation is argued and we think consolidation was proper. (See, State v. Browning, 182 Kan. 244, 320 P. 2d 844; State v. Hacker, 197 Kan. 712, 421 P. 2d 40, cert. denied, 386 U. S. 967, 18 L. Ed. 2d 119, 87 S. Ct. 1050; and State v. Ralls, 213 Kan. 249, 515 P. 2d 1205.)
However, we cannot approve the procedure followed. At trial the jury was instructed as to the procedure being followed so they would not become confused. But the trial court’s procedure, with appointment or retention of two separate defense counsel and a division of the case into two “mini-trials” to accommodate the two defense counsel, is unwarranted. Rule No. 13 of the Federal Rules of Criminal Procedure indicates the procedure when two indictments or informations or both are to be tried together shall be the same as if the prosecution were under a single indictment or information. Previous cases brought to this court’s attention have followed this rule and the defendant on trial had only one defense counsel for all charges.
On the record here presented we cannot say the appellant was prejudiced by the consolidation of the charges for trial.
We now examine the appellant’s contention that the trial court erred when it 'admitted the knife into evidence without a proper foundation. Generally, the foundation to admit physical evidence is determined by the trial judge, who must be satisfied as to its relevance and connection with the accused and the alleged crime. (State v. Mitchell, 220 Kan. 700, 556 P. 2d 874; State v. Rives, 220 Kan. 141, 551 P. 2d 788; and State v. Ponds and Garrett, 218 Kan. 416, 420, 543 P. 2d 967. When a physical object is offered into evidence and a question of fact arises as to its connection with either the defendant or the crime, unless it is clearly irrelevant the object should be admitted for such weight and effect as the jury sees fit to give it. (State v. Ponds and Garrett, supra at Syl. 5.)
Here the connection between state’s Exhibit No. 3, the knife, and the accused was only partially established when the knife was admitted into evidence. At the time of admission, Betty Carter had testified the knife looked like the one used by the robber, whom she had identified as the appellant. It was not until evidence was presented dealing with the South Oliver robbery that Detective Maloney testified the knife had been removed from the glove compartment of a car belonging to another, but driven by the appellant following his August 9, 1974, arrest. This was after the state announced it would present no further evidence concerning the East Lincoln robbery but before the state rested its case in the consolidated trial. Since the charges were consolidated for trial, this simply amounted to the establishment of a valid foundation for the admission of the evidence after its acceptance. However, the order in which the evidence was presented for the admission of the knife into evidence is inconsequential, since the same jury heard all the evidence. To accommodate counsel in the orderly presentation of their case, trial courts frequently admit evidence on the condition that the necessary foundation be established later in the trial to show its relevance. (See, The State v. Rennaker, 75 Kan. 685, Syl. 1, 90 Pac. 245; and 24B C. J. S., Criminal Law, § 1915 [14] [b], p. 101.)
The record indicates both of the appellant’s counsel had an opportunity to cross-examine the witnesses regarding the August 9, 1974, search which produced the knife. (State v. Williams & Reynolds, 217 Kan. 400, 402, 536 P. 2d 1395.)
The appellant contends too great a period of time elapsed between the commission of the Lincoln robbery charges and his arrest on August 9, 1974, to show possession or ownership of the knife. He contends evidence relating to his possession of the knife was too remote and hence inadmissible. There was an approximate six-week time span between the two events.
The appellant’s argument is based on State v. Kehr, 133 Iowa 35, 110 N. W. 149 (1907). There a burglar armed with a revolver broke into a house and fired a shot. When the defendant was arrested two months later, he had in his possession a revolver which the court admitted into evidence. But there was no evidence tending to show the defendant’s revolver fired the bullet in the house, there was no eyewitness identifying the defendant as the burglar, and there was no eyewitness identifying the revolver as similar to the one used by the burglar.
State v. Kehr, supra, is distinguishable. Here Betty Carter identified the appellant as the robber and testified a knife sufficiently connected with the appellant was similar to the one carried by the robber. The time span involved is not so great as to impair the relevancy of the appellant’s possession of a knife similar to the robbery weapon. This court has rejected an identical argument where a two-month time span was involved. (State v. Calvert, 211 Kan. 174, 180, 505 P. 2d 1110.) (See also State v. Mitchell, supra.)
The appellant further contends there is no showing he had exclusive possession of the knife. When arrested on August 9, 1974, the appellant was alone in a station wagon belonging to Janet Moore. The knife was stuck through the fiberboard of the right-hand side of the glove compartment in the station wagon. This is a sufficient connection between the knife and the appellant for its admission into evidence. Lack of ownership in the automobile does not destroy the relevancy of the evidence. (State v. Steward, 219 Kan. 256, 266, 547 P. 2d 773.) The lack of positive identification and ownership of a knife or other weapon found in the glove compartment goes to the weight to be given such evidence, rather than to its admissibility. (State v. Stewart, 219 Kan. 523, 526, 548 P. 2d 787; and State v. Myers, 154 Kan. 648, 121 P. 2d 286.) (See also State v. Dearman, 203 Kan. 94, 97, 453 P. 2d 7, cert. denied, 396 U. S. 895, 24 L. Ed. 2d 173, 90 S. Ct. 194; State v. Ponds and Garrett, supra at 420; and State v. Joseph Little, 201 Kan. 101, 439 P. 2d 383.)
The judgment of the lower court is affirmed.
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The opinion of the court was delivered by
Kaul, J.:
This is an appeal by plaintiff-appellant in a medical malpractice action in which the trial resulted in a jury verdict for plaintiff in the amount of $10,962.00. The injuries suffered by plaintiff resulted from the taking of a teaspoonful of undiluted lactic acid mistakenly administered by his mother. The overall contention is that the verdict was grossly inadequate.
Plaintiff-appellant, Kevin Dean Barnett, was born November 17, 1970, and was three years and ten months of age at the time of trial. When plaintiff was twelve days old he was hospitalized for a vomiting problem. Plaintiff was under the care and treatment of the defendant, Dr. C. T. Hinshaw, a pediatrician, who had practiced his profession in Wichita for forty-five years. While hos pitalized for the vomiting condition, Kevin was treated with atropine solution for the purpose of controlling his vomiting. During eight days of hospitalization Kevin was also given other medications including ascorbic acid, phenobarbital, activated charcoal, and lactic acid formula. Upon Kevin’s release from the hospital his mother was given two prescriptions by Dr. Hinshaw. One prescription was for atropine solution and the other for lactic acid. The atropine prescription directed that one teaspoonful of the solution be given fifteen minutes before feeding. The lactic acid prescription directed that thirty drops be stirred into the baby’s milk formula.
These two prescriptions, both being clear, colorless liquids, were filled by Hawk Pharmacy, Inc., and dispensed in identical amounts (four ounces) in identical amber colored bottles.
The evidence discloses that lactic acid is a corrosive poison if taken internally in its undiluted state but, if taken as directed, it will not cause injury. Neither Dr. Hinshaw nor the pharmacist warned Mrs. Barnett about the corrosive or dangerous propensities of lactic acid if not administered properly. Although the dosage for lactic acid was prescribed in drops, a dropper bottle was not used by the pharmacist because this type of container was not available in the four-ounce size prescribed by the doctor.
After receiving the bottles from Hawk Pharmacy, Mrs. Barnett went home and began mixing the milk formula. Since no dropper came with the bottle of lactic acid she called Dr. Hinshaw and inquired about “. . . how much thirty drops was. . . .” She was informed by the doctor that an eyedropper, she had obtained previously, would be okay for use in measuring the lactic acid. She fed the plaintiff the atropine solution and the formula containing thirty drops of lactic acid at 7:00 p. m. on December 17, 1970. Mrs. Barnett placed the two bottles on opposite sides of her kitchen sink and set her alarm clock to sound at 12:45 a. m., the following morning, for Kevin’s next scheduled feeding. At 12:45 a. m. Mrs. Barnett awoke and gave Kevin a teaspoonful of what she thought was atropine solution. Unfortunately, instead of atropine, she mistakenly fed him one teaspoonful of undiluted lactic acid.
Mrs. Barnett, a high school graduate, testified she did not know at that time that lactic acid was corrosive, but she did associate acid with potentially corrosive and caustic items. She admitted on cross-examination that on the night in question she did not look at the bottle or label before pouring the medication into a teaspoon.
After giving Kevin the lactic acid, Mrs. Barnett, apparently from his reaction to the medicine, immediately realized something was wrong. She awakened her husband, who immediately asked— “are you sure you have given him the right medicine?” Mrs. Barnett went to the kitchen and came back to report that she had given the wrong medication. Her husband then suggested that she call Dr. Hinshaw and see what they should do. Mrs. Barnett called Dr. Hinshaw and related what had happened. According to her testimony he told her to give the child some water, but failed to stress that it was imperative that she get fluids down him immediately, and that the lactic acid could, otherwise, be corrosive or dangerous. She denied that the doctor told her to give him soda water.
Dr. Hinshaw testified to the contrary that, upon being notified of the mistake, he ordered bicarbonate of soda and water and asked Mrs. Barnett to call him back.
Following this telephone call Mrs. Barnett tried without success for more than thirty minutes to get Kevin to drink from a bottle. She did not attempt to telephone Dr. Hinshaw after her unsuccessful attempt to set Kevin to take the water. She had no further conversation with the doctor until 4:00 a. m., approximately three hours after the initial conversation, when Dr. Hinshaw telephoned and asked her about Kevin. During the 4:00 a. m. telephone conversation, Mrs. Barnett reported that she had had no success with the previous instructions. Receiving this information, Dr. Hinshaw immediately went to plaintiff’s home. For approximately an hour Dr. Hinshaw also tried to get Kevin to drink milk, as well as water. The doctor then left for about fifteen minutes and returned, stating Kevin would have to be taken to the hospital. He gave Kevin a shot of penicillin. His mother then took Kevin to Wesley Medical Center.
Subsequently, it was determined that Kevin had sustained burns on his tongue, lining of his mouth and pharynx due to the undiluted lactic acid. Scar tissue ultimately caused a stricture of the esophagus, approximately “one and a half to two inches” in length, necessitating several surgical procedures. For several months Kevin had an artificial opening in his stomach and a tube in his nose and throat for the purpose of procedures to dilate the stricture of the esophagus. He was hospitalized for eighty-seven days at a total expense for medical and hospital treatment of $10,312.10. The residual effects of the injury were scar tissue in the esophagus, scars on his neck and abdomen, gagging or choking on his food two or three times a week, and an increased susceptibility to vomiting. There was also testimony that as Kevin grows older, further treatment and surgery may be needed. Kevin, however, was in general good health at the time of trial and had had no problems for sixteen months.
On January 12, 1973, this action was filed seeking damages from Dr. Hinshaw and Hawk Pharmacy, Inc., a corporation. Plaintiff’s petition alleged joint and concurrent negligence on the part of both defendants. The defendants filed separate answers denying negligence and alleging certain affirmative defenses.
On August 8, 1974, a pretrial conference was held at which plaintiff stated his claims against each defendant. Plaintiff specified six acts of negligence against Dr. Hinshaw as follows:
“1. Failure to instruct or warn plaintiff’s mother that undiluted lactic acid would be harmful and dangerous.
“2. Simultaneously writing two baby prescriptions for clear, colorless liquids in identical quantities, with full knowledge that one was a corrosive poison, without specifying a dropper bottle.
“3. Failure to specify sufficient warning labels for the lactic acid prescription or other means to clearly distinguish the corrosive lactic acid prescription.
“4. Failure to adequately instruct and inform plaintiff’s mother of the corrosive nature of lactic acid, the importance of immediate treatment and neutralization of the lactic acid and the proper treatment and procedures to be followed when advised the plaintiff had received undiluted lactic acid.
“5. Failure to instruct plaintiff’s mother to give plaintiff milk.
“6. Failure to provide emergency treatment to neutralize the lactic acid and to immediately hospitalize and care for plaintiff after being notified that undiluted lactic acid had been ingested.”
On September 20, 1974, plaintiff was granted leave to amend the pretrial order by adding a seventh allegation of negligence against defendant Hinshaw. It reads:
“ ‘Prescribing four ounces of lactic acid which was more than necessary to meet the' immediate needs of plaintiff.’ ”
In the meantime, a settlement between plaintiff and defendant Hawk Pharmacy, Inc., was negotiated and on September 27, 1974, the trial court approved a settlement in the amount of $20,000.00, and entered judgment accordingly.
On September 23, 1974, this case came on for trial. After a four-day trial the jury, as previously noted, returned its verdict for plaintiff in the amount of $10,962.00. Defendant’s liability was dis charged by reason of the settlement judgment against Hawk Pharmacy. In this connection the journal entry of judgment reads:
“The court, on Monday, September 23, 1974, approved a settlement between the plaintiff and Hawk Pharmacy, Inc., in the amount of $20,000, which sum has been paid to the Clerk of this court. The court finds that said sum is a credit against the verdict and judgment of the jury in favor of the plaintiff and against the defendant. The court further finds that said credit is in excess of the verdict and judgment and therefore no sums are due from defendant to plaintiff.”
From the judgment as entered plaintiff has appealed.
The principal contention advanced by plaintiff, and the one we consider of gravest import, is that the verdict was so grossly inadequate as to require a new trial. Plaintiff points out that the verdict exceeded the undisputed actual medical expense by only $649.90. Intertwined with this contention is plaintiff’s further assertion that notes sent in by the jury during deliberations, considered in the light of the small verdict, indicates the jury compromised the issues of liability and damages. Plaintiff points out that the trial record and posttrial affidavits show that the jury was deadlocked on the first six specifications of negligence and agreed only on the seventh. Counsel says the jury then proceeded to allocate twelve percent of plaintiff’s damages to the one point of negligence on which the jury was able to agree. This result, counsel argues, was in effect a special verdict, not authorized by the instructions, plus a hung jury, as to eighty-eight percent of the damages.
The record reveals a bitterly contested and intensely tried lawsuit. The evidence was in sharp conflict. Both sides called highly qualified expert witnesses. William L. Doane, M. D., board certified in the field of family practice and specializing in pediatrics, testified by deposition for the plaintiff. Dr. Doane testified that giving water to an infant who had swallowed undiluted lactic acid “would be a very incomplete and inadequate mode of treatment.” Dr. Doane further testified that:
“. . . [T]he standard approved medical practice would be to give some protein type of material that would render the lactic acid inert, something like milk or eggs that would be readily available in the usual home setting and then immediately to transfer this child to a hospital facility where more definitive and exact and complete care could be rendered.”
Richard Allen Guthrie, M. D., a board certified pediatrician and chairman of the department of pediatrics at Wichita State University, was called by defendant and testified in person. Contrary to plaintiff’s medical witnesses, Dr. Guthrie testified that ordering water, as Dr. Hinshaw did, was appropriate; that milk would have been inappropriate in this case because it might have caused vomiting due to plaintiff’s vomiting problem; and that vomiting would have brought the acid back into the baby’s mouth and esophagus, causing additional injury and pneumonia. Dr. Guthrie further testified that Mrs. Barnett probably would have been more successful in getting plaintiff to take liquids than anyone else, including the hospital staff, because of the baby’s familiarity with his mother. He also said that to have hospitalized immediately after the accident would have caused a delay in getting the patient treated. In conclusion Dr. Guthrie testified that he found nothing inappropriate or wrong in the way Dr. Hinshaw conducted the treatment before and after the accident.
Concerning damages, there is no hint in the record that the jury received any information or learned anything about the Hawk Pharmacy, Inc., settlement. Mr. Barnett, Kevin’s father, testified that the Barnetts had been divorced and that he had agreed to and had paid all of the doctor and hospital bills for Kevin’s treatment, but the jury was not instructed as to what effect, if any, should be given to Mr. Barnett’s payment of the medical bills. The case was submitted to the jury solely on the premise that if it found for plaintiff the jury’s verdict would constitute total compensation for medical expenses and pain, suffering, disabilities or disfigurement. Nevertheless, the jury’s verdict exceeded the undisputed medical expenses by only $649.90.
It is apparent, from the record, that due to the conflicting medical testimony the jury had difficulty in determining the issue of liability. The jury deliberated more than two days before reaching a verdict. During deliberations the jury sent two notes to the court. The first read:
. . ‘Would you put in the record that the jury could only agree on one item, number seven of the plaintiff’s claim.’ ”
The second note read:
“. . . ‘If this case is to be used as a precedent in future cases for the court record, may it be understood that the jury panel agree that the defendant was negligent only,’ and only is underlined, ‘in that he did not advise immediate hospitalization after being notified that the plaintiff had received lactic acid. See Item 7 on page 2 of the plaintiff’s claim.’ ”
We believe the record strongly indicates a compromise on the issues of liability and damages.
It has become a well-established rule in this jurisdiction that where there is ground for a strong suspicion the jury awarded inadequate damages to plaintiff as a result of a compromise involving the question of liability, the verdict should be set aside on motion for a new trial. (Timmerman v. Schroeder, 203 Kan. 397, 454 P. 2d 522; Corman, Administrator v. WEG Dial Telephone, Inc., 194 Kan. 783, 402 P. 2d 112; and Henderson v. Kansas Power & Light Co., 188 Kan. 283, 362 P. 2d 60.)
In discussing the import of the decision in Henderson, we said in Schmidt v. Cooper, 194 Kan. 403, 399 P. 2d 888:
“. . . This decision was predicated on the premise that where, from conflicting evidence as to liability, or from other circumstances appearing in the case, it may plainly be inferred that the scantiness of the jury’s verdict reflects a compromise on the issue of liability, a new trial should be ordered generally. . . .” (p. 407.)
From the conflicting evidence on liability, coupled with the jury’s difficulty in determining the issue, as evidenced by the notes, it may be clearly inferred that the inadequacy of the verdict reflects a compromise by the jury involving the question of liability. Such a compromise infects the entire verdict and renders it totally invalid. (Timmerman v. Schroeder, supra.)
We are well-aware of the general rule that ordinarily the granting of a new trial rests in the sound discretion of the trial court and a ruling thereon will not be disturbed absent a showing of abuse of discretion or other manifest error. We are also cognizant of the rule that a jury is presumed to have acted fairly, intelligently and in harmony with the evidence and the further rule that the same yardstick must be applied to a claim of inadequate verdict as in a case where the verdict is claimed to be excessive. Even though plaintiff’s motion for a new trial was denied by an able judge of long experience, in view of the persuasive evidence of a compromise verdict gleaned from the record, we feel compelled to hold that the ends of justice require a new trial.
In view of our disposition of the appeal, it is unnecessary to consider other points specified by the plaintiff.
The judgment approving the verdict is reversed and a new trial is ordered on all issues.
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The opinion of the court was delivered by
Harman, C.:
James D. Jackson was convicted by á jury of burglary of a liquor store. His motion for new trial was overruled, he was sentenced and now appeals.
The prosecution’s evidence revealed the following. On September 18, 1974, Don Abraham lived on West Twenty-Ninth Street North in Wichita, directly across from the Morris liquor store. At about 12:30 or 12:45 a. m. on that day, while at home in bed, he heard the sound of glass breaking. He went to his front door where he saw a car speed away from the liquor store going west on Twenty-Ninth street. He dressed and went across the street where he discovered the east window of the liquor store had been broken. He yelled back to his wife to call the police. As Abraham started to return to his house he noticed a car approaching the liquor store from the west. Thé car stopped in front of the store. Abraham ducked behind a bush in his yard across the street from the store where he could observe the car and its occupants. He noticed that it was a brown Chevrolet Nova covered with dirt and mud. He could not see a license number because of dirt on the license plate. He saw a person get out of the automobile on the right front passenger side and enter the liquor store through the broken window. There were neon lights around the edges of the three store windows. Inside, the person took several bottles off the top shelf and then went back into the car on the right front side. Meanwhile, and as these events were occurring Abraham was conveying information about them to his wife who was inside the house on the phone relaying the information to the police. The brown Chevrolet then proceeded east on 29th street. Mr. Abraham went into his house and began talking to police by phone. The dispatcher told him the car had been apprehended. Abraham went outside and saw red lights flashing six or eight blocks down the street.
Officer Kuykendall, who was on patrol in the area, proceeded on 29th street toward the Morris liquor store in response to the dispatchers call. He observed a car approaching him which answered the description of the suspect vehicle. He made a U-turn behind the car and activated his siren and red lights. As he overtook the car he noticed that an item was tossed from the vehicle. When the car was stopped with the aid of another officer it had four occupants. Appellant Jackson was seated in the right front passenger seat. Later Officer Kuykendall and another patrolman went to the area where the item was seen being thrown from the car and found a broken half gallon whiskey bottle, labeled Bourbon Supreme. Five other bottles so labeled were also found by police along 29th street in the area. Two were unbroken. The liquor store owner testified six half gallon bottles of Bourbon Supreme whiskey were missing from her store. By reason of her handwriting on the labels she identified the six bottles found along 29th street as her property.
Mr. Abraham was brought immediately to the scene of the arrest where he identified the car which had been stopped by the patrolman as the one he had seen in front of the liquor store and he identified appellant Jackson as the person he had seen entering the store, removing the bottles and departing in the brown Chevrolet. Abraham had observed appellant at a distance which he estimated could have been 100 feet and was not able to see his face. He identified appellant by reason of his body size and features and his clothing. Appellant was described as a very large man attired in light tan shirt and pants. None of the other three occupants of the brown Nova resembled appellant. Later that morning Abraham observed a footprint on the liquor store door. He testified that the print bore ridges similar to those on a boot which was the prosecution’s exhibit 9.
Upon appeal appellant attacks the sufficiency of the state’s evidence in two respects. He says Abraham’s testimony as it related to identification of appellant as the person he saw at the liquor store during the time in question was insufficient to sustain the conviction and similarly the prosecution’s attempt to connect appellant with the crime by means of a footprint on the liquor store door was legally insufficient.
Appellant argues that the conditions under which Abraham viewed the burglar and his failure to see the burglar’s face rendered his identification so suspect that the conviction must be set aside. In this, and in his argument respecting the footprint, appellant focuses on isolated parts of the evidence and would have us ignore its totality, which we cannot do.
Most burglary convictions do not depend on eyewitness testimony for usually none is available. Here the chain of evidence started with the breaking of the window of the liquor store and the hasty departure of a vehicle. After the coast was apparently clear a brown-colored Chevrolet Nova covered with mud appeared on the scene. A person occupying the right front seat was seen entering the liquor store, removing bottles therefrom and departing on the passenger side of the Chevrolet. Contemporaneously these events were reported to police who almost immediately apprehended a suspect vehicle, a description of which had been furnished them. One purloined bottle of whiskey was seen being tossed from that vehicle. Five other bottles missing from the liquor store were found in the immediate area. When the vehicle was stopped just a few blocks from the store appellant was occupying the right front seat. The fact the witness Abraham identified appellant as the burglar and also connected the footprint or boot mark with him were simply circumstances additional to others which sufficiently indicated appellant’s guilt.
Our function on review is to determine whether the evidence is sufficient to form a basis for a reasonable inference of guilt (State v. Gobin, 216 Kan. 278, 531 P. 2d 16). Viewing the prosecution’s evidence as a whole it amply meets that requirement.
Appellant further contends the trial court, over his objection, erroneously received the evidence concerning the footprint on the liquor store door and its similarity to the ridges or tread pattern of appellant’s boot. He concedes, as he must, that expert testimony is not required for footprint testimony and a lay witness is generally allowed to give such testimony provided he bases his conclusion on measurements or peculiarities of the tracks (31 Am. Jur. 2d, Expert and Opinion Evidence, § 124). Here the testimony was such as to be within a lay witness’ competency. Appellant’s argument is that at the time the testimony was given its connection with him had not been shown.
In this appellant is technically correct because the prosecutions exhibit 9 had not yet been identified and his objection made while Abraham was testifying could well have been sustained, or it could have been overruled subject to further foundation being laid. However, for two reasons no prejudice resulted in the ruling: First, as said in State v. Boone, 220 Kan. 771, 556 P. 2d 880, this day decided, “It is not prejudicial to the defendant in a criminal trial when a physical object is initially admitted into evidence without a proper foundation, when subsequent thereto in the same trial testimony is elicited from another witness to establish a valid foundation for the admission of such physical object into evidence.” (Syl. Para. 4.) Here a later witness did identify state’s exhibit 9 as a boot worn by appellant, thus furnishing the missing foundation. Secondly, a later witness, the liquor store owner, observed the marks on the door and the tread pattern of appellant’s boot and, without objection thereto, expressed the same opinion as to their similarity as did the witness Abraham. Thus any possible error in the receipt of the latter’s opinion was rendered immaterial.
The judgment is affirmed.
APPROVED BY THE COURT.
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The opinion of the court was delivered by
Harman, C.:
In this purported divorce action appeal is from an order finding no common law marriage existed between the parties and from an order refusing a hearing on a putative father’s request for custody of a minor child allegedly bom of the parties’ relationship.
Appellant Richard O. Driscoll commenced the proceeding by filing a petition naming Robin L. Driscoll as his common law wife and seeking divorce from her and custody of a minor child, Tisha Jean, bom to appellee during the existence of the marriage. Appellee responded in an answer and cross-petition in which she named herself Robin L. Anderson. She denied everything except residence of the parties and the fact a daughter, Tisha Jean Anderson, had been born to her. She expressly denied the existence of a common law marriage but she asked for divorce, alimony, custody and support money in event the court found there was such a marriage. Trial was had with the result stated and this appeal ensued.
Appellant’s first point on appeal is tantamount to an assertion there was insufficient evidence to support its finding the parties bad not entered into a common law marriage. In view of the fact the trial court in its findings alluded to matters not contained in the record on appeal we have secured a transcript of the proceedings. We summarize its contents.
Appellant, who was thirty-six years of age at the time of trial, gave the following testimony: He and appellee had been living together at an apartment in Wichita for about three or four weeks; appellee was then eighteen years old; some time in June, 1972, he had a conversation with her respecting marriage; just the two of them were present; he said, “Are you my old lady?”; she responded, “Well, I guess, if you want to put it that way”, and they thereby considered themselves married; afterward he put a set of wedding and engagement rings on the third finger of her left hand; she wore the rings; later she introduced him to people as “my old man” and he referred to her as “my old lady”; on one occasion appellant introduced himself and appellee as husband and wife to a prospective landlady (this testimony was substantiated by a friend of appellant who was present at the time); after Tisha Jean was bom appellee sent out birth announcements in her handwriting showing herself and appellant as parents of the child; appellee represented appellant as her husband to hospital personnel so he could see Tisha Jean in the incubator room. Appellant further testified that after they were married they at times would “split up” for a period; appellee had an apartment in her own name; it was a “time of turmoil” and they resided together about one-half of the eighteen month period; the last time 'they “split” was in December, 1973; Tisha Jean’s confinement expense was paid by welfare; he had previously given appellee some money but she hadn’t used it for the baby; appellant filed income tax returns as a single person for the years 1972 and 1973.
Appellee testified she began living with appellant June 30, 1972, for a period of about three months; in September she suggested marriage when she learned she was pregnant; appellant said he had no intention of getting married and he accused another man with whom appellee had previously lived of being responsible for the pregnancy; he threw her and her belongings out; the conversation testified to by appellant respecting the agreement to be married never occurred; he never agreed to be married although later after the child was bom he talked about it; she didn’t want to get married then; appellant’s only talk of marriage referred to future plans so they would be a family and the child would be legally his; the rings appellant gave her were not bought for her as he already had them; she wore them while pregnant to avoid embarrassment and not to signify marriage; she made no representation appellant was her husband; when appellant introduced her to a prospective landlady as his old lady her failure to speak up in objection was to avoid embarrassment for anyone; she never called him “my old man” but referred to him as her boy friend; she did not write out any birth announcements; a girl friend brought a box of printed blank form announcements as a gift to her in the hospital; with her consent the girl friend filled them out, kept one and gave one each to appellant and appellee; none was mailed or delivered to anyone else; during their separations each dated other persons and had different roommates; while apart she paid rent on her apartment under the name Anderson. A social worker who assisted appellee and was familiar with her welfare records testified appellee always used the name Anderson for herself and Tisha Jean.
The essential elements of a common law marriage are: (1) Capacity of the parties to marry; (2) a present marriage agreement between the parties; and (3) a holding out of each other as husband and wife to the public (In re Estate of Keimig, 215 Kan. 869, 872, 528 P. 2d 1228). Although the marriage agreement need not be in any particular form, it is essential there be a present mutual consent to the marriage between the parties (State v. Johnson, 216 Kan. 445, 532 P. 2d 1325).
The burden of proving a common law or consensual marriage rests upon the party asserting it. Generally, the existence of such a marriage is a fact to be proved as other facts are (52 Am. Jur. 2d, Marriage, § 127. p. 978). Here the trial court found there was neither a present marriage agreement nor a public holding out as husband and wife. It goes without saying appellee’s version of events supports both findings. She specifically denied the present marriage agreement asserted by appellant and the holding out as well. These denials suffice to support a negative finding against the one having the burden of proof. The trial court did not act arbitrarily in reaching its conclusions. It manifestly regarded the sporadic cohabitation as a kind of liaison short of consensual marriage recognized by law. This was within its province and the findings may not be disturbed on appeal. We do not retry disputed factual issues.
After the trial court announced its decision that no common law marriage existed appellant stated that as the self-acknowledged father of an illegitimate child he desired to be heard under K. S. A. 1974 Supp. 60-1610 (a) on his right to custody of Tisha Jean. The court declined to conduct such hearing. Appellant now specifies this as error, adding he should be heard also on the issue of visitation rights. We cannot agree.
At the time it declined to conduct a custody hearing the trial court was aware of the pendency of an action in the juvenile court of Sedgwick county, initiated by appellant, to declare Tisha Jean a dependent and neglected child. Such action had not been determined but was being held in abeyance pending conclusion of the divorce proceeding. Thus the juvenile court had at appellant’s instance already assumed jurisdiction of Tisha Jean in a dependency and neglect proceeding. With exceptions not here applicable this type of proceeding is by statute one within the original exclusive jurisdiction of the juvenile court (K. S. A. 38-806 [a] [1]) and where a juvenile court properly finds that a child is dependent and neglected its acquisition of jurisdiction precludes a district court from such jurisdiction as it might otherwise exercise over the custody of such child in a divorce action (Trent v. Bellamy, 164 Kan. 438, 190 P. 2d 400).
Moreover, there never had been any adjudication of Tisha Jean’s paternity — the matter had not been made an issue in the divorce action although some of the evidence necessarily bore upon it. Substantial rights are to be determined in an orderly fashion in a proceeding wherein all pertinent issues can be litigated. Where a child’s paternity is an issue provision should be made for the protection of the child’s rights. Here no request for appointment of a guardian ad litem for the child was made and, of course, none was appointed. (Whether such appointment should be made would depend upon the assertions by the disputants and the possibility of prejudice to the child’s rights under the particular circumstances of the case.) The trial court did not abuse its discretion in denying a further hearing.
The judgment is affirmed.
APPROVED BY THE COURT.
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The opinion of the court was delivered by
Fatzer, C. J.:
This is an appeal from a conviction by jury of the crime of aggravated robbery (K. S. A. 21-3427).
On April 11, 1974, Kenneth Karsk was employed as a clerk at a Quik Trip store located at Woodlawn and 45th Street North in Sedgwick County, Kansas. At approximately 10:45 p. m., he was in a back room when he heard someone enter the store. Upon walking to the counter, Karsk observed a man standing by the sunglasses display trying on a pair of sunglasses. Karsk noticed the man was looking at him in the display mirror and turned away. When Karsk looked up, the man was at the counter holding an automatic pistol. He told Karsk to give him the money, and Karsk obeyed. Karsk then lay on the floor at the robber’s command, and the man left, taking approximately $130.
Following an investigation of the robbery by Sedgwick County Sheriff’s Officers, the defendant Ed Brown was arrested on April 17 and charged with the robbery on the following day. Trial commenced on October 21, 1974, and the jury returned a verdict of guilty on October 24. The defendant’s motion for new trial was denied, and this appeal followed.
The appellant does not attack the sufficiency of the evidence to support his conviction. He asserts the district court committed reversible error in ruling on a pretrial discovery motion and two evidentiary matters at trial.
The appellant’s first contention is that there was no probable cause to believe he had committed the crime in question either at the time of his arrest or at the time he was fingerprinted. Hence, appellant argues, he was arrested and detained illegally, and admission of his fingerprints taken during this illegal detention was reversible error under the authority of Davis v. Mississippi, 394 U. S. 721, 22 L. Ed. 2d 676, 89 S. Ct. 1394. The state agrees that Davis controls this point, but contends the defendant was fingerprinted during a legal detention (i. e. after an arrest based on probable cause) so his fingerprints were properly admitted into evidence.
The appellant was arrested on the evening of April 17 and held in jail that night. The following morning, he appeared in a lineup viewed by Karsk, the store employee. Karsk identified no one in the lineup as the robber. The appellant was detained and was charged with the robbery that afternoon.
It is the appellant’s position that since Karsk failed to identify him at the lineup, there was clearly no probable cause to detain him any longer. Consequently, his fingerprints, which he says were taken after the lineup, were taken while he was illegally detained.
The evidentiary record does not bear this out. A jail employee testified that he took the appellant’s fingerprints on April 17. This was the day appellant was arrested and the day before the lineup. Although counsel argued in his motion to strike the admission of the fingerprint card, in his motion for new trial and in his brief on appeal that the appellant was fingerprinted after the lineup, the evidence speaks for itself.
The pivotal question on appellant’s first point on appeal is, therefore, whether his arrest was based on probable cause.
K. S. A. 22-2401 (c) (1) specifies that a law enforcement officer may arrest a person when he has probable cause to believe the person is committing or has committed a felony.
The probable cause requirement of this statute was recently discussed in State v. Curtis, 217 Kan. 717, 538 P. 2d 1383. There we held:
“Probable cause . . . under the provisions of K. S. A. 22-2401 (c) (1), refers to that quantum of evidence which would lead a prudent man to believe that an offense has been committed. It is not necessary that the evi dence giving rise to such probable cause be sufficient to prove guilt beyond a reasonable doubt, nor must it be sufficient to prove guilt is more probable than not. It is only necessary the evidence lead the officer to believe that guilt is more than a possibility, and it is well-established that the belief may be predicated in part upon hearsay information. (Syl. 1.)
“The quantum of information which constitutes probable cause to arrest must be measured by the facts of the particular case. (Syl. 2.)
“In determining probable cause, all the information in the officer’s possession, fair inferences to be drawn therefrom, and observations made by him are generally pertinent, and facts may be considered that would not be admissible on the issue of guilt.” (Syl. 3.)
In the instant case, information gathered by officers in the days following the robbery implicated Ray Haney and the defendant Ed Brown. Haney was arrested and signed a written waiver to search the residence he shared with Ed Brown. While Detective Michael was conducting the search, the defendant arrived at the residence and was thereupon arrested. At the time of arrest, Detective Michael had the following information: (1) a description and composite drawing of the robber and a description of the gun used, (2) accounts by two witnesses to the effect that Haney and the defendant were seen in a blue Firebird at 6:30 p. m. on the evening of the robbery, that Haney and a man resembling the defendant were seen near the Quik Trip in a blue Firebird shortly before the robbery, and that Haney had told a witness he had robbed the store. Before defendant’s arrival at the residence, the search had revealed a gun matching the description of the one used in the robbery and personal papers of the defendant. When the defendant appeared at the residence, he was wearing a jacket matching the description of the robber’s jacket.
On the basis of this evidence, we have no hesitancy in holding the arrest was based on probable cause and that the appellant’s fingerprints were taken while he was lawfully detained.
The appellant’s second contention is that the trial court erred in refusing to admit exculpatory statements made by Ray Haney to Stephen Sleeper which appellant argues fall within the exception to the hearsay rule found in K. S. A. 60-460 (d) (3).
During the course of the trial, testimony of defense witness Stephen Sleeper concerning a conversation he had with Ray Haney was proffered outside the presence of the jury. Sleeper testified that on Sunday, April 14, 1974, he received a telephone call from a person he recognized as Ray Haney. Haney told Sleeper, “I robbed the Quik Trip last night.” Sleeper testified that Haney implicated no other person in the robbery.
Following this testimony, appellant’s counsel urged its admission under the 60-460 (d) (3) exception to the hearsay rule. The court ruled it inadmissible, stating:
“. . . the Court is well aware that both the state and the defendant would like to offer statements made by Mr. Haney in this trial. Neither one wants to offer the same statements, but each would like to offer it. The fact remains that all of such statements are hearsay. Whether they are admissible under this thing is the question placed to the Court, whether any part of them are an exception. With the specific request made, I do not know how the Court could make any of the findings required by this court. Upon what would I base a finding that the statement which is in conflict with the evidence as to what has already been offered as to one of the conversations, was made, find that this is the way it was made, made at a time when it had been recently perceived by him while his recollection was clear and was made in good faith with no intention to falsify or distort? I have no basis of knowing anything about Mr. Haney, I’ve never seen him or heard him. And anything Mr. Haney said is hearsay, what you want to offer (Addressing Mr. Lawing), and what you want to offer (Addressing Mr. Sherwood). And I don’t see any basis from either to find it an exception on the evidence that has been submitted to me on either side. And Court finds that as hearsay it is not admissible.” (Emphasis added.)
Under K. S. A. 60-460, evidence of a statement, which is made .other than by a witness while testifying at a hearing, offered to prove the truth of the matter stated is hearsay evidence and is inadmissible unless it falls within one of the enumerated exceptions. Under the exception specified in 60-460 (d) (3), a statement which is hearsay evidence is admissible if the following conditions are satisfied: (1) the declarant is unavailable as a witness, (2) the statement narrates, describes or explains an event or condition, (3) the judge finds [a] the declarant made the statement at a time when the matter had been recently perceived by him and while his recollection was clear, [b] the declarant made the statement in good faith prior to the commencement of the action, and [c] the declarant made the statement with no incentive to falsify or to distort.
In the case at bar, there is no question the declarant was unavailable as a witness. At the time of trial, Haney’s whereabouts were unknown; a warrant for his arrest was outstanding and neither law enforcement officers nor the appellant could locate him. There is also no question that Haney’s statement narrated, described or explained an event. There is some question, however, whether the statement referred to the right event. Haney made the statement on April 14. The robbery for which the appellant was charged occurred on April 11. Haney is said to have stated he robbed the Quik Trip “last night.”
This hearsay exception allows for a considerable passage of time, so long as the statement was made at a time when the event could still be reasonably classified as “recent” and the declarant’s memory was still unclouded. Smith v. Estate of Hall, 215 Kan. 262, 524 P. 2d 684. Here the statement was made three days after the robbery and could reasonably have met time and recollection requirements. The statement was made three days before Haney was arrested, so it was clearly made prior to the commencement of the action. It could be argued that since the statement was made prior to the commencement of the action it necessarily was made in good faith.
Whether the statement was made with no incentive to falsify or distort is a more troublesome question. “[T]he presence or absence of such an incentive is a question of fact, to be determined by the trial judge in the light of all the circumstances.” Smith v. Estate of Hall, supra at 268, 524 P. 2d at 689. This court is in no better position than the trial court to decide whether Haney had any incentive to distort or falsify his statement.
In view of the foregoing, we hold that the district court did not err in refusing to admit Haney’s statement as an exception to the hearsay rule under K. S. A. 60-460 (d) (3). We intimate no opinion as to whether the statement may have fallen within some other exception to the hearsay rule.
The appellant’s final specification of error is that the trial court erred and abused its discretion by refusing to allow the appellant the opportunity to inspect prior to trial a composite drawing in the District Attorney’s possession.
The day after the robbery, the store clerk, Mr. Karsk, gave the police a description of the robber. From this description, a composite drawing of the robber was made. Seven days after the robbery, Karsk viewed a lineup in which defendant appeared. Karsk could make no identification at the time. Some two weeks later at the preliminary examination, Karsk identified defendant as the robber.
Following the preliminary examination and arraignment, defendant filed a discovery motion pursuant to K. S. A. 22-3212 (2) asking for an order requiring the prosecution to permit defendant to inspect the composite drawing and other specified items in the prosecution’s file. The portion of the motion asking to inspect the composite was denied.
K. S. A. 22-3212 (2) provides:
“Upon motion of a defendant the court may order the prosecuting attorney to permit the defendant to inspect and copy or photograph books, papers, documents, tangible objects, buildings or places, or copies, or portions thereof, which are or have been within the possession, custody or control of the prosecution upon a showing of materiality to the case and that the request is reasonable. Except as provided in subsections (1) (b) and (1) (d), this section does not authorize the discovery or inspection of reports, memoranda, or other internal government documents made by officers in connection with the investigation or prosecution of the case, or of statements made by state witnesses or prospective state witnesses (other than the defendant) except as may be provided by law.”
In our view, a composite is not an “internal government document,” see United States v. Barber, 297 F. Supp. 917 (D. Del. 1969), or a “statement,” see United States v. Zurita, 369 F. 2d 474 (7th Cir. 1966), but is a “tangible object.” As such, it is discoverable under K. S. A. 22-3212 (2) subject to a showing of materiality and reasonableness by the defendant and to the discretion of the trial court.
In the case at bar, the requirements of materiality and reasonableness seem satisfied. In view of Mr. Karsk’s inconsistencies in identifying the appellant as the robber, the composite drawing seems material to the defense of mistaken identity. The request for the composite was reasonable under the circumstances. It was, therefore, within the discretion of the district court to permit the defendant to inspect and copy the composite drawing prior to trial.
K. S. A. 22-3212 places broad discretion in the district court in ruling on a discovery motion. Such a ruling will be set aside on appeal only upon a showing of abuse of that discretion. State v. Rogers, 217 Kan. 462, 537 P. 2d 222; State v. Hill, 211 Kan. 287, 507 P. 2d 342.
Past pronouncements of this court provide some guidance for the district court in the exercise of its discretion under 22-3212 (2).
In State v. Hill, supra at 294, 507 P. 2d at 349, we urged trial courts to use their discretion under 22-3212 to effect economies in time, money and judicial and professional talents, and to permit thorough preparation for trial on both sides.
In State v. Humphrey, 217 Kan. 352, 537 P. 2d 155, we observed that in view of the stated purpose of the Kansas Code of Criminal Procedure — to provide for the just determination of every criminal proceeding and to secure simplicity in procedure, fairness in administration and elimination of unjustifiable expense and delay— the criminal discovery provisions should be liberally construed and the scope of discovery should be as full and complete as is reasonably possible under the circumstances. We also noted that the American Bar Association Standards for Criminal Justice relating to Discovery and Procedure Before Trial sanction discovery prior to trial which is as full and free as possible consistent with protection of persons, effective law enforcement, the adversary system and national security. We stated that — consistent with our criminal code and the ABA Standards — a trial court should liberally grant a defendant’s discovery motion under 22-3212 “unless there is a good sound reason to deny discovery.” Id. at 359-60, 537 P. 2d at 161.
In view of the foregoing, we believe the district court in the instant action should have permitted the defendant to inspect the composite prior to trial pursuant to his discovery motion. However, under the facts of the case at bar, we are not persuaded the district court’s denial of defendant’s discovery motion for the composite amounted to an abuse of discretion requiring reversal.
The appellant argues that his inability to inspect the composite prior to trial effectively limited his constitutional right to cross-examine his accusers. Mr. Karsk, the store employee, was the state’s witness who identified the appellant as the robber. The appellant sought to render this identification suspect through his cross-examination.
On cross-examination, Karsk testified as to the description of the robber he gave sheriff’s officers on which the composite was based. Variances in height and length of hair in the trial testimony and the written description actually given officers were stressed in appellant’s closing arguments. It seems the trial testimony more accurately described the appellant than the description given the day after the robbery. Karsk’s inability to identify the appellant in the lineup was also explored on cross-examination.
The state sought to rehabilitate Karsk on redirect by having him explain the reasons he had been unable to identify the appellant in the lineup. Karsk then testified there was now no question in his mind as to who robbed him, and he identified the composite alluded to on cross-examination.
On recross-examination, Karsk was shown a photograph of the lineup in which the appellant appeared. Karsk testified that picture accurately represented the appellant as he appeared in the lineup and that he had been unable to identify the appellant as the robber at that time.
Both the lineup photograph and the composite were admitted into evidence, thereby showing the appellant’s actual appearance at the lineup and indicating any disparities in his appearance and the description Karsk had given.
We fail to see how the appellant’s having access to the composite prior to trial would have allowed a more effective impeachment of Karsk’s identification than actually occurred.
The judgment is affirmed.
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The opinion of the court was delivered by
Schroeder, J.:
This is an appeal in a criminal action by Jesse L. Thomas (defendant-appellant) from a jury verdict which found him guilty of aggravated battery. (K. S. A. 21-3414.) The appellant challenges the sufficiency of the evidence and contends numerous trial errors were committed.
Larry Pennington, the complaining witness, owed the appellant $100. On April 10, 1974, Larry Pennington was half asleep on a couch at Rufus Owens’ residence at 2208 East 20th Street in Wichita, Kansas. Larry Pennington testified the appellant entered the Owens’ residence and hit him on the side of the head, although he did not see what the appellant hit him with at that time. Mr. Pennington testified he and the appellant got to tussling and the next thing he knew he was looking at the barrel of a twelve gauge sawed-off shotgun. Larry Pennington then passed out and was taken to the hospital. The hospital staff applied three or four stitches to a cut under his chin, took some x-rays of his head, and gave him pain medication.
Rufus Owens corroborated Mr. Pennington’s story. He testified he saw the appellant come in and hit Mr. Pennington with a sawed-off twelve gauge shotgun, first on the top of the head and then on the side. Mr. Owens’ wife eventually called the police and the appellant and two codefendants left.
The investigating police officers testified the witnesses told the same story of the appellant clubbing Mr. Pennington in the face with the butt end of a shotgun at the time they investigated the incident.
The appellant testified he and Rilly J. Thomas and Nathaniel L. Lane (codefendants) observed Larry Pennington’s car at the Owens’ residence. The appellant entered and asked Larry Pennington for his money. When Larry started lying, the appellant hit him with his fist on which he was wearing a ring. The appellant testified he had no weapon at any time.
The two codefendants corroborated the appellant’s story by testifying they would have seen a gun if it existed but the appellant had no shotgun.
Testimony was also conflicting as to the place of arrest. The appellant, his two codefendants, and two other witnesses testified the police arrested the appellant near Frank English’s residence at 1132 North Grove. According to the appellant and his witnesses the police arrested him before he or the codefendants entered the English residence. However, the arresting officer testified the three men were not in the appellant’s car, but rather came out of the English residence when the police pulled up to that house. A search of the men and the car, but not the residence, failed to disclose any weapons.
On May 15, 1974, an information was filed. On September 25, 1974, the jury found the appellant guilty of aggravated battery, and appeal has been duly perfected.
Various evidentiary rulings of the trial court are attacked. It is first contended the trial court erred in excluding the testimony of Frazzie Wynn proffered by the appellant’s counsel. The appellant’s counsel stated Mr. Wynn would testify that an offer was made by the complaining witness, Larry Pennington, for a large sum of money to drop the case at his insistence and not at the re quest of anyone else. Counsel for the state objected because the appellant’s counsel had prevented him from pursuing this avenue when they examined Mr. Pennington. The state’s version was that the appellant was instrumental in making the offer of money. The trial court sustained the state’s objection to the appellant’s proffer.
The appellant’s successful exclusion of similar evidence is significant. It is settled law that one who by his own acts invites error is in no position to complain or take advantage of it on appeal. (State v. Champ, 218 Kan. 389, 392, 543 P. 2d 893; State v. Henderson, 205 Kan. 231, 238, 468 P. 2d 136; and State v. Cantrell, 201 Kan. 182, 187, 440 P. 2d 580, cert. denied, 393 U. S. 944, 21 L. Ed. 2d 282, 89 S. Ct. 315.) Thus, a party who has had evidence excluded is estopped to complain of the subsequent exclusion of similar evidence offered by him'. (5 C. J. S., Appeal & Error, § 1506d, p. 904; and 5 Am. Jur. 2d, Appeal and Error, § 718, p. 163.)
Appellant’s counsel made no attempt to recall Larry Pennington and let him testify as to his version of the alleged bribery attempt. On this state of facts we cannot say the trial court erred in excluding the appellant’s proffer designed to attack the credibility of Larry Pennington as a witness. It is settled law the extent of cross-examination on the issue of credibility of a witness rests in the sound discretion of the trial court, and there must be a showing of abuse of discretion or prejudice to the appealing party before a reversal is justified. (State v. Watkins, 219 Kan. 81, 86, 547 P. 2d 810; and State v. Nix, 215 Kan. 880, 884, 529 P. 2d 147.)
The appellant contends the trial court erred in permitting the state to impeach the testimony of Frank English by introducing evidence of a prior burglary conviction. Frank English testified the police stopped the appellant and the codefendants when they were getting out of their oar and before they entered his residence as the police testified. The state, over objection, introduced evidence of a prior burglary conviction to impeach the witness’s credibility. Burglary falls within the category of crimes which involves dishonesty and is admissible for the purpose of impeaching a witness’s credibility. (K. S. A. 60-421; State v. Price, 215 Kan. 718, 723, 529 P. 2d 85; Tucker v. Lower, 200 Kan. 1, 434 P. 2d 320; and see Gard, Kansas Code of Civil Procedure Annotated, § 60-421, p. 393.)
In Ladd, Credibility Test — Current Trends, 89 Univ. Pa. L. Rev. 166 (1940) it is said:
. . On the other hand robbery, larceny, and burglary, while not showing a propensity to falsify, do disclose a disregard for the rights of others which might reasonably be expected to express itself in giving false testimony whenever it would be to the advantage of the witness. If the witness had no compunctions against stealing another’s property or taking it away from him by physical threat or force, it is hard to see why he would hesitate to obtain an advantage for himself or friend in a trial by giving false testimony. Furthermore, such criminal acts, although evidenced by a single conviction, may represent such a marked breach from sanctioned conduct that it affords a reasonable basis of future prediction upon credibility. . . .” (p 180.)
The appellant contends his due process rights were violated by the prosecutor’s misconduct during closing argument. Although no record was taken during the closing argument, the appellant’s trial counsel attempted to comply with K. S. A. 1975 Supp. 60-2701, Rule No. 6 (m) and filed an affidavit alleging that the state in closing remarked that the appellant “headed up or was leading a vigilante committee” at the time of the incident.
The state’s evidence showed at the time of the assault the appellant told the codefendants to “watch the door.” One codefendant was standing at the front door and another went to the kitchen door. When Rufus Owens told his sister to call the police, one oodefendant snatched the phone out of her hand. The other codefendant told the witness not to move. If the codefendants were following the appellant’s instructions in forcibly collecting a debt, the state’s characterization is not unjustified. The court instructed the jury that the verdict must be founded entirely upon the evidence admitted; that the statements, arguments and remarks of counsel were intended to help understand the evidence and apply the law, but were not evidence; and that the jury should disregard any utterance of counsel that had no basis in the evidence. Thus, no prejudice to any substantial rights of the appellant is demonstrated. (State v. Watkins, supra; State v. Murrell, 215 Kan. 10, 13, 523 P. 2d 348; and State v. Neil, 203 Kan. 473, 476, 454 P. 2d 136.)
The appellant next contends the trial court erred in overruling his motion for judgment of acquittal under K. S. A. 22-3419. This statute is construed and the tests to be applied by the trial court in passing upon a motion for judgment of acquittal are set out in State v. Gustin, 212 Kan. 475, 510 P. 2d 1290, where the court held:
“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.)
(See also, State v. Holloway, 219 Kan. 245, 255, 547 P. 2d 741; State v. McCorgary, 218 Kan. 358, 367, 543 P. 2d 952; and State v. Rasler, 216 Kan. 582, 583-584, 533 P. 2d 1262.)
Here the appellant admitted he beat Pennington. Rufus Owens and Pennington testified the appellant used a sawed-off shotgun in the beating. It is uncontroverted that Pennington sustained serious injuries requiring emergency medical treatment. The jury was properly instructed on aggravated battery and the lesser offense of battery. They found the appellant guilty of aggravated battery.
The appellant contends the evidence was insufficient to support the jury verdict. The fact Pennington may have owed the appellant money is not a defense to aggravated battery under the circumstances involved. (See, State v. Pierce, et al., 208 Kan. 19, 26, 490 P. 2d 584; and State v. Russell, 217 Kan. 481, 536 P. 2d 1392.) Likewise the fact no shotgun was found is not crucial as the appellant contends. The jury could have believed a weapon was used but never located. (State v. Carney, 216 Kan. 704, 533 P. 2d 1268; State v. Johnson, 210 Kan. 288, 502 P. 2d 802; State v. Sagebiel, 206 Kan. 482, 480 P. 2d 44; and State v. Potts, 205 Kan. 42, 468 P. 2d 74.) In the alternative the jury could have found the appellant guilty of the crime of aggravated battery even if they did not'believe a weapon was used. (K. S. A. 21-3414.)
The jury found sufficient intent to convict the appellant of aggravated battery. In State v. Gatewood, 169 Kan. 679, 221 P. 2d 392, intent was defined as:
“. . . [A] state of mind existing at the time an offense is committed and [it] may be shown by acts, circumstances and inferences reasonably deducible therefrom and need not be established by direct proof.” (Syl. 3.)
One is presumed to intend the natural and probable consequences of his voluntary acts. (State v. Donahue, 197 Kan. 317, 416 P. 2d 287.)
Under all the facts and circumstances a jury could reasonably have drawn an inference of guilt of aggravated battery. In State v. Kelly, 210 Kan. 192, 499 P. 2d 1040, the court held:
“Before a verdict of guilty, which has been approved by the district court, may be set aside because of insufficient evidence, it must clearly be shown that upon no hypothesis whatever is there substantial evidence to support the conclusion reached by the district court.” (Syl. 3.)
(See also, State v. Kane, 218 Kan. 13, 542 P. 2d 335; and State v. Torline, 215 Kan. 539, 527 P. 2d 994.)
Under the facts and circumstances involved, there is sufficient evidence to support the conviction. Accordingly, the judgment of the lower court is affirmed.
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The opinion of the court was delivered by
Schroeder, J.:
This is an appeal in a criminal action from a jury verdict which found Robert Eugene Mitchell (defendant-appellant) guilty of aggravated robbery. (K. S. A. 21-3427.)
The appellant contends prejudicial error was committed by the admission of statements in evidence concerning his arrest on a similar charge, by the introduction of a weapon similar to the holdup weapon and by the suggestive use of photographs.
On June 18, 1974, Mark McCumin, the assistant manager of Pier I Imports at 5301 Johnson Drive, Mission, Kansas, was counting money in the upstairs office when a man went up there, pulled an automatic pistol and said, “give me the money.” Mr. McCurnin, who had previously observed the man in the well-lighted store, went to within three feet of the robber and turned the money over. Mr. McCumin described the robber as a Caucasian of fair complexion, 5' 9" to 5' 10" and 130 to 140 pounds.
Kathy Minteer, a cashier at Pier I on June 18, 1974, noticed a man 5' 6" to 5' 7" with dark hair and a dark tan who kept his face hidden from her with an Indian print bedspread over his shoulder, but she could not identify the appellant as the man in the store. The robber left the store with the Indian print bedspread which he used to open the door to avoid fingerprints.
On June 29, 1974, the appellant was arrested and charged with attempted robbery. He was searched incident to the arrest and a nine millimeter automatic pistol was taken from him. The charge against the appellant on the June 29th incident was tried first, and his motion for a judgment of acquittal was sustained at the close of the state’s evidence.
On July 8, 1974, five photographs were placed on a table by the police and viewed by Mr. McCumin. Mr. McCumin picked a photograph of the appellant as the man who robbed Pier I. At trial Mr. McCumin stated there was no doubt the appellant was the robber. He identified the gun taken in the June 29th arrest as similar to the gun used in the robbery.
The appellant did not testify. His only evidence was presented by way of an alibi. After all the evidence was heard, the jury deliberated for eight hours and found the appellant guilty of aggravated robbery.
The appellant first contends prejudicial error was committed when the state introduced statements into evidence that the appellant had been arrested upon a similar charge. The appellant argues the prejudicial remarks commenced in the state’s opening statement when the prosecuting attorney stated:
“Then, ladies and gentlemen, the State intends to prove that on the 29th day of June of 1974 this defendant, Robert E. Mitchell, was arrested by a police officer, Mr. Mall, at a K-Mart store. He was searched incident to that arrest and a nine millimeter automatic pistol was taken from his possession. This pistol taken from the possession of the defendant matches that given by the victim, Mr. Mark McCumin,”
During the trial some further facts regarding the appellant’s arrest and possession of an automatic pistol were elicited. The defense called as a witness Detective Steve Rainey of the Johnson County Sheriff’s Department. In response to a proper question on cross-examination by the prosecutor concerning dates on the photographs shown to Mr. McCurnin, Detective Rainey stated, “Mr. Mitchell was arrested prior to this offense for a similar offense.”
This was an unforeseeable and unresponsive answer to the question. The appellant’s objection to this statement was sustained and the court admonished the jury to disregard the statement. The appellant’s motion for a mistrial was overruled. The prosecutor then commenced his next question as follows, “Q. Mr. Rainey, without making any reference to the arrests or anything of that nature. . . .”
The appellant contends the cumulative effect of this information prejudiced the jury. He also argues the June 29th arrest was totally irrelevant, incompetent and immaterial to this case.
Here the prosecution’s opening statement and its evidence in chief were specifically limited to the fact of the arrest of the appellant on June 29, 1974, at a K-Mart store, the search of his person incident to that arrest, and the seizure of a Browning nine millimeter automatic pistol by the arresting officer. The prosecution’s purpose in showing the appellant’s subsequent arrest was to show the lawfulness of the search of the appellant on June 29, 1974, which produced the automatic pistol taken from his possession and that pistol taken from the appellant was similar to the one used by the gun-wielding robber at the Pier I Imports store on June 18, 1974. The evidence was relevant to prove one of the primary issues in the trial of the case, the identity of the appellant.
The fact that the appellant was charged and acquitted of the attempted robbery at the K-Mart store on June 29th for failure of the state to establish an overt act is totally immaterial to the instant case. The jury was never apprised of these facts. The unsolicited remark of Detective Rainey, who erroneously referred to a “prior” similar offense, was stricken by the trial judge and the jury admonished to disregard the remark. This will be discussed later in the opinion.
Concededly, evidence of other crimes is not admissible to show a disposition of the defendant in a criminal action to commit crime. However, if evidence is relevant to show commission of the offense charged, such as the identity of the criminal, it is admissible independent of K. S. A. 60-455. The fact that it may tend to connect the appellant with another crime does not render it incompetent. (State v. Solem, 220 Kan. 471, 476, 552 P. 2d 951; State v. Farris, 218 Kan. 136, 542 P. 2d 725; and State v. Rasler, 216 Kan. 582, 533 P. 2d 1262.) A thorough discussion on this subject is found at 1 Wharton’s Criminal Evidence, §241, et seq., 13th Ed. (1972); and 1 Underhill’s Criminal Evidence, § 205, et seq., 6th Ed. (1973).
If any error was committed by Detective Rainey’s remark, we hold the unsolicited and unresponsive remark constituted harmless error under the circumstances. (State v. Robinson, 219 Kan. 218, 547 P. 2d 335; State v. Bradford, 219 Kan. 336, 548 P. 2d 812; and State v. Childs, 198 Kan. 4, 11, 422 P. 2d 898.) These cases dealt with an unforeseeable and unresponsive answer to a proper question. The cases recognize it is impossible for the court in advance to exclude an improper answer to a proper question. Therefore, the cases seem to turn on whether a limiting instruction was given and the degree of prejudice. In the case at bar any possible prejudice to the appellant was cured by the court’s admonition to the jury. (State v. Bradford, supra at 338; State v. Holsey, 204 Kan. 407, 464 P. 2d 12.)
A defendant is entitled to a-'fair trial but not a perfect one. The erroneous admission of evidence during a trial does not in every case require a reversal of a conviction. It is only where the erroneous admission of evidence is of such a nature as to affect the outcome of the trial and amounts to denial of substantial justice that a conviction must be reversed. (State v. Bly, 215 Kan. 168, 523 P. 2d 397; and State v. Farris, supra at 140.) Counsel for the state argue in the appellee’s brief that a limiting instruction on evidence relating to the arrest was given. However, the limiting instruction is not included in the record.
The appellant next contends prejudicial error was committed when the state introduced a weapon insufficiently identified as the weapon used in the Pier I Imports store robbery.
Mr. McCumin was asked if he recognized the pistol taken from the appellant at his June 29th arrest. He testified, “This looks very much like or looks very similar to the one he was using.” Cross-examination revealed that Mr. McCumin had described the robber’s weapon as having a lightness around the barrel. Although the weapon introduced by the state had no light-colored barrel, Mr. McCurnin explained the description as possibly being the reflection of the fluorescent lighting in the store. Despite vigorous cross-examination, Mr. McCumin maintained the weapon taken from the appellant at the time of his arrest looked very similar to the robbery weapon.
A similar situation existed in State v. Ponds and Garrett, 218 Kan. 416, 543 P. 2d 967. There this court held:
“Where a weapon found in the possession of a defendant is identified as being similar to one used in the crime, the lack of positive identification goes to its weight as evidence and not to its admissibility.” (Syl. 6.)
“The admissibility of physical evidence is to be determined by the trial judge, who must be satisfied as to its relevance and its connection with both the accused and the alleged crime.” (Syl. 4.)
“When a physical object is offered in evidence and a question of fact arises as to its connection with either the defendant or the crime, unless it is clearly irrelevant the object should be admitted for such weight and effect as the jury sees fit to give it.” (Syl. 5.)
Generally, the admissibility of physical evidence is within the sound discretion of the trial court, subject to exclusionary rules, and is to be determined by the court on the basis of its relevance. (State v. Beard, 220 Kan. 580, 552 P. 2d 900; and State v. Brown, 217 Kan. 595, 538 P. 2d 631.) Examining the facts here, the automatic pistol was sufficiently identified to be admissible in evidence. No abuse of discretion is shown.
The appellant next contends prejudicial error was committed by the manner in which photographs were shown to the complaining witness. He alleges the photographs suggestively and impermissibly pointed to him. He further contends the state was unable to produce the photograph actually exhibited to the complaining witness, thus denying his counsel an ample opportunity to cross-examine the complaining witness.
Clearly a photographic identification procedure which is “so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification” will be set aside. (Simmons v. United States, 390 U. S. 377, 384, 19 L. Ed. 2d 1247, 88 S. Ct. 967; and State v. Nesmith, 220 Kan. 146, 148, 551 P. 2d 896.) But the appellants contentions are based largely on conjecture. Detective Rainey testified neither he nor Detective Scofield in any way suggested to Mr. McCumin which photograph was the one of the suspect in the Pier I robbery. Nothing in Mr. McCurnin’s testimony indicates the police suggested a particular photograph. Mr. McCumin had ample opportunity to view the unmasked robber in a well-lighted store. When Mr. McCumin first passed the appellant, his attention was drawn to the appellant because the appellant gave him a very funny stare. Mr. McCumin’s photographic identification was made approximately three weeks after the robbery, and Mr. McCumin was positive in his identification. (See, Neil v. Biggers, 409 U. S. 188, 34 L. Ed. 2d 401, 93 S. Ct. 375; and State v. Nesmith, supra at 148.)
Mr. McCumin described the robber as one in his early twenties. By examining the back of the photos, which were not shown to the witnesses, it can be ascertained that two photographs were of men in their early thirties. No objection was made as to the other three photographs. On the record presented we find no impermissible suggestions in the photographic identification procedure on this point. (See generally Annot., 39 A. L. R. 3d 1000 [1971].)
Furthermore, the front of the photographs show the dates they were taken. The appellant’s photograph was taken shortly after his June 29, 1974, arrest. The other photographs were taken in December 1972, May 1969, April 1967 and July 1969. Because the appellant’s photograph was the most recently taken, he argues this suggested he was the robber. No basis exists for such a conclusion. As the state argues, the police could very well have recently discovered that a likely suspect was an individual who had been arrested for another offense and had been photographed several years ago. In other cases involving dates on the front of photographs, witnesses have not connected the dates on the photographs with a particular defendant. (Reed v. State, 281 A. 2d 142 [Del. Sup. 1971]; People v. Hart, 10 Ill. App. 3d 857, 295 N. E. 2d 63 [1973]; United States v. Counts, 471 F. 2d 422 [2d Cir. 1973], cert. denied, 411 U. S. 935, 36 L. Ed. 2d 395, 93 S. Ct. 1909; United States ex rel. Reed v. Anderson, 343 F. Supp. 116 [D. Del. 1972]; and Frederick v. Reshetylo, 363 F. Supp. 956 [N. D. Ohio 1973].)
On the facts and circumstances presented by this record, we cannot say the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.
Because the police lost the photograph of the appellant shown to Mr. McCumin, that particular photograph could not be shown to the appellant’s counsel. However, a copy of that photograph was made from the same negative and shown to the appellant’s counsel. On the record here presented this serves as no basis upon which to predicate error.
If it be assumed the photographic identification procedures were prejudicially tainted, Mr. McCurnin’s in-court identification provides an independent identification of the appellant when he stated:
“Based upon my observations of the defendant at the rice cooker and in the office on the stairs there is no doubt in my mind that the man who robbed me is the defendant present in court today.”
(State v. Nesmith, supra at 149; State v. Winston, 214 Kan. 525, 520 P. 2d 1204; and State v. Hill, 209 Kan. 688, 498 P. 2d 92.)
The appellant last contends the state failed to sustain its burden of proof to show the crime committed was aggravated robbery as opposed to simple robbery. The appellant argues it is not shown he possessed a loaded gun and thus he should not be charged with an aggravated robbery. Of course, with an automatic pistol a witness cannot tell whether a gun is loaded unless a shot is fired. Therefore, many courts have recognized one can be convicted of robbery by means of a dangerous weapon, or deadly weapon, notwithstanding the fact that the gun allegedly used was unloaded. (Annot., 79 A. L. R. 2d 1412, 1426, § 7 [1961]; and see, The State v. Archer, 8 Kan. App. 737, 54 Pac. 927.)
The judgment of the lower court is affirmed.
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The opinion of the court was delivered by
Schroeder, J.:
This is an action for a declaratory judgment brought by the holder of an option to purchase an oil and gas lease to establish the validity of the lease. After hearing the matter the trial court refused to declare the oil and gas lease terminated for failure to produce oil in paying quantities. Appeal has been duly perfected by the defendants below who are the owners of one-half of the mineral rights in the tract of land involved. They also own the surface rights.
The various points asserted involve the provisions in the lease regarding termination set forth in the habendum clause of the lease, where oil was initially found in paying quantities and produced under the “thereafter” clause of the lease, requiring that oil be “found in paying quantities.”
Reese Enterprises, Inc., (plaintiff-appellee) is a corporation which owns four leases in Franklin and Miami Counties for investment purposes. It is the holder of an option to purchase an oil and gas lease on the 440-acre tract of land in Franklin County, Kansas, here in question and upon which Glenn F. Layton, Jr., the lessee by assignment, was interpleaded as an involuntary plaintiff (appellee). Roy Lawson and his wife (defendants-appellants) own the surface and one-half of the mineral rights of the 440-acre tract of land in question.
To facilitate an understanding of the case the appellants will sometimes be referred to generally as the lessor; Reese Enterprises, Inc., will be referred to as the optionee or Reese; and Glenn F. Layton, Jr., as the lessee.
The oil and gas lease involved, referred to as the Gingrich lease in the record, was executed on January 18, 1916. It covered the west half of section 28; the north half of the northeast quarter of section 29; and the southeast quarter of the northeast quarter of section 29, all in township 16, range 21, Franklin County, Kansas.
Production of oil in paying quantities occurred during the primary term and thereafter until approximately 1971. Through the years the working interest had been assigned numerous times. The lessee is the last assignee of record, having acquired the working interest on April 21,1971.
At the time the lessee acquired the lease the method of producing oil from the lease was to pump eight wells by means of elec tricity. Seventeen other wells were connected to the flow lines which led into the lease tank battery. The lessee was not sure how many wells were located on the property, but he estimated there were between 40 and 50 wells in all. Some of the wells, other than the 25 so-called producing wells, are injection wells which were formerly used by prior lessees to inject salt water into the producing formation in connection with secondary recovery operations. These operations were conducted under a permit from the State Corporation Commission which had expired before the lessee herein acquired the working interest.
At the time water flooding was commenced, the then lessee rented a ten-acre surface tract from the then surface owners of the lease in question upon which was installed a central water treating plant and tank batteries for adjoining leases, which were not unitized with the lease in question. The tank battery for the lease involved here is also on the ten-acre surface lease. An office with a telephone is located on the ten acres. Sometime in 1970 the then lessee failed to pay the rental on the ten-acre surface lease and no rentals have been paid since that time.
After Mr. Layton acquired the working interest on April 21, 1971, as lessee he continued pumping the eight wells until November 1971, at which time he discontinued pumping operations entirely and connected those eight wells to the flow lines leading to the lease tank battery. The lease was then disconnected from its source of electricity in order to avoid electric bills which had been running from $35 to $50 per month.
From November 1971, until May 31, 1973, the lessee’s method of “production” consisted of what he called “free flow” into the tank battery. During that period of time the property produced 125 barrels of oil. Thus the actual combined total daily production from 25 wells was roughly one-fifth barrel of oil per day over an eighteen month period. During that time, the lessee checked the lease at least once or twice a week and on occasion three or four times a week. That entailed a drive of five miles each way from Wellsville where he lives. He operated other leases in the vicinity of the Lawson property. Checking the lease also involved looking on occasion into the tank battery to see if oil was running into the tank.
In April 1972, the lessee gave KAI Oil Company a nine month option to purchase the lease. From then until the fall of 1972 a Mr. Gillin of KAI operated the lease for the lessee at lessee’s re sponsibility. During the period KAI operated the lease for the lessee, it pulled from one to three wells at a cost of around $30 per well. KAI also re-rocked the entrance road to the office area at an expense of $38 and placed a new cattle guard in the gate at an unknown expense. Mr. Layton, the lessee, thought these were expenses chargeable against the lease.
Although its option to purchase ran through December, KAI decided in the fall of 1972 not to exercise its option. In November 1972, Elmer Sieg, an Eastern Kansas oil operator, inquired about purchasing the lease, From November 1972, through January 1973, he visited the lease approximately ten times. Subsequently, he checked to see if oil was flowing into the tanks. On one occasion it was, and on another it was not. Mr. Sieg decided that he was not interested in the lease if it could not be water flooded.
From the time Producers Pipeline Company ceased buying the oil from the lease in November of 1971, the lessor received only two checks representing royalty payments; one in December of 1972 in the amount of $12.77 and one in November of 1973 in the amount of $9.59. The checks were returned uncashed to Page Oil Company. Those checks represented one-half of the one-seventh royalty payable under the lease.
On February 3, 1973, the lessor demanded in writing of the lessee that he release the lease of record because it had expired by its own terms in that it had ceased to produce oil in paying quantities. The lessee refused to release the lease. On March 21, 1974, the lessee entered into the option agreement with Reese, after Reese had attempted to negotiate a lease with the lessor.
One of Reese’s witnesses, Don C. Bloomer, testified that he had pumped this lease in 1967 and 1968, that during that period eight or nine wells were pumped and twelve or fourteen flowing wells were connected to the tank battery. Total lease production was then four or five barrels of oil per day. On the basis of four barrels per day, eighteen months of production by the normal means— that is from November 1971 to May 31, 1973 — would equal 2,184 barrels. The same witness testified that the lease in its present condition could not be operated at a profit.
The 125 barrels of oil produced from November 1971 until May 31, 1973, had a gross value of $313.16. Of that amount, the lessee received $268.42 with the overriding royalty owner entitled to $9.79 of that sum.
The lease here in question provides for a one-seventh royalty and contains a term or habendum clause reading as follows:
“To have and to hold the same unto and for the use of the second party, successors and assigns, for the term of one year from date hereof, and as much longer as oil or gas is found in paying quantities thereon. . . .” (Emphasis added.)
Reese in its petition for declaratory judgment alleged among other things:
“3. The plaintiff has been informed by defendants that defendants con-consider the lease of which Glenn Layton Jr. is the present holder thereof, to be void and forfeited.
“4. That the plaintiff verily believes that said lease can be produced to the mutual benefit of plaintiff and defendants by prudently developing said lease.
“5. That defendant [Lawson] has denied and prohibited Glenn Layton Jr. and/or anyone to come on defendants’ property since August, 1973, and defendants have blocked all entrances to the lease premises.
“6. That Glenn Layton Jr. is indebted to the Wellsville Bank in the approximate sum $5600.00 and plaintiff would be required to assume said indebtedness at which time as plaintiff took an assignment of Glenn Layton Jr.’s interest under said lease.” (Emphasis added.)
In the prayer Reese asked the court to judicially determine whether “the present lease on which Glenn Layton Jr. is a lessee and defendant is lessor is in full force and effect.”
The defendant Lawson answered among other things that the lease was void due to termination as described by its own terms, and that any and all oil produced from the premises after the termination of the oil and gas lease was done in wrongful conversion of the defendants’ property.
Upon the defendants’ motion Layton was joined as an involuntary plaintiff to the action. Layton answered that as operator of the lease at all pertinent times, since the assignment of the lease to him, it has produced oil in paying quantities as required by the lease instrument. He denied that he was guilty of any wrongful conversion of the defendants’ property and further alleged:
“That since August 1973 the defendants have denied and prevented this involuntary plaintiff from coming onto the above described real estate, and said defendants have blocked all entrances to the said leased premises, and that as a result of being prevented from entering said premises, this involuntary plaintiff has suffered damages in the amount of $6,309.27, which is the approximate net loss to the working interest from August 1973 to August 1974, based on production from eight wells at the rate of one-half barrel per day per well.”
The defendants denied the allegations of the involuntary plaintiff, and further counterclaimed against the plaintiffs alleging in part;
“4. On the 21st day of March, 1974, plaintiff, Reese Enterprises, Inc., obtained an interest in said lease through a document entitled an Option Agreement executed by Glenn F. Layton, Jr. and Reese Enterprises, Inc., said document being attached to the original pleading filed by the plaintiff herein.
“5. Since April 21, 1971, and until said oil and gas lease terminated by virtue of its own terms as hereinafter alleged, the plaintiff Glenn F. Layton, Jr. was liable to defendants for the breach of any obligations owed by him to defendants under said oil and gas lease or under the statutes and laws of the State of Kansas. That by virtue of the agreement dated March 21, 1974, Reese Enterprises, Inc. likewise became liable to the defendants for the breach of any obligations under said oil and gas lease or under the statutes and laws of the State of Kansas.
“6. On or prior to November, 1971, plaintiff Glenn F. Layton, Jr. ceased producing oil and gas from said lease in commercial quantities or paying quantities, and said lease terminated automatically on said date or prior to said date by virtue of its own terms.
“7. Subsequent to November, 1971, and prior to any resumption of production from said lease by plaintiff Glenn F. Layton, Jr., defendants demanded of plaintiff Glenn F. Layton, Jr. in writing that he release said lease of record. Plaintiff Glenn F. Layton, Jr. failed and refused to release said lease of record and subsequently trespassed on defendants’ property, over defendants’ objections, and produced approximately 75 barrels of oil therefrom sometime during the months of October, November or December, 1973. Such production of oil by the plaintiff Glenn F. Layton, Jr. constituted an unlawful conversion of defendants’ property. The reasonable value of the oil so converted by plaintiff Glenn F. Layton, Jr. was $178.84.
“8. On February 3, 1973, defendants made a written demand on the plaintiff Glenn F. Layton, Jr. to release said lease of record and to rectify the matters alleged herein. Plaintiff Glenn F. Layton, Jr. has refused to comply with said demands in any respect.
“9. As to the release of said lease, this action is brought pursuant to K. S. A. 55-202 under which defendants are entitled to damages in the amount of $100.00 for plaintiff’s failure to release said lease of record, to all costs, together with a reasonable attorneys fee, which defendants allege should be at least $1,000.00, and for such additional damages as the evidence warrants.
“10. K. S. A. 55-132(a) provides that where, as here, a lease assignment as to the plugging and abandonment of wells located thereon and as to the removal of surface obstructions upon termination, the Lessee shall within six months thereafter remove all abutments and other obstacles of every kind used in connection with the operation of such lease, and shall grade the surface in such manner as to leave the land, as nearly as practicable, in the same condition as it was before such structures and abutments were placed thereon. Plaintiffs have failed and refused to comply with said statute, which was enacted for defendants’ benefit, by failing to remove tanks, treatment plant, jacks and related pumping equipment, and pipes and fittings.
“11. K. S. A. 55-128 imposes on plaintiffs the duty of plugging all wells in accordance with the methods, rules and regulations of the State Corporation Commission of the State of Kansas before abandoning the same. Pursuant to said statute, said Commission duly adopted rules 82-2-307 through 82-2-310, which said rules have been duly authenticated and are on file in the office of the revisor of the statutes of the State of Kansas, and have been duly published in the Kansas Administrative Regulations and by virtue thereof have the force and effect of law. The plaintiffs have failed and refused to comply with the obligations imposed upon them by such statutes and rules which were enacted for the benefit of the defendants as well as for the preservation of the natural resources of this state in that to the extent hereinafter alleged the plaintiffs have not notified said Commission that they intend to abandon or have abandoned said wells and that plaintiffs have not plugged said wells as required by said statutes and rules, but instead have left them unplugged.
“12. Plaintiff’s failure to properly plug said wells has injured and is injuring the defendants in that oil has been and is being permitted to seep from said wells permanently damaging defendants’ land.
13. The damages sustained by defendants by virtue of plaintiff’s failure to comply with the obligations alleged in the three preceding paragraphs are as follows:
“A. The reasonable cost of plugging said wells............ $5,000.00;
“B. The reasonable cost of restoring the surface of defendants’ land .................................................... 10,000.00;
“C. The reasonable cost of removing and disposing of the abandoned tanks, treatment plants, jacks, pumping equipment, pipe and fittings ............................................. 5,000.00.
“14. Plaintiffs have failed and refused to remove the personal property located on defendants’ property and that such failure has continued for an unreasonable length of time and that for said reasons said property has become the property of the defendants.”
The pretrial memorandum of the trial court recited:
“Plaintiff Reese Enterprises, Inc., has an option dated March 21, 1974, at a cost of $50 for an assignment of the lease upon payment to the Wellsville Bank of $5,600 indebtedness thereon at the end of six months.”
The pretrial memorandum further redted the issue as to whether the lease had terminated according to the habendum clause would be tried separately. It recited that, “Layton will contend the oil was flowing all the time and was therefore ‘found in paying quantities.’ ”
The trial court on September 23, 1974, heard the issue as to whether the oil and gas lease had terminated. The findings generally are in accord with the facts heretofore redted. Among the findings are the following:
“. . . On the 3rd day of February, 1973, Layton received a letter from Lawson’s attorney requesting his assistance in clearing the title of Layton’s ‘void’ lease and requesting him to plug the wells, clean up the lease and remove his personal property from the land. None of the wells were plugged and no clean up work was done on the lease after the letter requesting said work to be done was received. During March and April, 1973, Layton removed storage tanks from a ten-acre surface lease on the real estate owned by defendants Lawson covered by the lease in question.
“6. On May 31, 1973, Layton and others employed by him were in the process of removing additional storage tanks from the ten-acre surface lease. In preparing to remove tanks not connected to wells on the lease in question, Layton disconnected the flow line from the oil wells on this lease. While in the process of moving the tanks on May 31, 1973, Lawson advised Layton that he was about to lock the gate and they had better get their trucks off the lease. Layton and his employees left as directed by Lawson without reconnecting the lines from this lease and consequently fluids from the wells have continued to flow on the ground and, except to retrieve a water jug, Layton has not been on the lease since May 31, 1973.
“7. Layton testified that from November, 1971, to May, 1973, he operated the lease at a small profit over and above operational expenses. His total income from oil sold from the lease less ]4th royalty for 18 months after suspending pumping operations on the lease in November, 1971, was $268.42 to May 31, 1973, when Lawson locked the gate. Taxes for two years, 1972 and 1973, were $165.00 total. Gillin of K-A-I Oil Company, during his option period, put two loads of rock on an entrance road, repaired a cattle guard and pulled one to three wells at no cost to Layton. Layton had other leases in the vicinity with an office with a telephone on the ten-acre surface lease located on the Lawson property. He would check the lease in question from time to time in connection with the supervision of other leases and the use of the office and tank battery for other leases located on the surface lease.
“8. In March, 1974, the involuntary plaintiff, Layton, entered into an option agreement with Reese Enterprises. Reese stands ready, willing and able to perform cleanup work, plug all unproductive wells not able to be used as injection wells, and continue to develop the lease to the mutual benefit of Reese and Lawson. Reese Enterprises takes the position that the lease, if operated properly, would be profitable. (Emphasis added.)
The trial court then continued with its memorandum and conclusions of law as follows:
“The matter of forfeiture at this time, considering the evidence presented, is being determined as indicated in the conclusions.
“Some consideration was given to the distinction between the terms ‘found in paying quantities’ and the term ‘produced in paying quantities’ interpreted in Wilson v. Holm, 164 Kan. 229, [188 P. 2d 899] and most of the Kansas cases cited. A number of the cases referred to in the note in 43 ALR 3d, pages 157 to 166 indicate interpretation that ‘produced’ is a more affirmative term than ‘found.’
“Also, a number of the cases cited referred to situations where there was a complete cessation of production. The evidence in this case was that the wells previously pumped in a secondary recovery, water-flood, project would continue to flow for five to ten years after pumping ceased and that such a flow was still being experienced on May 31, 1973.
CONCLUSIONS OF LAW
“A. The February, 1973, letter to Layton, on behalf of Lawsons, waives the lessor’s right to assert non-production thereafter, particularly after the incident May 31, 1973, when Layton was ordered off the place and locked the gate.
“B. Defendants Lawson have not sustained the burden of proving that the income from November, 1971, to May, 1973, did not exceed the operating expenses excluding investment for the lease and depreciation of equipment and that the operation as a whole resulted in a loss to the lessee.
“C. The lessee, or his assigns, will, upon request of the lessor, be given a reasonable time to take reasonable steps necessary to bring the lease to better production for the benefit of all. Upon failure so to do, forfeiture can then be ordered.” (Emphasis added.)
The trial court, after hearing the motion for a new trial argued, modified its finding of fact in paragraph 7 by amending it to provide that, “Layton expended the sum of $38.00 for two loads of gravel on said lease and further, that one to three wells were pulled at a cost of $30.00 per well.”
The appellants contend the trial cotut erred in considering this case as one involving forfeiture. It is apparent from the memorandum portion of its opinion and paragraph C of its Conclusions of Law the trial court considered this to be an equitable action in which the defendants were asking the court to declare an existing oil and gas lease forfeited. This was not the issue tendered. The claim was that the lease had expired by its own terms, and that the court should simply declare the legal situation which existed under the facts. (See, Wilson v. Holm, 164 Kan. 229, 188 P. 2d 899.)
It has consistently been held in this jurisdiction that a court of equity has no power to extend a lease beyond the term which the parties themselves have fixed by their written contract. This was the situation presented in Kahm v. Arkansas River Gas Co., 122 Kan. 786, 253 Pac. 563, where the court said:
“A court of equity has no power to extend a lease beyond the term which the parties themselves have fixed by their written contract. We have considered this question in Elliott v. Oil Co., [106 Kan. 248, 187 Pac. 692], and here as there we find it impossible to deny to plaintiffs the relief to which their ownership and right of possession entitle them, especially when the rights which they seek to enforce are in literal accord with the contract of lease which defined and limited the rights of defendant.
“It is urged that plaintiffs could be adequately compensated in damages. Damages for what? For an arbitrary judicial extension of the lease term? There is no sound rule of law or equity to justify any such proposition. There was no such issue raised by the pleadings. When gas production wholly ceased in the Kahm well in May, 1925, because of low pressure and want of a market, defendant did not tender to plaintiffs any consideration as damages or rent for an extension of the lease. It made no such tender in its pleadings. This point lacks merit.
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"It is also contended that the lease could not be forfeited while the lessees were still receiving benefits from it. As an abstract proposition of law, that contention is sound. But this was not an action to forfeit an existing lease. . . . ” (pp. 791-792.)
Other Kansas cases have held that where the terms of an oil and gas lease are clear and unambiguous, and there is no showing of mistake On the part of the parties, the court cannot and should not extend the term of the lease beyond the period clearly provided in the lease. (Hanscome v. Coppinger, 183 Kan. 623, 331 P. 2d 590; Warner v. Oil & Gas Co., 114 Kan. 118, 217 Pac. 288; Caylor v. Oil Co., 110 Kan. 224, 203 Pac. 735; and Harter v. Edwards, 108 Kan. 346, 195 Pac. 607.)
In Caylor the lease according to its terms was to endure “for one year and as much longer as oil or gas is found in paying quantities.” That term expired, the court said, when the production of gas ceased. It further said, “[w]hen the facts did transpire which brought about a forfeiture or termination of the lease, the defendant’s duty to clear the record became mature and absolute.” The difference between the court’s authority in cases involving term clauses on the one hand and implied covenants on the other is further clarified in the Kahm case where the court said:
“Defendant presses upon us the evidence touching its efforts to find another market for the gas in the Kahm well. That evidence might be quite persuasive if this were a case for the exercise of the trial court’s equitable discretion on the point whether some implied covenant of a gas lease had been so grossly violated as to warrant a forfeiture where the time it was to run had not yet expired. Such cases were Howerton v. Gas Co., 81 Kan. 553, 106 Pac. 47; id., 82 Kan. 367, 108 Pac. 813; Alford v. Dennis, 102 Kan. 403, 170 Pac. 1005; Brown v. Oil Co., 114 Kan. 166, 217 Pac. 286.” (p. 791.)
Under Kansas law a conventional oil and gas lease generally does not create any present vested estate in the nature of title to land which it covers, but merely creates a license to enter on the land and explore for such minerals. (Burden v. Gypsy Oil Co., 141 Kan. 147, 40 P. 2d 463; Connell v. Kanwa Oil Inc., 161 Kan. 649, 170 P. 2d 631; and Riverview State Bank v. Ernest, 198 F. 2d 876, 34 A. L. R. 2d 892 [10th Cir. 1952], cert. denied, 344 U. S. 892, 97 L. Ed. 690, 73 S. Ct. 212.) Once the lease expires by its terms, the right to enter and explore expires. (38 Am. Jur. 2d, Gas & Oil, §214.)
Reese points to the testimony of Mr. Layton concerning his attempts to further develop the lease. The question here presented does not relate to the steps reasonably necessary to bring the lease into better production for the benefit of both the lessor and the lessee or to further develop the lease. Rather, the question is whether the lease has expired by its own terms. (Baker v. Huffman, 176 Kan. 554, 271 P. 2d 276.) This case involves a habendum clause, which expressed a condition of precedent fact upon which the lease may continue.
It is generally accepted that the phrase “in paying quantities” in the “thereafter” provision (extension clause) of an oil and gas lease’s habendum clause means production of quantities of oil or gas sufficient to yield a profit to the lessee over operating expenses, even though the drilling costs, or equipping costs, are never recovered, and even though the undertaking as a whole may thus result in a loss to the lessee. In this connection the term “found in paying quantities,” as used in the habendum clause of the lease here in question, is uniformly interpreted as requiring “production in paying quantities.” (Annot., 43 A. L. R. 3d 8 [1972].) In Tedrow v. Shaffer, 23 Ohio App. 343, 5 Ohio L. Abs. 373, 155 N. E. 510 (1926), the court said:
“What did the parties mean by this ‘unless’ clause? It is common language in oil and gas leases. We see reason for holding that the word ‘found’ as here used is synonymous with the word ‘produced,’ since oil in the ground cannot be said to be ‘found’ until it is brought to the surface, and when brought to the surface is then ‘produced’. . . .” (p. 346.)
In Smith v. Hickman, 14 Pa. Super. 46 (1900), the court said:
“. . . The clause of the lease last above recited, however, has been frequently passed upon by our Supreme Court in construing oil and gas leases, and has a well defined meaning. The phrase, ‘and as much longer as oil or gas is found in paying quantities,’ means, and as much longer as, under the operations of the lessee, oil or gas continues to be produced in paying quantities. So long as the wells drilled by the lessee continue to supply oil or gas in paying quantities the lease remains in force. . . .” (p. 51.)
(See also Cassell v. Crothers, 193 Pa. 359, 44 Atl. 446 [1899]; White v. Young, 409 Pa. 562, 186 A. 2d 919 [1963]; Union Gas & Oil Co. v. Adkins, 278 F. 854 [6th Cir. 1922]; and Wilbur v. United States, 54 F. 2d 437 [D. C. Cir. 1931].)
The Supreme Court of Kansas in Tate v. Stanolind Oil & Gas Co., 172 Kan. 351, 240 P. 2d 465, was confronted with a drilling clause in an oil and gas lease using the expression “found in paying quantities” and a habendum clause designed to continue the lease beyond the primary term, where oil or gas was found in paying quantities, for a secondary term “as long thereafter'as oil or gas, or either of them is produced from said land.” The court there found it necessary to construe the ambiguity between the habendum (the term clause) and the drilling clause of the oil and gas lease in question. It held the conflict was not irreconcilable and the lease was given a practical construction which most reasonably effectuated the intention of the parties and permitted both provisions to be operative. A court of equity was there confronted with an action designed to have the oil and gas lease forfeited where production was not immediately undertaken upon discovery of oil in paying quantities. That is not the situation confronting the court in the instant case.
The production of oil or gas “in paying quantities” as used in oil and gas leases was said in Wolf Creek Oil Co. v. Turman Oil Co., 148 Kan. 414, 83 P. 2d 136, to have two entirely distinct and separate uses in the law of oil and gas, with different meanings, which were not to be confused, attributable to the term as it was employed in different portions of the lease. The first instance was said to be in connection with express or implied covenants of the lease to continue drilling operations upon the contingency that tests, or previously drilled wells, had resulted in finding oil or gas in paying quantities. As used in that connection the term “paying quantities” meant that oil or gas had to be found in such quantities that an ordinarily prudent person, experienced in the business of oil or gas production, would, taking into consideration the surrounding conditions, expect a reasonable profit over and above the entire cost of drilling, equipping, and operating the well or wells drilled. On the other hand, where the term “paying quantities” was used in the habendum clause to express a condition of precedent fact upon which the lease might continue, it was said to be uniformly interpreted as requiring production in such quantities as would pay a small profit over the cost of operating the well, although the cost of the drilling and equipping the well might never be paid, and the operation as a whole might result in a loss to the lessee.
As used in the habendum clause, the phrase “paying quantities” refers to operations of the lease after drilling has been accomplished during the primary teim and production has been established. From the standpoint of grammatical construction of the lease and from the standpoint of the purpose of the habendum clause, the cost of drilling and preparing a well for production, and the ultimate profit to be expected from any particular well, are not taken into account in determining whether or not the lease is producing in paying quantities.
Authorities differ as to whether the phrase “paying quantities” is used to describe an objective standard or a subjective standard. Where the subjective standard is used the determination is based upon the reasonableness or the good faith of the lessee’s judgment.
Where the subjective approach is taken the question might well be asked why the matter should be left to the sole judgment of the lessee. At first glance, it would appear that the self-interest of the lessee would provide protection for the lessor. If the lease ceased to be a profitable operation it would appear to be to the interest of the lessee to abandon the project, and it would appear to be unlikely that the lessee would have any interest in continuing to operate at a loss. This conclusion, however, does not take into account the very real factor that the lessee may be interested in preserving his interest for speculative purposes. He may consider it to be to his economic advantage to continue a marginal or losing operation in order to take advantage of possible discoveries in formations other than the formation from which he is producing. He may also anticipate a change in marketing conditions or market prices of oil or gas. There may also be other circumstances which indicate to him that a current operating loss may eventually be turned into a profit in the long run. (2 Kuntz, A Treatise on the Law of Oil and Gas, § 26.7 [e], [¶] and [g] [1964].)
Many of the early cases, which have taken the position that the. requirement of production in paying quantities is actually for the benefit of the lessee, hold that the determination of whether or not-the lease is producing in paying quantities should be left to the judgment of the lessee when that judgment is exercised in good faith. (See cases accumulated in 2 Kuntz, A Treatise on the Law of Oil and Gas, §26.7 [e] [1964].) Under those cases, the test to be applied is theoretically subjective in nature, with the determination turning upon the presence or absence of good faith on the part of the lessee. There the test actually becomes one of determining what a reasonably prudent operator would do for the purpose of making a profit and not for purposes of speculation.
In our opinion the better approach is to follow the innumerable cases which apply an objective test, where the determination of “paying quantities” turns upon a mathematical computation. (See cases accumulated in Annot., 43 A. L. R. 3rd 8 [1972]; 21 J. B. A. K. 320 [1953]; and 2 Kuntz, A Treatise on the Law of Oil and Gas, §26.7 [1964].) This approach recognizes the interest of both the lessor and the lessee, and it gives the lessor some protection when the burdens of the lease far exceed the meager royalty payments, when they fall below the customary delay rental.
An application of the objective standard to a determination of whether an oil and gas lease is producing oil in “paying quantities” under the “thereafter” clause of the lease is not free from difficulties. To avoid termination of the lease we start with the proposition that the lessee must operate the lease to produce those quantities of oil or gas which will produce a profit, however small, over operating expenses, after eliminating the initial cost of drilling and equipping the well or wells on the lease which are required to prepare the lease for production.
In arriving at the amount of income which has been realized, the lessee’s share of production or his share of receipts from the sale of oil or gas is taken into account. More specifically, the income attributable to the working interest as it was originally created is taken into account, and only the lessor’s royalty or other share of production is excluded. Thus, the share of production attributable to an outstanding overriding royalty interest will not be excluded but will be taken into account in determining income. (Clifton v. Koontz, 160 Tex. 82, 325 S. W. 2d 684, 79 A. L. R. 2d 774 [1959]; and Transport Oil Co. v. Exeter Oil Co., 84 Cal. App. 2d 616, 191 P. 2d 129 [1948].)
Expenses which are taken into account in determining “paying quantities” include current costs of operations in producing and marketing the oil or gas. Most of the costs so incurred are easily identified as being direct costs, and present no difficulty. In this connection the lessee is held accountable for the production of the lease as a prudent operator working for the common advantage of both the lessor and the lessee. All direct costs encountered, whether paid or accrued, in operating the lease as a prudent operator are taken into account. These direct costs include labor, trucking, transportation expense, replacement and repair of equipment, taxes, license and permit fees, operator’s time on the lease, maintenance and repair of roads, entrances and gates, and expenses encountered in complying with state laws which require the plugging of abandoned wells and prevention of pollution.
Turning now to the record of the trial in the instant case, from November 1971, when Layton ceased pumping operations on the lease until May 31, 1973, when all operations ceased, the gross value of the 125 barrels of oil produced was $313.16. Deducting the royalty payments from the gross proceeds for this eighteen month period of time leaves a balance of $268.42 as the gross receipts from the sale of oil produced during the period involved. It should be noted this includes an overriding royalty of .03125 per cent in favor of Bert Hemminger which amounted to $9.79.
From the lessee’s gross receipts of $268.42 must be deducted the direct expenses attributable to the operation of the lease. On the evidence presented these may be itemized as follows:
Taxes ..................................................... $165.00
Gravel .................................................... 38.00
Well Pulling ............................................... 90.00
Car Expenses............................................... 60.00
New Cattle Guard................................................
Telephone ......................................................
Junk removed ...................................................
Well Plugging Permits...................................... 300.00
An examination of the lessee’s testimony shows that he came to the trial prepared to testify about everything except operating expenses. In this connection his testimony was evasive. Regarding the out-of-pocket expenses in 1972 he testified, “[t]o my knowledge there would have been none.” Regarding operating expenses in 1973 he said, “[n]one to my knowledge.” Regarding the number of wells pulled he said, “I do not have the record before me.” He admitted, however, on cross-examination there were from one to three wells pulled at an operating cost of around $30 each. This we construe as an admission of three wells pulled at a cost of $30 each.
When the lessee was asked about the amount spent on the lease he said, “I do not have the invoices.” Regarding the cost of the new cattle guard he said, “I don’t have that record.” He also testified, “[a]ctually, I don’t know” how much money KAI Oil Company spent on the lease. As to the taxes paid on the lease he assumed he paid them in 1972 and said, “I don’t have that information before me” and “I am sure that they were paid, yes.” He also testified that he did not take taxes into consideration in his testimony when he said that this lease produced at a profit.
During the winter of 1971-1972 the lessee checked the lease here in question at least once or twice a week and on occasion three or four times a week. The trial court found no cost attributable to this item yet the lessee admitted his time involvement was an expense. In addition to the foregoing the lessee checked the lease during November 1972, through February 1973. The record discloses the lessee lives five miles from the lease. The cost of ten cents per mile to operate a truck or automobile are attributable to the expense in operating this lease and thus makes a round trip cost $1. Carrying the calculation to its logical conclusion the lessee spent at least $60 “checking” the lease during the period involved. When the lessee was asked how he could determine that he had a profit from operating the lease, if he did not know how much money he spent on the lease, he answered, “The expense to pay that indebtedness was furnished by KAI Oil Company during this operation.” On the record here presented the expenses encountered by KAI Oil Company are all direct costs in operating the lease attributable to the period here in question.
The lessee according to his own testimony said the lease had 40 to 50 unplugged wells. Of these wells only 25 were “producing.” Of necessity, the state law required the lessee to plug at least fifteen abandoned wells.
K. S. A. 55-128 provides that it is the duty of the lessee to plug the hole of any well drilled before it is abandoned. Here the lessee did not plug a single well. This court takes judicial notice (K. S. A. 60-409) of the rules and regulations of the State Corporation Commission pertaining to the plugging of wells, and also the fact that the fee for a plugging permit is $20 per well. (K. A. R. 82-2-301 to 82-2-311 inclusive.)
Certainly fifteen unplugged wells have been abandoned for all intents and purposes on the lease here in question. The cost of $20 per well for a plugging permit totals $300. This is an expense attributable to the operation of the lease for the period here involved because the lessee was obligated by statute to incur that expense. The lessee cannot take advantage of a breach of his statutory duty by failing to plug abandoned wells and assert he had no expense.
Furthermore, K. S. A. 55-132a requires the lessee to restore the surface around abandoned wells within six months. No expense need be attributed to this item, but had the lessee done what he was required by statute to do, the expense would obviously have been considerable.
On the basis of the foregoing it is obvious the expenses of the lessee in operating the lease, or attributable to the operation, for the period here in question far exceeds the gross income to the lessee from the sale of oil produced.
For the reasons heretofore stated the lease in question expired by its own terms prior to May 31,1973.
We hasten to add our opinion should not be construed as requiring an eighteen month period of unprofitable operation to terminate an oil and gas lease under the “thereafter” clause of the lease, which provides that the continuation of the lease be dependent upon the production of oil in paying quantities. The time factor in the formula heretofore discussed is a question we leave open.
The appellant contends the lessee’s act of disconnecting pumping wells from their source of electricity was tantamount to the abandonment of production. (Citing Collins v. Oil & Gas Co., 85 Kan. 483, 118 Pac. 54.) The appellee by motion has called our attention to the fact that this point was not assigned as error pursuant to the requirement of K. S. A. 1975 Supp. 60-2701 (Rule No. 6 [d]). This point, having been asserted for the first time in the appellant’s brief, must be stricken. Under the circumstances we shall decline to consider this point and leave the question open.
For the reasons heretofore stated the trial court erred in the theory upon which it determined the case. On the record presented the judgment should be reversed, the lease having expired by its own terms for failure to produce oil in paying quantities as required by the term clause of the lease. (K. S. A. 60-2105.)
The judgment of the lower court is reversed with directions to try the remaining issues in the case.
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The opinion of the court was delivered by
Kaul, J.:
The defendant-appellant appeals from a conviction by a jury of aggravated robbery as defined in K. S. A. 21-3427. Defendant’s contentions on appeal primarily concern issues pertaining to search and seizure.
The evidence discloses that during the evening hours of December 11, 1974, a Shop-Rite store in Leavenworth was robbed. The police were notified and Officer Vemell S. Baker arrived at the store a few minutes after the robbery. Officer Baker was informed by store employees that the robbery was committed by four men and that at least two of them were wearing ski masks with holes over the eyes cut out. The masks were also referred to as stocking caps. One mask was described as being a dark color and the other as red. The robbers were also described as wearing leather coats. Baker was joined by Detective Bogner and they proceeded to circle the immediate area in patrol cars. While Baker was patrolling the area an individual came running toward him, waving his hands, and informed Baker that he had just seen four “guys” run up the steps of a nearby apartment house. On questioning, the individual informed Officer Baker that two of the men were wearing leather coats. One was wearing a green army coat and the other a brown coat. The individual also informed Baker that one of the men wore a red stocking cap and that he also saw two other stocking caps. Baker radioed for further assistance and then proceeded to enter the apartment house. He testified that this was about forty or forty-five minutes after he had first gone to the Shop-Rite store.
After entering the apartment house Officer Baker was joined by Officer Gary Hall who had responded to Baker’s radio call for assistance. The officers heard voices emanating from one of the apartments and Baker knocked on the door. The door was partially opened by a person later identified as Phyllis White. Baker testified that as the door was opened he was able to observe a red ski mask with holes cut into it lying on the apartment floor. He further testified that:
“I stepped to the doorway of the apartment. I didn’t go into the apartment. I was right in the doorway, the archway.”
Upon seeing the red ski mask or stocking cap, Baker entered the apartment with his pistol drawn, followed by Officer Gary Hall. He saw two males and two females and a small child in the front room of the apartment. The two males were later identified as defendant and one Wadell Mathis. They were ordered to lie down on a bed and couch while the officers proceeded to search the immediate area. The two women, who were identified as Sylvia Martin and Phyllis White, apparently had no connection with the robbery or with any of the robbers.
Officer Gene Tomrell arrived shortly after Baker and Hall had entered the apartment. Several officers testified that they were concerned about the whereabouts of the other two robbers. Tomrell went into the adjoining bedroom where he saw some coats and a pistol on the floor. He also found on the kitchen floor a white cloth bag, similar to the bag described by the robbery victims, used in the collection of the money from the cash drawer in the robbery. Tomrell also discovered paper money, rolls of pennies, and food stamps in a partially open drawer. Tomrell returned to the front of the apartment and proceeded to search a dresser in which he found a pistol with a five or six-inch barrel, similiar to the weapon described by the robbery witnesses. Tomrell testified that he considered the pistol as being easily accessible to defendant. All of the articles which were connected with the robbery were seized by the officers.
Defendant and Mathis were arrested, taken to the police station and charged with robbery. Following his preliminary hearing defendant filed a motion in district court to suppress the fruits of the apartment search based on asserted violations of the Fourth and Fifth Amendments to the Constitution of the United States. After an evidentiary hearing the motion was overruled by the trial court. The case proceeded to trial before a jury and the evidence in question was admitted over defendant’s objection.
Defendant’s first argument on appeal relates to the information supplied by the individual to Officer Baker. Defendant contends that the officers had no right to rely upon the information received from an anonymous individual who was unidentified and untested and, therefore, defendant says the evidence was obtained by an illegal search and seizure. In this connection, it should first be pointed out that the individual did not relate facts pertaining to the crime. His information only pertained to the whereabouts of four men matching the descriptions of the robbers. Since the individual supplied only information as to the whereabouts of the wanted persons it was unnecessary to establish his reliability in order to give his information credence. The information gleaned from the individual, coupled with Baker’s knowledge of the facts of the robbery, clearly gave him probable cause to believe the four persons who had entered the apartment building had committed the felonious robbery, (K. S. A. 22-2401.) There is nothing in the record suggesting that it was unreasonable for Officer Baker to believe the individual other than the mere fact he was unknown. An arrest is not unlawful merely because an unknown person told the police where a wanted person could be found. (Malone v. Crouse, [10th Cir. 1967], 380 F. 2d 741. See, also, State v. Clark, 218 Kan. 726, 544 P. 2d 1372.) Under the circumstances shown to exist the subsequent seizure of the fruits of the robbery was not tainted by reason of the information received.
In his second point on appeal, defendant advances several additional arguments against the validity of the search and maintains it was prejudicial error to admit into evidence the articles seized by the officers. Defendant argues the state cannot rely on the plain view doctrine because Officer Baker was in the doorway of the apartment when he saw the red ski mask; that he had intruded into a privileged area without consent before he saw the mask, and, therefore, his observations were tainted and the subsequent seizure of the items was unconstitutional.
As we have previously indicated, Baker entered the apartment house immediately upon receiving the information from the informant, who had observed the street circumstances indicating criminal involvement. Baker stopped at the apartment door where he heard the voices and knocked. When the door was opened by Phyllis White, Baker observed the ski mask on the floor. According to his testimony he had not entered the apartment, but at most was standing in the doorway. This testimony sufficiently supports the trial court’s determination that Baker had not unlawfully intruded into the apartment when he saw the mask. The evidence was sufficient to sustain the state’s burden under K. S. A. 22-3216 (2).
Under the provisions of K. S. A. 22-2401 a law enforcement officer may arrest a person without a warrant if the officer has probable cause to believe the person has committed a felony. Probable cause exists if the facts and circumstances known to the officer warrant a prudent man in believing that a felony has been or is being committed by the person to be arrested. (State v. Walker, 217 Kan. 186, 535 P. 2d 924; State v. Lasley, 209 Kan. 495, 496 P. 2d 1398; and State v. Hart, 200 Kan. 153, 434 P. 2d 999.)
We have no hesitancy in concluding on the record here presented that a prudent man possessed of Officer Baker’s knowledge, at the tíme he saw the ski mask on the floor next to defendant, would have been warranted in believing defendant had committed the robbery.
Relying upon State v. Schur, 217 Kan. 741, 538 P. 2d 689, defendant advances the argument that even though the ski mask was in Baker s plain view, he was still not justified in making a warrantless search and seizure in the absence of “exigent circumstances.” We have recognized the plain view doctrine is subject to certain limitations. Following the rule announced in Coolidge v. New Hampshire, 403 U. S. 443, 29 L. Ed. 2d 564, 91 S. Ct. 2022, we held in Schur:
“Absent ‘exigent circumstances’, plain view alone is never enough to justify the warrantless seizure of evidence.” (Syl. 3.)
However, the situation encountered by Baker, coupled with the facts known by him at the time he observed the ski mask, were ample to constitute exigent circumstances. Baker had good reasons to believe the apartment complex harbored four armed felons. Should Baker have left his partner to surround the entire apartment, while he sought a magistrate? The exigent circumstances encountered by Baker fully justified the warrantless arrest in the inherently dangerous felony case in which he was involved. The circumstances here are clearly distinguishable from those related in Schur, wherein observation through a window of what was thought to be a burning marijuana cigarette, in the absence of any other circumstances, was held insufficient to justify a warrantless search. Where exigent circumstances exist the business of policemen is to act, not to speculate or meditate on whether information received by them is correct. (State v. Boyle, 207 Kan. 833, 486 P. 2d 849; and Miller v. United States, 357 U. S. 301, 2 L. Ed. 2d 1332, 78 S. Ct. 1190.)
As his next point defendant says that even assuming the arrest was lawful, the area searched exceeded the area in which an incidental search could be made. Since the officers knew that four men were involved in the robbery and had only apprehended two, they had good reason to believe the other two might have hidden themselves in other rooms. We believe the officers acted reasonably in looking into the other rooms to make sure the other robbers were not hiding there and might harm the officers or attempt to rescue the arrested defendants. In this situation it would be unreasonable to require the officers to secure a warrant for the further search.
Generally, the extent of a warrantless search, which may be justi fied solely as an incident to an arrest, is limited to the area within the arrestee’s immediate control. (State v. Tygart, 215 Kan. 409, 524 P. 2d 753; and Preston v. United States, 376 U. S. 364, 11 L. Ed. 2d 777, 84 S. Ct. 881.) However, where probable cause is shown to exist and some of the persons sought are not found in the first room lawfully entered officers may for self-protection and to avoid concealment or destruction of evidence, go through other rooms and seize fruits of the crime in plain view. (State v. Phippen, 208 Kan. 962, 494 P. 2d 1137; and United States v. Patterson, [10th Cir. 1971], 447 F. 2d 424.) While under the facts appearing here, a reasonable search may extend beyond the area within defendant’s immediate control, we do not rest our decision solely on this ground. As the state points out, defendant did not have standing to challenge the search in the instant case. The evidence was that defendant entered the apartment upon finding the door unlocked. He has claimed no interest in the premises either proprietary or possessory. Either Mrs. White or Mrs. Martin, or both (the record is not clear) was the legal tenant of the apartment. In this connection we held in State v. Masqua, 210 Kan. 419, 502 P. 2d 728:
“A defendant who has no interest in premises, either of a proprietary or possessory character, has no standing to invoke the constitutional guaranty of immunity from unreasonable search and seizure.” (Syl. 1.)
See, also, State v. Sumner, 210 Kan. 802, 504 P. 2d 239; State v. Grimmett & Smith, 208 Kan. 324, 491 P. 2d 549; and Wheeler v. State, 202 Kan. 134, 446 P. 2d 777.
Finally, defendant contends the trial court should have submitted his requested instructions on the lesser included offenses of robbery and theft. While K. S. A. 21-3107 (3) requires that instructions on lesser included offenses be given this duty arises only where there is evidence under which the defendant might have been reasonably convicted of the lesser offense. (State v. Cameron & Bentley, 216 Kan. 644, 533 P. 2d 1255; State v. Hollaway, 214 Kan. 636, 522 P. 2d 364; and State v. Reed, 214 Kan. 562, 520 P. 2d 1314.) The undisputed evidence in this case is that the robbers were armed and took in excess of $50.00 at gunpoint. The jury would not have been warranted in finding defendant guilty of any offense other than aggravated robbery.
The judgment is affirmed.
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The opinion of the court was delivered by
Owsley, J.:
This is an appeal by the claimant, Edwin H. Reichuber, from a workmen’s compensation award. The only question presented is whether there is substantial competent evidence to support the district court’s award.
On May 7, 1969, claimant sustained an accidental injury to his left knee while working on a drilling rig in the course of his employment with the respondent-appellee, D. H. Cook Well Servicing. After initial treatment by his family physician, claimant was referred to Dr. Reiff Brown, an orthopedic surgeon, who operated on his knee twice during the month of August, 1969. Dr. Brown continued to treat claimant for his knee injury for an extended period of time. Approximately one year after his operations, claimant began experiencing lower back pain which he felt was caused by his knee injury. Claimant subsequently developed a lung disease and a heart condition.
Prior to his hearing, claimant had received 170 weeks of workmen’s compensation benefits for temporary total disability and thirty weeks of temporary partial disability amounting to a total of $8.599.50. In addition, medical expenses had been paid by the respondent and its insurance carrier in the amount of $2,944.67.
At the hearing before the examiner, claimant testified that he was fifty-six years old, married, and lived on a farm with his wife and four sons. He stated he had only a seventh grade education and had never received any special training. Since the early 1950’s claimant had been working for the respondent doing “floor hand work.” He claimed the only type of work he had done was heavy manual labor consisting of lifting heavy objects. According claimant’s testimony, on the day of the accident he was pulling a pipe on a drilling rig when it erupted. While attempting to get out of the way, claimant slipped and injured his knee. He stated that he had constant pain as the result of his knee injury and that it was difficult for him to walk. Because of his bad back and knee he was forced to give up his farming operation. Claimant did not feel he was capable of going back to the same kind of work he did before the injury.
Dr. Brown testified there was internal derangement of claimant’s knee due to the accident, which required an arthrotomy to remove the lateral posterior meniscus. He said claimant often complained of low back pain. When asked whether the knee injury caused his back to become symptomatic, he stated:
“Yes, I think it is reasonably certain that the abnormal gait necessitated by his contramalacia put a stress and strain on the degenerative change that was already present in the back causing that area to become symptomatic and probably even to increase the extent of the degeneration.”
R was Dr. Brown’s opinion that as a result of his knee injury and back problems claimant had a twenty-five percent permanent functional impairment to the body as a whole.
Dr. Roy B. Coffey, an orthopedic surgeon, examined claimant on January 27, 1974. He testified that claimant’s back condition had been aggravated by the accident and that in his opinion claimant had a thirty-five to forty percent impairment of function to the body as a whole as a result of his knee and back problems. This impairment of function, in his opinion, was causally related to the accident. When questioned as to the prognosis for claimant, Dr. Coffey stated:
“A. Well, his knee is not in the best of shape. I doubt if he could go back to any drilling unit in the oil field. You cannot walk on a bent knee and stay active without doing and causing more serious trouble for this knee; and his back is probably, tire point at age 56 where he is not going to be able to stress it that much more.
“Q. What would be your recommendation to him concerning heavy lifting?
“A. My recommendation would be that he shouldn’t do it.
“Q. What about repeated bending or stooping?
“A. He can’t do that either without causing more trouble.
“Q. Can walking on this knee aggravate his back condition?
“A. With a knee constantly bent, you bet. . . .”
Later, Dr. Coffey was asked if claimant should avoid manual labor:
“Q. Your recommendation to him is to avoid manual labor?
“A. You bet.”
On September 25, 1974, the examiner entered an award in favor of claimant, finding that he had sustained a seventy-five percent permanent partial disability to the body as a whole. The award was reviewed by the workmen’s compensation director who affirmed the award with only minor computational modifications. On appeal to the district court, the award was reduced to a thirty-five percent permanent partial disability to the body as a whole. Claimant argues there was no substantial competent evidence to support the district court’s reduction of the award.
K. S. A. 1975 Supp. 44-556 (b) states that the district court is given the plenary power to “grant or refuse compensation, or to increase or diminish any award of the director as justice may require.” In such cases the district court conducts a trial de novo with the jurisdiction and duty to make an independent adjudication as to the facts as well as the law. (Gawith v. Gage's Plumbing & Heating Co., Inc., 206 Kan. 169, 476 P. 2d 966.)
Appeals from the district court in workmen’s compensation cases are limited to questions of law. (K. S. A. 1975 Supp. 44-556 [c].) Whether a district court’s judgment is supported by substantial competent evidence is a question of law, rather than a question of fact. (Jones v. City of Dodge City, 194 Kan. 777, 402 P. 2d 108.) If, when viewed in the light most favorable to the prevailing party below, there is substantial evidence to support the district court’s factual findings, this court is bound by those findings and we have no power to weigh the evidence or reverse the final order of the court. (Day and Zimmerman, Inc. v. George, 218 Kan. 189, 542 P. 2d 313; Buck v. Beech Aircraft Corporation, 215 Kan. 157, 523 P. 2d 697; Rund v. Cessna Aircraft Co., 213 Kan. 812, 518 P. 2d 518; Jones v. City of Dodge City, supra.) As stated in Silvers v. Wakefield, 176 Kan. 259, 270 P. 2d 259:
“Under G. S. 1949, 44-556, appellate jurisdiction of this court in compensation cases is confined to reviewing questions of law only. In doing so, it is necessary to determine whether the record contains any evidence which tends to support the judgment rendered, and in so considering, this court is required to view all testimony in the light most favorable to the prevailing party below. If when so considered, the record contains any evidence which supports the trial court’s judgment, that judgment must be affirmed; being conscious at all times of the fact that this court has little concern with disputed questions of fact in ordinary lawsuits and none whatever in workmen’s compensation cases, except to ascertain whether the record contains any evidence which on any theory of credence would justify the trial court’s finding or conclusion of fact.” (pp. 259, 260.)
In the instant case the dispute concerns the proper percentage of claimant’s disability. It is well settled that the extent of a claimant’s disability is a question of fact, and if the record discloses substantial competent evidence on which the district court could base its findings, we are bound by those findings. (Scott v. Day and Zimmerman, Inc., 215 Kan. 782, 529 P. 2d 679; Meyersick v. Rodney Milling Co., 213 Kan. 678, 518 P. 2d 398.) The test for determining the disability of an injured workman is the extent to which his ability has been impaired to procure in the open labor market, and to perform and retain work of the same type and character he was capable of performing before his injury. (Scott v. Day and Zimmerman, Inc., supra; Puckett v. Minter Drilling Co., 196 Kan. 196, 410 P. 2d 414; Gutierrez v. Harper Construction Co., 194 Kan. 287, 398 P. 2d 278; Daugherty v. National Gypsum Co., 182 Kan. 197, 318 P. 2d 1012; Dobson v. Apex Coal Co., 150 Kan. 80, 91 P. 2d 5.)
We note that claimant was not awarded total disability by the examiner, the director, or the district court, despite the testimony of Dr. Coffey to the effect claimant should avoid the same type of heavy manual labor he had been engaged in prior to the accident. Ordinarily, such testimony would be sufficient to justify an award of total disability. (See, Scott v. Day and Zimmerman, Inc., supra.) It is not the function of this court to weigh the evidence or judge the credibility of witnesses. If the record contains any evidence which supports the district court’s judgment, that judgment must be affirmed. In Day and Zimmerman, Inc. v. George, supra, we stated:
“While testimony such as that disclosed in this record can reasonably be the subject of opposite interpretations and even support opposing conclusions, the test is whether the record contains any substantial competent evidence which on any theory of credence justifies the trial court’s findings. It is not the function of this court to judge the credibility of witnesses or to determine what weight should be given their testimony.” (p. 196.)
The award of the trial court granting the claimant thirty-five percent general bodily disability must be supported by the evidence. The testimony of claimant and Dr. Coffey supports a one hundred percent general bodily disability for performing like and similar work. If there is any evidence in the record to support the district court’s award it must be based on the testimony of Dr. Brown. He testified as to the history of claimant’s injuries and the two operations performed on his knee. In June of 1972 he examined claimant. He testified as to the results of the examination:
“. . . [T]he examination of his knee revealed tenderness over the medial aspect of the joint, and investigation of the medial ligament revealed no laxity, however, there was pain in that area. There was still considerable grinding and crepitus beneath the patella indicating a rather severe contramalacia of the patella and this had been indicated at surgery. The back examination revealed tenderness in the lumbar area and surrounding paraspinal muscles with markedly limited range of motion and complaints of pain and of moderate paraspinal muscle spasm seen throughout the range of motion testing. The neurological testing was normal. X-rays were repeated at that time and they revealed a rather severe involvement of the facets at L-4 and L-5 and L-4 S-l with spurring at the disc spaces. On comparison with x-rays taken one year previously, there had been a slight increase in the narrowing of the lumbosacral discs.”
Dr. Brown then stated:
". . . [T]he abnormal gait necessitated by his contramalacia put a stress and strain on the degenerative change that was already present in the back causing that area to become symptomatic and probably even to increase the extent of the degeneration.”
On crosjs-examination, Dr. Brown responded to a question regarding claimant’s back condition:
“. . . [WJith the changes that he had in his knee I doubt that he would have remained asymptomatic for very long. I think as soon as he put more stress and strain on it being up on it more he probably would have had some degree of symptoms. If we were to assume though that his knee did remain completely asymptomatic and he had no limp we could expect a corresponding decrease in symptoms and the degenerative problems in the low back and these would probably remain asymptomatic as long as he didn’t put unusual stress or strain on the back either by recurrence of an abnormal gait or in the process of increased lifting and bending.”
Dr. Brown concluded claimant had a permanent functional impairment of twenty-five percent to the body as a whole and would require future medical attention. He was not asked, nor did he testify, as to any percentage of work disability. He testified that claimant had a heart condition and emphysema, which would prevent him from returning to employment involving heavy manual labor. He was not asked directly if the knee and back problem would prevent claimant from returning to manual labor, but his foregoing prognosis clearly states claimant’s abnormal gait or any form of lifting or bending would increase his symptoms and his degenerative problems.
We are fully cognizant of our obligation to consider the evidence in the light most favorable to the prevailing party. We have diligently searched the record for a scintilla of evidence which would support the district court’s award. Our search has been fruitless. Any award in this action for less than total disability has no support in the record. The district court is reversed with directions to enter an award in favor of the claimant for total permanent disability.
Reversed and remanded with directions.
Schroeder and Fromme, JJ., dissenting.
Prager, J., not participating.
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The opinion of the court was delivered by
Schroeder, J.:
This is an appeal in a workman’s compensation case wherein the dependents of a deceased workman, who died following a heart attack while at work for the respondent, were denied compensation by the district court in applying the “heart amendment” of the Kansas Workmen’s Compensation Act. (K. S. A. 1975 Supp. 44-501.)
The underlying question on appeal is whether the findings of the trial court are supported by substantial competent evidence.
In October 1947, Marvin Woods married the claimant, Naomi Woods. Seven children were born to this marriage, four of whom were residing in the home in early 1974.
In March of 1970, Marvin Woods began working for respondent, Peerless Plastics, Inc., manufacturer of internal pressure pipe. In February of 1972, he suffered a heart attack and was hospitalized for approximately seventeen days. He returned to work about three months later. Since that heart attack he had been under regular medication. In addition he normally rode a stationary bicycle eight miles a day before leaving for work.
On January 27, 1974, Mr. Woods completed his cycling exercise 30 to 45 minutes before leaving for work. After arriving at work, Mr. Woods went outside into the cold air and helped to load or unload 20 to 25 plastic pipes weighing about 75 pounds each. Two or three minutes later he suffered a heart attack and died.
A claim was timely filed by the decedent’s widow and stipulations of fact were agreed upon by the parties. On July 23, 1975, the workmen’s compensation examiner found the decedent’s exertion was more than the usual work in the course of his regular employment and did precipitate his disability. Respondent applied to the Workmen’s Compensation Director for review. On October 10,. 1975, the Director ruled the examiner erred in finding the events which caused the death constituted exertion which was more than usual work in the course of the workman’s regular employment and that such exertion did precipitate the myocardial infarction. Therefore, the Director set aside the examiner’s award.
Appeal was duly perfected to the district court of Finney County by the claimant. The district court sustained the Director and denied compensation. It found:
(1) That the work the decedent was doing immediately prior to his death was not unusual and was work which he had often performed before as part of his regular duties.
(2) That the claimant has failed to sustain the burden of proof showing there was any unusual exertion which was a precipitating cause of the decedent’s heart failure.
In 1967 the legislature amended K. S. A. 44-501 by adding the “heart amendment” which reads:
“. . . Compensation shall not be paid in case of coronary or coronary artery disease or cerebrovascular injury unless it is shown that the exertion of the work necessary to precipitate the disability was more than the workman’s usual work in the course of the workman’s regular employment.”
Ambiguities created by the “heart amendment” are discussed in 16 Kan. L. Rev. 411 (1968) by William A. Kelly in an article entitled “The Unusual-Exertion Requirement and Employment-Connected Heart Attacks.”
A number of cases have arisen under this amendment. Our most recent decision, Suhm v. Volks Homes, Inc., 219 Kan. 800, 549 P. 2d 944, comprehensively examines the recent “heart amendment” cases.
Whether the exertion of the work necessary to precipitate a disability was more than the workman’s usual work in the course of his employment is a question of fact to be determined by the trial court. Furthermore, where an external force rather than exertion is the agency which produces the workman’s disability, the usual versus the unusual exertion test contemplated by the amendment is irrelevant. If the trial court finds against the claimant on either of the foregoing factual matters, recovery of an award is foreclosed. Findings of the trial court on either of the foregoing determinations will be upheld on appeal where supported by substantial competent evidence. (Suhm v. Volks Homes, Inc., supra; Nichols v. State Highway Commission, 211 Kan. 919, 508 P. 2d 856; Dolan v. Steele, 207 Kan. 640, 643, 485 P. 2d 1318; and Muntzert v. A. B. C. Drug Co., 206 Kan. 331, 478 P. 2d 198.)
We construe the trial court’s decision in the instant case as embracing a finding that the claimant failed to sustain her burden of proof on each of the foregoing questions of fact.
We examine first the question of Mr. Woods’ usual work which he performed as part of his regular employment. Reviewing the record shows that Mr. Woods, a foreman on the 4 o’clock to midnight shift was responsible for the production of pipe. Mr. Woods would be required to assist machine operators in making die adjustments, measuring pipe, moving pipe and keeping the plant clean. On cross-examination, both Robert Kissick, general manager of Peerless Plastics, and Richard Legleiter, a Peerless employee, testified it was a part of Mr. Woods’ regular duties to help load and unload plastic pipe from trailers. Wendell Mohler, who helped unload the pipe with Mr. Woods, also testified that the unloading would not have been uncommon or unusual; that Mr. Woods had done it all of the time.
An analogous case is Calvert v. Darby Corporation, 207 Kan. 198, 483 P. 2d 491, where the deceased worker was also employed in a supervisory capacity. His duties did not include engaging in physical labor, but fellow workers testified it was not unusual for him to unload beams involved in that company’s work. There the district court found sufficient evidence was presented to show that no unusual exertion was present. That finding was affirmed on appeal to this comí:.
Substantial competent evidence is presented by the record here to show that the decedent performed no unusual work in the course of his regular employment, and the trial court’s finding to that effect must be upheld.
The second fact question concerns causation. As is often the case in workmen’s compensation cases, the medical testimony was conflicting. No autopsy was performed.
Dr. Ramon Mendoza, Mr. Woods’ personal physician, testified he last saw Mr. Woods on November 23, 1973. He discussed Mr. Woods’ prior medical history and indicated Mr. Woods was overweight, had high blood pressure and high cholesterol and triglyceride. However, Dr. Mendoza was unable to say with reasonable medical probability whether exertion could be a contributing factor to a myocardial infarction.
Dr. David Beggs, who attended Mr. Woods on January 27, 1974, testified he believed Mr. Woods died of a myocardial infarction based upon the circumstances surrounding the death and also upon the history taken from Mr. Woods’ wife. Dr. Beggs listed acute myocardial infarction as the cause of death on the death certificate. On cross-examination, Dr. Beggs conceded the probable cause of death was a cardiac vascular occurrence of some type.
Dr. Richard Sifford testified on behalf of the respondent. He indicated there were a multiplicity of possible causes for Mr. Woods’ death. He referred to Arthur Masters’ study published in the Journal of the American Medical Association which failed to show statistically that any level of physical activity had anything to do with a heart attack. He said such attacks frequently happen in one’s sleep.
Based on Dr. Sifford’s testimony, substantial competent evidence supports the finding of the district court on causal connection.
The appellant contends the examiner made a contrary finding of fact which should be binding on the district court. This contention has been considered many times. In Gawith v. Gage's Plumbing & Heating Co., Inc., 206 Kan. 169, 476 P. 2d 966, it was held the district court, on an appeal from a decision of the Workmen’s Compensation Director, has authority under K. S. A. 1967 Supp. 44-556 (now K. S. A. 1975 Supp. 44-556) to hear an appeal de novo upon the record made before the Director and his examiners, and substitute its judgment for that of the Director and his examiners. (See also Muntzert v. A. B. C. Drug Co., supra; and Arnold, Procedures for Reviewing Workmen’s Compensation Awards, 13 Wash-bum L. J. 197 [1974].) Cases on appellate review where this corut has affirmed a district court where it reversed the conclusions reached by a workmen’s compensation examiner or Director include Nichols v. State Highway Commission, supra; Dolan v. Steele, supra; and Muntzert v. A. B. C. Drug Co., supra.
The appellant also makes reference to the fact that January 27, 1974, was a cold night. Our review of the record indicates only one passing reference to this fact. There is no evidence that the cold was a precipitating cause of the heart attack. Indeed, nowhere in the medical testimony is the question of causal connection between cold weather and heart failure explored.
The appellant cites Dial v. C. V. Dome Co., 213 Kan. 262, 515 P. 2d 1046. There the claimant worked as a finish carpenter in a building that was poorly ventilated. Because of the poor ventilation, the heat in the building was excessive. The claimant collapsed and his condition was described as atherosclerosis. The heat precipitated a rupture of a blood vessel on the surface of the brain producing cerebral hemorrhage. Except for the heat, the claimant was in his normal working environment performing usual duties. In Dial the employer urged that since the claimant’s injury was cerebrovascular in nature, recovery should be denied absent a showing of unusual exertion. We rejected this contention, holding that the “heart amendment” affects only “run-of-the-mill” cases where exertion causes the injury. In Dial the heat was an external force, wholly independent of the workman’s exertion, which precipitated the vascular activity. We distinguish Dial from the case at bar because here the reoord does not disclose a causal connection between cold weather and heart failure.
The judgment of the lower court is affirmed.
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Prager, J.
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Per Curiam:
This is an appeal from the summary denial of a motion to vacate sentence pursuant to K. S. A. 60-1507.
On January 23, 1970, petitioner and a companion were apprehended by law enforcement officers near Orleans, Nebraska, following a high-speed chase from the scene of a burglary in Prairie View, Kansas. Petitioner was charged in county court with second degree burglary under K. S. A. 21-520, repealed Laws of 1969, effective July 1, 1970, now K. S. A. 21-3715. On January 24, 1970, petitioner appeared in county court where the charges were read to him and his constitutional rights explained. At petitioner’s request counsel was appointed to represent him.
After waiving preliminary examination petitioner was bound over for trial to the district court. On arraignment petitioner entered a plea of guilty.
On September 24, 1974, petition filed a 60-1507 motion seeking to vacate his sentence. On October 9 the district court denied the motion finding it presented no substantial question of law or triable issues of fact and that the motion and records conclusively showed that petitioner was not entitled to relief. This appeal followed.
On appeal petitioner contends that (1) he had ineffective assistance of counsel; (2) he was not advised of his right to appeal; (3) the trial court failed to determine if there was a factual basis for the plea and if it was entered with an understanding of the charge and nature of consequences; and (4) his plea was involuntary because it was induced by promises of a lesser sentence than he received.
On arraignment the information was read in open court and petitioner was informed that the charge was second degree burglary. Petitioner stated he did not desire to confer further with counsel and when asked for his plea, he responded “Guilty, sir.” Petitioner further stated that his plea was made with advice of counsel; that his counsel advised him of the penalty; that he desired to plead guilty; that no statement had been made to induce him to plead guilty; that he had not been abused physically or mentally; and that he pled guilty because he was guilty and for no other reason. The plea was entered on January 27, 1970, before K. S. A. 22-3210 became effective on July 1, 1970. This statute is not retroactive. (Peterson v. State, 215 Kan. 253, 524 P. 2d 740.) The record of arraignment proceedings affirmatively shows an intelligent and voluntary plea. (Peterson v. State, supra.; Reid v. State, 213 Kan. 298, 515 P. 2d 1040.)
The right to appeal from a criminal conviction is not guaranteed by the Constitution of the United States or the Constitution of the State of Kansas, and failure to advise a defendant of his right to appeal does not rise to constitutional stature. (Collins v. State, 210 Kan. 577, 502 P. 2d 851; Ware v. State, 198 Kan. 523, 426 P. 2d 78.)
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. (Winter v. State, 210 Kan. 597, 502 P. 2d 733; Widener v. State, 210 Kan. 234, 499 P. 2d 1123.) The record shows that counsel’s services were within the legal standards for effectiveness of counsel established by this court.
The judgment is affirmed.
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The opinion of the court was delivered by
Owsley, J.:
On March 25, 1973, a vehicle driven by plaintiff Clara J. Kirtland collided with a vehicle driven by George F. Bowers. Prior to this accident, Bowers had filed with the Kansas Corporation Commission a policy of liability insurance issued by defendant Tri-State Insurance Company, and had received a certificate of convenience and necessity to operate as a motor carrier in this state, all in conformity with K. S. A. 66-1,128 (now K. S. A. 1975 Supp. 66-1,128).
On February 13, 1975, plaintiff filed her original petition naming only Bowers as defendant. Subsequently, the sheriff returned the summons non est, indicating that after a diligent search and inquiry he was unable to find the named defendant. Thereafter, on April 11, 1975, more than two years after the accident, plaintiff filed an amended petition suing Tri-State, insurer of Bowers.
Defendant Tri-State filed a motion to dismiss, claiming the action against it was barred by the two-year statute of limitations of K. S. A. 1975 Supp. 60-513 (4). The trial court sustained the motion and entered an order dismissing Tri-State as a party defendant. From this order plaintiff appeals.
Plaintiff contends the right to sue Tri-State directly is one created by statute, thus the three-year limitation period of K. S. A. 60-512 (2) should apply. Defendant counters that the cause of action is one in tort, thus plaintiff has only two years to file suit under K. S. A. 1975 Supp. 60-513 (4).
Because the two-year statute of limitations did not toll against Tri-State before it was named as defendant, plaintiff’s cause of action must come under the three-year statute or it will be barred. (Schmidt v. Nauman, 202 Kan. 131, 446 P. 2d 828.)
K. S. A. 60-512 reads:
“The following actions shall be brought within three (3) years: . . . (2) An action upon a liability created by a statute other than a penalty or forfeiture.”
K. S. A. 1975 Supp. 60-513 reads:
“The following actions shall be brought within two (2) years: . . . (4) An action for injury to the rights of another, not arising on contract, and not herein enumerated.”
Plaintiff’s argument that the three-year statute of limitations applies is based on her interpretation of K. S. A. 66-1,128. This statute requires all motor carriers to obtain minimum liability insurance before they can lawfully operate in this state. In addition, as interpreted by this court, the statute gives the plaintiff injured by a motor carrier the option of suing the motor carrier’s insurer directly though the carrier is not made a party to the action. (Sterling v. Hartenstein, 185 Kan. 50, 341 P. 2d 90; Burks v. Aldridge, 154 Kan. 731, 121 P. 2d 276; Dunn v. Jones, 143 Kan. 218, 53 P. 2d 918.) Plaintiff argues the right to sue is a liability of the insurer created by statute, which would not exist but for the creation of the statute (Baldwin v. Fenimore, 149 Kan. 825, 89 P. 2d 883; Hollinger v. Dickinson County, 115 Kan. 92, 222 Pac. 136; Pretzel v. Fiss, 84 Kan. 720, 115 Pac. 536), and therefore subject to the statute of limitations for statutorily created rights (K. S. A. 60-512 [2]).
As a general rule the nature of the cause of action determines the applicable statute of limitations. In addition, statutes of limitations are to be applied to all proceedings emanating from a cause of action in the same manner as they apply to the basic cause of action. The purpose of this rule is to make the right to be enforced, not the procedure, the test as to which statute of limitations applies. (51 Am. Jur. 2d, Limitations of Actions, §62, pp. 640-641.) This court recognized the rule in the case of Hollinger v. Dickinson County, supra. There the plaintiff sued Dickinson County for damages resulting from a defective bridge. The trial court dismissed the action as being barred by the two-year statute of limi tations, relying on the case of A. T. & S. F. Rld. Co. v. King, 31 Kan. 708, 3 Pac. 565. This court reversed, modifying the King decision in the following language:
“. . . Perhaps the decision might better have been justified upon the theory that the statute merely effected a procedural change, eliminating a defense to which the plaintiff’s claim for injuries due to the defendant’s negligence would otherwise have been open. It has been held that the invoking of a statutory provisional remedy by the plaintiff does not make the action one upon a liability created by statute (Pare v. Mahone, 32 Ga. 253) . . .
“The present action is one upon a liability created by statute. Without the statute there would be no basis whatever for the plaintiff’s claim. (Wagner v. Edwards County, 103 Kan. 719, 176 Pac. 140, 665.) The statute giving the right of action is not one relating to remedy or procedure; it concerns the substantive rights of the parties and imposes an obligation where none before existed. . . .” (pp. 94, 95.)
In the instant case we hold the two-year statute of limitations applies for three reasons.
First, the nature of the present action is one of tort, as this court has previously held in Fitzgerald v. Thompson, 167 Kan. 87, 204 P. 2d 756. There the court characterized the cause of action against an insurance company as being a tort liability. The court said:
“The rule deducible from the above authorities is that the liability assumed by the insurer is neither a contract liability nor a statutory liability. It is a tort liability — the liability in tort which the insured has ‘from the negligent operation’ of his business under the permit. The fact that this tort liability is determined by the statute and by the insurance policy does not keep it from being a tort liability.” (pp. 90, 91.)
(See, also, Sterling v. Hartenstein, supra; Streebin v. Capitol Truck Lines, 182 Kan. 527, 322 P. 2d 776; Lamb v. Hartford Accident & Indemnity Co., 180 Kan. 157, 300 P. 2d 387; Twichell v. Hetzel, 145 Kan. 139, 64 P. 2d 557.)
Second, the statute under discussion is not substantive, but is remedial in nature. It does not give the injured party any new rights or a new cause of action. The injured party in a motor carrier accident has always had the right to file a damage action for his injuries and losses. The power to sue the insurance company directly is only a statutory remedy designed to assist the injured party in effectuating a successful recovery when liability is established. In Dunn v. Jones, supra, the court stated:
“. . . The purpose of the insurance is adequate protection to members of the public from negligent conduct of the motor-vehicle operator, not simply protection to the negligent operator against judgments rendered against him, and what the policy must assure is recoverable compensation to a member of the public for injury to person and loss of or injury to property.” (p. 223.)
Our characterization of the direct action against the insurance company as being procedural and not substantive has support from other jurisdictions. (Noe v. United States Fidelity and Guaranty Company, 406 S. W. 2d 666, 669 [Mo. 1966], and cases cited therein; 46 C. J. S., Insurance, § 1243 [c], pp. 236, 237.)
If plaintiffs position is adopted by this court, she would have two years in which to sue the original tortfeasor and three years to sue his insurer. The insurer would be exposed to a greater period of liability than the original tortfeasor. It is the obligation of this court to interpret statutes to express the intent of the legislature (Manzanares v. Bell, 214 Kan. 589, 522 P. 2d 1291), and we cannot believe the legislature intended to create such an anomaly. (See, Firemen's Ins. Co. v. Diskin, 255 Cal. App. 2d 502, 509, 63 Cal. Rptr. 177.) Since the insurer by statute stands in the shoes of the insured, he can have no greater or lesser rights or obligations than the insured. (In accord, American Ins. Group v. McCowin, 7 Ohio App. 2d 62, 218 N. E. 2d 746, State Insurance Fund v. Taron, 333 P. 2d 508 [Okl. 1958].)
The judgment of the lower court is affirmed.
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The opinion of the court was delivered by
Fromme, J.:
Action was brought in the trial court to obtain partial cancellation of an oil and gas lease covering 160 acres of land in Graham County, Kansas. The plaintiff, lessor, alleged that the present owners of the lease had failed to fulfill the implied covenants in the lease which require further development under the prudent operator test.
The action was fully tried by experienced counsel before a seasoned trial judge. As might be expected the testimony of the competing experts in the case was in sharp conflict as to need for further development. At the conclusion of the trial the judge made written findings of fact and conclusions of law which cover ten pages of the record. The court entered an alternative decree in favor of the lessor requiring further development or partial cancellation. We will discuss this decree in more detail later.
The present owners of the lease, King Oil Company and T. Warren Hall, have appealed to this court. They argue four points on appeal (1) no substantial supporting evidence, (2) findings inadequate to support the decree, (3) error in failing to recognize the controlling effect of spacing and proration regulations, and (4) inequitable refusal of the lessor to agree to unitization and secondary recovery.
This is essentially a fact case. The case law in Kansas adequately covers the questions of law raised on appeal. So we must examine the evidence in the record in light of our previous decisions to determine if the findings and conclusions of the trial court are adequately supported by the evidence and the law.
In reviewing the findings to determine if they are supported by substantial evidence this court considers the evidence favorable to the successful party. (Fox v. Wilson, 211 Kan. 563, Syl. ¶ 6, 507 P. 2d 252.) If there is substantial evidence to support the findings it is of no consequence there may have been contrary evidence adduced which, if believed, would have supported different findings. (Farmers State Bank of Ingalls v. Conrardy, 215 Kan. 334, Syl. ¶ 1, 524 P. 2d 690.) A reviewing court does not pass on the credibility of witnesses or the truth of their testimony. Substantial evidence means evidence possessing something of substance and relevant consequence, and which furnishes substantial basis of fact from which the issues can reasonably be resolved. (Mann v. Good, 202 Kan. 631, Syl. f 2, 451 P. 2d 233.)
The oil and gas lease in the present case was executed by plaintiff on a standard form (Form 88 — [Producers] 1-43 B) which contains no agreement or express covenant as to additional development in event of production. In such case the law implies a covenant to continue development with reasonable diligence until a sufficient number of wells are drilled to reasonably secure the oil and gas underlying the premises. The cases which have recognized the implied covenants to develop the premises are collected in Renner v. Monsanto Chemical Co., 187 Kan. 158, 166, 354 P. 2d 326. In Renner it is recognized that the implied covenant to drill additional wells and reasonably secure the oil and gas underlying the premises in commercial quantities is independent and distinct from the implied covenant Or duty of the lessee to protect against drainage by drilling offset wells. Each such covenant may be a basis for requiring the lessee to drill additional wells on the leased premises. Under the implied covenant of reasonable development when oil in paying quantities becomes apparent and the number of wells to be drilled on the lease is not specified, there is an implied obligation on the lessee to continue development of the leased premises by drilling as many wells as reasonably necessary to secure the oil for the common good of both the lessor and the lessee. (Temple v. Continental Oil Co., 182 Kan. 213, 320 P.2d 1039, reh. den. 183 Kan. 471, 328 P. 2d 358.) Under the implied covenant to protect against drainage, because of the fluidity of oil and the likelihood of its being withdrawn from the leased premises by the operation of wells on adjoining lands, a more rigid duty is imposed upon the lessee to protect the premises from substantial drainage. The lessee is obligated to drill sufficient wells at proper locations adjacent to the lease boundary at such points opposite producing well locations on adjoining lands to protect the premises from substantial drainage. (Renner v. Monsanto Chemical Co., supra.)
Whether a lessee has performed the duties imposed by these implied covenants is a question of fact. The extent of the duties required of a lessee is measured by what is referred to as “the prudent operator test”. Under the prudent operator test the lessee must continue reasonable development of the leased premises to secure the oil for the common advantage of both lessor and lessee and may be expected and required to do that which an operator of ordinary prudence would do to develop and protect the interests of the parties. (Fischer v. Magnolia Petroleum Co., 156 Kan. 367, 133 P. 2d 95.) The large expense incident to exploration and development, combined with the additional fact the lessee must bear the loss of unsuccessful exploration and development, justifies the lessee in exercising caution with regard to his own economic interests, as well as the interests of the lessor. A lessee is under no duty to undertake development which is unprofitable to him just because it might result in some profit to the lessor. (Myers v. Shell Petroleum Corp., 153 Kan. 287, 295, 110 P.2d 810.)
In Sanders v. Birmingham, 214 Kan. 769, 522 P. 2d 959, this court set forth some of the salient factors to be considered in applying the prudent operator rule in an action for partial cancellation of an oil and gas lease. It is there stated:
“. . . Some of the factors which have been suggested for consideration by the Kansas decisions are the following: The quantity of oil and gas capable of being produced from the premises as indicated by prior exploration and development; the local market and demand therefor; the extent and results of the operations, if any, on adjacent lands; the character of the natural reservoir — whether such as to permit the drainage of a large area by each well — and the usages of the business. Among tire economic factors to be considered are the cost of drilling, equipment and operation of wells; cost of transportation, cost of storage, the prevailing price; general market conditions as influenced by supply and demand or by regulation of production through governmental agencies. (Fischer v. Magnolia Petroleum Co., supra, citing 2 Summers Oil and Gas, Perm, ed., pp. 377, 378.) In the various cases the emphasis has shifted from one factor to another depending on the particular factual circumstances in each case.” (p. 776.)
Now let us turn to the facts of this case. The plaintiff-appellee, David Rush, owns the land covered by the oil and gas lease which' is involved in this litigation. The lease is referred to as the Dave Rush “A” lease and covers 160 acres located in an oil field in Graham County, Kansas, referred to as the “High Hill Field”. At the trial a map of the area was admitted in evidence as defendant’s exhibit No. 2 which will be helpful. It is set out below.
As shown by this map various other leases cover portions of this High Hill Field including a lease called the Dave Rush “B” lease, which lease is not directly involved in this action. The leases were obtained by and the wells were drilled for Don Pratt. Three wells were drilled on the Dave Rush “A” lease in 1967 and 1968. The discovery well of the High Hill Field is located in the northeast corner of the Dave Rush “A” lease. The legal description of the entire lease covers the SM of the NWM and the NK of the SWI of Section 20, Township 10 south, Range 24 west of the 6 pm. Since the lease covered a square acreage of 160 acres the witnesses at the trial referred to locations within the lease as being on the northeast, northwest, southwest, or southeast 40 acres of the lease. Such references do not refer to the legal description, rather they indicate the location of a particular 40 acres with reference to the square 160 acres covered by the lease. We will continue the pattern set by the witnesses and disregard exact legal descriptions unless we specifically designate otherwise.
The second well drilled on the Dave Rush “A” lease was located in the SW 10 acres of the NE 40 acres of the lease. It produced for a time but was being converted by defendants-appellants (King Oil Company and T. Warren Hall) into a water injection well. The third well was drilled on the SE 40 acres of the lease and was a dry hole. The present status of these and other wells in the field may be determined from the legend appearing on the map reproduced herein.
King Oil Company purchased the leases covering the major portion of this field from Don Pratt and his associates in the spring of 1970. No drilling has been attempted by King Oil Company and no wells have been drilled since 1968. Demand for additional development was made by David Rush. King Oil Company refused to drill, claiming a waterflood program for secondary recovery was the only feasible method to recover the oil. Rush refused to sign a unitization agreement. The die was cast and this action followed.
At the conclusion of the trial, after amending the original findings and conclusions, the trial court entered an alternative decree. This final decree was concerned with two separate matters. The first was the conversion of the Dave Rush “A” No. 2 well into a water injection well. In this regard it was ordered:
“c. The defendants will be granted 90 days from this date to complete the Dave Rush “A-2” as a water injection well or the same will be regarded as abandoned. Such completion will not affect adversely any appeal rights of defendants herein.”
None of the points raised in this appeal speaks directly to that part of the judgment.
The second matter concerned further drilling. In this regard the substance of the alternative decree and amendment was to order four additional locations to be drilled. The first was to be drilled on the NE 10 acres of the NW 40 acres of the lease (two 10 acre locations west of the Dave Rush “A” 1 well). The second was to be drilled on the NW 10 acres of the NE 40 acres of the lease (one 10 acre location west of the Dave Rush “A” 1 well). The third was to be drilled on the SE 10 acres of the NE 40 acres of the lease (one 10 acre location south of the Dave Rush “A” 1 well). The fourth was to be drilled on the south 20 acres of the SE 40 acres of the lease and to offset the G. Rush Estate “A” 1 well. This location would be three 10 acre locations south of the Dave Rush “A” 1 well.
The trial court recognized appellant’s continued right to the producing well, Dave Rush “A” No. 1 and excepted 10 acres in a square immediately surrounding said well from cancellation under the alternative decree.
The trial court conditioned the required test drilling as follows:
“d. The court retains jurisdiction and reserves ruling on the identity of specific locations for further development after the first test which will be drilled within 60 days on the Northeast Quarter of the Southwest Quarter of the Northwest Quarter (NE/4 SW/4 NW/4) of Section Twenty (20), Township Ten (10) South, Range Twenty-four (24) West of the 6th P. M., and will, in furtherance thereof, consider reception of additional facts after said first test which would, in the opinion of both or either of the parties affect materially the drilling pattern for further development on said involved oil and gas lease from the order of priority set forth in ‘Findings of Fact’ # 14 and ‘Conclusions of Law’ # 6.”
Now before considering the specific points raised let us turn to the evidence on which plaintiff-appellee relies. The plaintiff relied on the testimony of an expert witness, Walter H. Martz, who was a petroleum geologist of 23 years experience. He had worked in this particular area and had completed a study of the High Hill Field. The purpose of the study was to determine, based on his opinion, whether there was a reasonable basis for requiring further development on the Dave Rush “A” lease. He laid a foundation for and introduced two subsurface geological maps con toured on top of the Lansing-Kansas City formation based upon log data from all the wells drilled in the field. These maps showed the discovery well, Dave Rush “A” 1, to be the highest well in the field at a minus elevation of 1300 feet below sea level. He testified that he would expect a well drilled anywhere between the 1300 and 1310 contour lines on the map to produce oil in paying quantities. The producing wells in the area were drilled on elevations which varied from a minus 1300 to minus 1323. The witness further testified there was a reasonable basis in the information available from this field to expect commercial oil possibilities for wells drilled on elevations between —1310 and —1320. He testified if no more test wells are drilled on the west 80 acres of the Dave Rush “A” lease the oil is just going to sit there from now on until it is drilled. He mentioned the suggested drilling locations on this lease in an order of preference and stated the order of preference might change depending on the results and information obtained from the first test well. He testified as to the cumulative production of the various leases in the field as well as the production from particular wells. He testified production might be expected in paying quantities from the locations recommended when he considered the present price of oil, the reasonably expected quantity recoverable, and the costs of drilling and producing. He further testified that the limited water injection initiated by King Oil Company in this field had failed to show any appreciable increase in production.
Leo J. Dreiling was the second expert who testified for plaintiff. His company had drilled all of the wells in the High Hill Field for Don Pratt, the original lessee, except two. His drilling experience in this area included other oil fields in Sheridan, Rooks, Russell, Ellis, and Trego counties and spanned a period of 23 years. He testified as an experienced operator of oil leases that any reasonably prudent operator after drilling the wells now producing in High Hill Field would not hesitate to drill more wells. He suggested the locations on the Dave Rush “A” lease where he thought a reasonably prudent operator would drill, including the offset to the G. Rush Estate “B” 1 well. His suggested locations followed closely those proposed by Mr. Martz. In addition he gave testimony on the costs of drilling, equipping and producing a well in this field. He indicated any well which produced 15,000 barrels of oil or more would be economically profitable since oil was being sold from present wells on the lease for $5.17 a barrel. He stated that any oil which could be obtained and classified as new oil might bring $11.00 a barrel.
Production from the High Hill Field wells varied but cumulative production established for wells centrally located in the minus 1300 to 1310 elevations were as follows: Hobbs “A” 2 — 48,000 barrels; G. Rush Estate “B” 3 — 78,119 barrels; G. Rush Estate “B” 1 — 139,276; Dave Rush “A” 1 — 166,445 barrels; Dave Rush “A” 2 — 6,880 barrels; G. Rush Estate “C” 2 — 59,596 barrels. Production from wells drilled or located in the minus 1311 to 1323 elevations varied from zero to 3728 barrels.
After reviewing the evidence in the record including the testimony of the above experts we can only conclude there is substantial evidence in the record from which the trial court could properly find the defendants had failed to continue development of the leased premises, had failed to drill as many wells as was reasonably necessary to secure the oil for the common good and had failed to protect the leased premises from drainage.
The appellants list the factors having a bearing on the need for further development of an oil lease which this court suggested in Sanders v. Birmingham, supra, and argue that some of the factors suggested were not supported by plaintiff’s evidence. It was pointed out in Sanders that in the cases coming before the courts the emphasis has shifted from one factor to another depending on the particular factual circumstances of each case. Sanders does not require all the suggested factors be covered in the evidence.
Appellant contends the judgment does not adequately advise of the reasons for the decision nor of the standards applied. As to the latter, the testimony in the record clearly establishes that the trial judge was aware of the “reasonably prudent operator” standard. This standard was referred to in the testimony presented by plaintiff’s witnesses. The court’s failure to mention it in the findings is not reversible error. In Nauman v. Kenosha Auto Transport Co., 186 Kan. 305, 349 P. 2d 931, it is stated:
“A genera] finding made by a trial court determines every controverted question of fact in support of which evidence has been introduced, and a general finding by the trial court raises a presumption that it found all facts necessary to sustain and support the judgment.” (Syl. ¶ 2.) (See also Denison Mutual Telephone Co. v. Kendall, 195 Kan. 227, 230, 403 P. 2d 1011.)
The implied covenant to develop a lease, recognized in Kansas, is measured by the “reasonably prudent operator” test. The finding by the trial court that defendants breached this covenant necessarily includes a finding that they did not meet the standard required. When it is apparent from the record that the trial court was aware of the test required the trial court will be presumed to have applied this test unless the contrary is shown.
Appellant’s third point on appeal is that the trial court failed to consider the effect of the Corporation Commission’s proration order concerning the High Hill Field. The pertinent order from that agency, Docket No. 81,087-C (C-13,405) adopted a twenty acre spacing in the High Hill Pool. The Administrative Interpretation of Rule 82-2-109-D (I) provides in part:
“(d) The completion of a commercial oil well approximately in the center of a 20-acre tract is deemed to prove that all of such 20 acres is productive of crude oil until the contrary is established by the evidence presented at a hearing with respect thereto or by the drilling of a noncommercial or dry hole within the borders of such tract.
x* * xt * xt x>
“(h) Acreage is attributed to wells primarily for the purpose of protecting correlative rights, although the allocation of the pool’s allowable to the wells within the pool is generally inseparably connected with the prevention of waste. Consequently, productivities and acreage are used in conjunction with each other for the purpose of fixing well allowables, that is, the well’s just and equitable share of the oil which is being currently produced by the pool. Drainage which is not equalized by counter drainage is reasonably avoided by the utilization of these factors.
x* xt xt xt xt xt
“(j) The attribution of a specific acreage factor to a well, the designation of specified acreage as being attributable thereto and the computation of the well’s allowable in part by the use of such factor do not constitute a finding that the well will adequately and efficiently drain the tract assigned to it; but such acts do constitute a finding that such well will adequately and efficiently drain an area equal to the size of the tract assigned to it. Designated acreage is assigned to wells for the purpose of recognizing that the concentration of development within the most productive portions of leases does not obtain a representative sampling of all the productive portions thereof. In order to make the allowables established for all of the wells upon such leases reflect relative abilities and thereby protect correlative rights as between developed leases, specific acreage is, however, designated as being attributable to each well.
“(k) Acreage once attributed to a well cannot thereafter be attributed to another well unless the Commission should order otherwise. However, the completion of a well within the borders of a tract, all of whose acreage has been allocated to another well, causes a readjustment of acreage factors in conformance with the revised status of the lease.”
The appellant assigns two effects to these regulations. First, the order constitutes a finding, binding on the plaintiff, that each producing well will adequately and efficiently drain twenty acres. The second is that the order prevents any increase in production allowable if a well were drilled upon the locations indicated by plaintiff, to the extent that such locations are within acreage presently attributable to the Dave Rush “A” 1 or “A” 2 well. Because of the proximity to the Dave Rush “A” 1 well of two of the proposed sites, appellants maintain this would be an equivalent to drilling on a ten-acre spacing. Thus, even if a new well were drilled, the acreage would be divided in half and each well would have an allowable production of one half the present allowable production of the Dave Rush “A” 1.
The question has been thoroughly discussed and resolved by this court in Renner v. Monsanto Chemical Co., supra. In that case defendants contended that under the state proration laws and the proration orders of the State Corporation Commission, the commission attributed all of the acreage of the leases to the existing wells under 20 acre spacing. Therefore, they argued, the lease was fully developed. This court rejected their contention. The court found the State Corporation Commission orders did not “restrict nor relieve the obligations of the implied covenants of an oil and gas lease.”
In Renner this court examined the Oil Conservation Statute (G. S. 1949, 55-601, et seq., as amended) which is basically the same statute as is currently in force (K. S. A. 55-601, et seq.) and considered its effect on implied covenants. There we state:
“The commission has limited jurisdiction, and only that conferred by statute (Bennett v. Corporation Commission, supra [157 Kan. 589, 142 P. 2d 810, 150 A. L. R. 1140]). The statute did not authorize the commission to regulate the spacing of wells or to establish drilling units (1 Summers, op. cit. supra, §83.10, p, 303); it provided only that, in fixing allowables, the commission give consideration, among other things, to the acreage factor, that is, the acreage of an owner which is reasonably attributable to each of his wells. Acreage is attributed to a well primarily for the purpose of protecting correlative rights, and productivity (commonly called potential) and acreage are used in conjunction with each other for the purpose of fixing a well’s allowable. The attributation of specific acreage for that purpose does not constitute a finding that the well will adequately and effectively drain the tract assigned to it; it only determines that such a well will adequately drain an area equal to the size of the tract assigned (State Corporation Commission’s General Rules and Regulations, 82-2-109 D [I], and Administrative Interpretations h, j, and k, pp. 23, 24, adopted July 1958 and filed in the office of revisor of statutes [G. S. 1949, 77-405, et seq.]). Drainage is always radial from the well bore and where, as here, some 20-acre well spacings bordering the lease line are rectangular and some are triangular and the well on each is not located in the center, physical factors demonstrate that uncompensated drainage will occur.
“We think it clear that, from a consideration of the statute,, oil proration orders of the commission do not in any manner alter the lessee’s obligation under the implied covenant to drill additional wells to protect the premises against drainage. Manifestly, the statute provides no basis for the supersession of that duty, and affords no inference that a landowner must submit to uncompensated drainage without the possibility of exacting protection from his lessee. The duty to drill wells under the covenant is not changed since pro-ration involves only the restriction of production after the wells are drilled.
“The purpose of the order attributing specific acreage to the south four Renner wells was only to establish a proration formula for each well to insure its fair share of the state’s market for crude oil produced from the Cooper Field, and it did not constitute a finding that those wells would adequately and effectively drain the acreage attributed, or preclude judicial review of the plaintiffs’ claim of a breach of the implied covenant to protect the premises against drainage.” (187 Kan. pp. 171-172.)
The court also spoke to the problem of attributing acreage to a subsequent well once it has been attributed to an existing one:
". . . The fact that acreage once attributed to an existing well cannot thereafter be attributed to another well unless the commission shall order otherwise does not affect this situation. Under the rules of the commission previously referred to, the completion of a new well on the tract in question would cause only a readjustment of the acreage factor in conformity with the revised status of the lease.” (187 Kan. p. 172.)
The purpose of the statute (K. S. A. 55-601, et seq.) is not to give the corporation commission the power to regulate development but rather to prevent waste and the unfair or inequitable taking of oil from any pool. (Bennett v. Corporation Commission, 157 Kan. 589, 142 P. 2d 810, 150 A. L. R. 1140; Aylward Production Corp. v. Corporation Commission, 162 Kan. 428, 176 P. 2d 861.) The orders of the commission in this regard do not preclude judicial review of a claim based on a breach of the implied covenants in an oil and gas lease.
Included in the statutes referred to is K. S. A. 55-606, which provides, “Any rule, regulation, order or decision of the commission may be superseded by the district court upon such terms and conditions as it may deem proper.” The reasoning in Renner controls here and the district court’s order is not invalidated by the corporation commission’s proration rulings.
The district court in its revised alternative decree directed appellants to drill a well at a specified 10 acre location on the lease and commence the same within 60 days. Three additional drilling locations were identified as necessary to complete reasonably prudent development of the entire lease. The court retained jurisdiction of the case and reserved “ruling on the identity of specific locations” of the three additional drilling locations. It stated that after the first test well was completed any additional evidence which might materially affect the drilling pattern on future development of the lease would be received. The appellants question the reasonableness of such an order and urge this court to reverse the alternative decree as being inequitable and unjust.
The type of decree entered in this case is not without precedent. In Brown v. Oil Co., 114 Kan. 166, 217 Pac. 286, this court reversed an order of the trial court and remanded the case for further proceedings. On remand the trial court was directed to require the lessee to select and designate particular 40 acre tracts on which they proposed to begin exploration and development. It was suggested, as to the tracts selected, the lessees be required to commence development within 90 days and when the first such test had been completed with reasonable diligence successive 40 acre tracts should be selected and explored on a 90 day timetable until all such tracts selected had been tested.
In Webb v. Croft, 120 Kan. 654, 244 Pac. 1033, successive locations for drilling and exploration on a 580 acre lease were ordered on a timetable which required the drilling of at least one 80 acre tract each year until the acreage was fully explored. This alternative decree was affirmed on appeal.
In Storm v. Barbara Oil Co., 177 Kan. 589, 282 P. 2d 417, an alternative decree required commencement of an oil or gas test well within 90 days, the same to be completed with due diligence, and thereafter such further development as reasonably prudent, subject to the further order of the court. The trial court retained jurisdiction to make such further orders as might be necessary. The decree was affirmed on appeal.
In Stamper v. Jones, 188 Kan. 626, 364 P. 2d 972, under slightly different but analogous circumstances, one action was brought to require further development on each of six separate but adjacent 80 acre leases. This court approved an alternative decree with modification. The opinion modifying the decree had the effect of requiring successive drilling and exploration on designated portions of all six leases at reasonable intervals to be determined by the trial court.
An alternative decree ordered by a court of equity for further development of an oil and gas lease should be conditioned on re quirements of development which are reasonable and just under the facts and circumstances of the particular case (Webb v. Croft, supra) and the court is authorized to require the lessee to drill and develop the lease on lessors land within a reasonable time under penalty of cancellation. (Howerton v. Gas Co., 82 Kan. 367, Syl. 4, 108 Pac. 813.)
After reviewing the alternative decrees approved in the foregoing cases we do not find that the alternative decree in the present case to be inequitable or unjust. The evidence in the record supports the need for further development under the reasonably prudent operator test. The drilling of a test well on the first location is not an unreasonable burden upon the lessees. It is quite proper for the trial court to retain jurisdiction. If the first test well turns out to be a commercial producer the lessor should not be required to prosecute separate and successive actions to obtain full development of this one 160 acre lease.
The final point raised by appellants concerns appellee’s refusal to participate in a proposed unitization program. They argue that appellee should be barred from equitable relief by the unclean hands doctrine and he should not be permitted to refuse to engage in secondary recovery, yet demand the drilling of more wells.
In Vonfeldt v. Hanes, 196 Kan. 719, 414 P. 2d 7, we examined a similar contention and made the following observation:
“The defendant testified he had no present plans for drilling, and that he would only consider drilling on the east 80 acres in relation to a secondary recovery operation for both leases. He principally complains that plaintiff had not indicated any desire or inclination to join with him in a secondary recovery operation. He cites no authority that plaintiff is under any obligation or duty to cooperate in such an operation. ... It seems obvious that, in view of the extensive litigation, the district court concluded it was somewhat incongruous for the defendant to insist that the plaintiff and he should go into business together. . . .” (p. 723.)
Under the facts of this case the lessor was under no legal duty to unitize his land with other leases in the area in order to facilitate a secondary recovery operation urged by the lessees.
Appellants insist that unitization was necessary because the area of the High Hill Field had been virtually depleted by primary recovery. The testimony of Martz and Dreiling was to the contrary. Their testimony established the necessity for drilling additional tests to properly develop the remaining acreage and to protect against drainage. Martz testified that if no more test wells are drilled on the west eighty acres of the lease the oil underlying that portion of the lease would remain untapped and undeveloped until someone drills in that area. The trial court relied heavily upon the testimony of these two witnesses and their testimony supports the findings.
The only drilling undertaken on this lease was completed in 1967 and 1968. The appellant, King Oil Company, purchased the controlling interest in the lease in 1970. When this action was filed in 1974, King Oil Company had not attempted further exploration and it insisted that further drilling was economically unfeasible. The plaintiff’s evidence was sufficient to support the trial court’s findings to the contrary. The findings justified the provisions of the alternative decree.
The judgment is affirmed.
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The opinion of the court was delivered by
Schroeder, J.:
This is an appeal in a criminal action by Larry E. Harwick (defendant-appellant) from a jury verdict finding him guilty of two counts of aggravated robbery (K. S. A. 21-3427) and two counts of unlawful possession of a firearm (K. S. A. 21-4204).
The appellant challenges the state’s use of a confession and attacks the sufficiency of the evidence.
On December 22, 1973, Theresa Boggess, a clerk at the Town and Country Market, No. 10, at 1502 East Harry in Wichita, and Glenda Rowe, an eleven-year-old friend, were in the market when it was robbed at about 7:30 p. m. Theresa remembered the robber, whom she and Glenda both identified as the appellant, because in November he had hung around the store for about an hour making Theresa nervous. On December 22, 1973, the robber asked for some thumb tacks. When Theresa opened the cash register to ring up the sale, the robber, armed with a small hand gun, told her to hand over all the money. He then fled with $85. The police were called, but no arrest was made.
On February 15, 1974, another armed robbery occurred. Betty Stiles was tending a bar at the Jekyll and Hyde Tavern at 1119 East Pawnee. She opened the business at 2:10 p. m. and a man she identified as the appellant walked in and ordered a beer. After listening to some music, the man pulled a gun and demanded the tavern’s money. As he fled the tavern with $300, Barbara Pestinger, the tavern owner, saw him leaving in a 1966 to 1968 light green Pontiac with her bank bags. Barbara didn’t try to stop the robber because she thought he was probably armed if he got the money from Betty. Again the police were called, but no arrests were made.
Later in February of 1974, Theresa recognized the appellant who purchased some notebook paper at the Town and Country Market. She notified the police who took the appellant into custody. The appellant’s home was later searched, and a pair of gloves and a blue hat were found and described as similar to those worn by the robber. However, no gun was ever found and introduced into evidence.
During a police interrogation on March 9, 1974, the appellant allegedly made inculpatory statements. The state introduced a Miranda waiver of rights form signed by the appellant. (Miranda v. Arizona, 384 U. S. 436, 16 L. Ed 2d 694, 86 S. Ct. 1602.) Detective Jerry Fraipont, a twelve year veteran of the Wichita Police Department, conducted the interrogation. Detective Fraipont testified he informed the appellant of his rights and that the appellant had been identified as the robber of three locations. The following exchange then took place:
“Q. What was his response?
“A. He said: If I clean up all the robberies and everything I done — he said — would you not charge me with any more?
“Q. How many robberies were you speaking of that you were going to charge him with?
“A. I informed him that I was going to charge him with three robberies, that we had already made on him.
* « * * *
“Q. After he made this offer to you on cleaning up on the rest of the robberies, if he was just charged with these three, what did you say?
“A. Informed him that if he would clean up with me and shoot straight with me, that I would go to the D. A. and present what I had, and he more than likely wouldn’t be charged with any more, just these three originally.
“Q. Now, did he clean up on any other robberies?
“A. Yes, sir.
“Q. Approximately how many?
“A. . . . [H]e picked up about ten robberies or there abouts. . . .”
Detective Fraipont testified the police informed the appellant they could offer no real promise; that they would talk to the D. A.’s office and explain he situation and maybe they would be of some assistance when it did come time for sentencing, if he was guilty. The appellant orally admitted two armed robberies, but no written confession was signed.
A Jackson v. Denno, 378 U. S. 368, 12 L. Ed. 2d 908, 84 S. Ct. 1774, 1 A. L. R. 3d 1205, hearing was held outside the hearing of the jury and the confession was admitted by the court with the following comment:
“The purpose of this hearing is not for me to determine whether the officer is telling the truth. All I am to determine is what was said was vountarily [said] by the Defendant. So, I will allow the officer’s testimony. He was properly advised and if he made those, the Jury is entitled to know that. If you can convince [them] that he did not make them, it will be for the Jury to decide, not for me to decide, . .
After hearing the evidence, the jury found the appellant guilty of two counts of aggravated robbery (K. S. A. 21-3427) and two counts of unlawful possession of a firearm (K. S. A. 2-4204), but not guilty of Counts V and VI of aggravated robbery of another place and unlawful possession of a firearm. Since the appellant had been released from imprisonment for a felony committed in 1973, the appellant was charged with unlawful possession of a firearm in connection with each of the robberies.
The appellant contends he never admitted committing any crime and made no deals with the police about any robbery. He also contends, if he did confess, the trial court erred in admitting the confession when the record shows he had been cajoled, threatened and induced by promises to waive his right against self-incrimination.
Statutory language concerning the admissibility of confessions is found at K. S. A. 22-3215. Under this section, the issue on the admissibility of a confession into evidence is not submitted to the jury but is resolved by the trial court. The truth or falsity of a confession need not be considered by the trial court in determining its voluntariness.
The test for this court on appellate review was stated in State v. Creekmore, 208 Kan. 933, 495 P. 2d 96, as follows:
“When the trial court conducts a full preliminary inquiry on the admissibility of an extrajudicial statement given by an accused, determines the statement was freely, voluntarily and intelligently given and admits the statement into evidence at the trial, this court on appeal should accept that determination if it is supported by substantial competent evidence.” (Syl. 2.)
(See also State v. Brown, 217 Kan. 595, 601, 538 P. 2d 631; and State v. Jones, 218 Kan. 720, 545 P. 2d 323.)
Here the appellant testified he read and signed the Miranda warnings under his own free will and talked to the police officer voluntarily. Detective Fraipont indicated the appellant confessed voluntarily. Thus if he confessed, the trial court’s determination that the confession was voluntary is supported by substantial competent evidence. However, the appellant denied ever confessing to any robbery. Under the circumstances the trial court was correct in submitting the alleged confession to the jury. Under K. S. A. 22-3215 (5) the circumstances surrounding the making of the confession may be submitted to the jury as bearing upon the credibility or the weight to be given to the confession.
The appellant, who had prior experience with police practices, also contends promises were made which vitiate the confession. (Citing State v. Stuart, 206 Kan. 11, 476 P. 2d 975.) There promises or threats concerning action to be taken by a public official were first made by the complaining witnesses in order to secure a confession. Here the state’s evidence indicates the appellant first offered to confess and then sought leniency. When the promises are solicited by the accused, freely and voluntarily, the accused cannot be heard to say that in accepting the promise he was the victim of a compelling influence. (Taylor v. Commonwealth, 461 S. W. 2d 920 [Ky. App. 1970].) Detective Fraipont testified he informed the appellant he could really offer no promises, but that he would talk to the district attorney and more than likely the appellant wouldn’t be charged with any more crimes; that maybe the district attorney’s office would be of some assistance when it did come time for sentencing, if the appellant was guilty.
The situation presented is analagous to State v. Smith, 216 Kan. 265, 530 P. 2d 1215, where it was alleged a detective’s promise of leniency induced the defendant to make the damaging confession. There the court noted the trial court had conducted an inquiry and determined the confession was freely, voluntarily and intelligently given, and admitted the confession into evidence. On appeal substantial evidence supported the trial court’s finding that the officer’s statements were not such an inducement as would vitiate a confession. (See also State v. Brown, supra.) Under the facts and circumstances here presented, substantial evidence supports the trial court’s finding that the confession was freely, voluntarily and intelligently given. Detective Fraipont said he could really offer no promises. (United States v. Frazier, 434 F. 2d 994 [5th Cir. 1970]; and United States v. Springer, 460 F. 2d 1344 [7th Cir. 1972], cert. denied, 409 U. S. 873, 34 L. Ed. 2d 125, 93 S. Ct. 205.) Detective Fraipont’s agreement to talk with the district attorney does not make the confession inadmissible. In People v. Hubbard, 55 Ill. 2d 142, 302 N. E. 2d 609 (1973), it was held the mere promise by a detective to inform the prosecuting attorney of the defendant’s cooperation did not render his confession inadmissible. Other courts have approved situations where “bargaining” over the number of crimes to be charged against the defendant occurred. (See, Pontow v. State, 58 Wis. 2d 135, 205 N. W. 2d 775 [1973]; and People v. Rittenhouse, 37 App. Div. 2d 866, 325 N. Y. S. 2d 90 [1971].) Here no bargaining or promises were made concerning the three crimes with which the appellant was charged.
The admissibility of criminal confessions into evidence as an exception to the heresay rule is set forth in K. S. A. 60-460. 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:
# # # £ #
“(f) Confessions. In a criminal proceeding as against the accused, a previous statement by him relative to the offense charged if, and only if, the judge finds that the accused when making the statement was conscious and was capable of understanding what he said and did, and that he was not induced to make the statement (1) under compulsion or by infliction or threats of infliction of suffering upon him or another, or by prolonged interrogation under such circumstances as to render the statement involuntary, or (2) by threats or promises concerning action to be taken by a public official with reference to the crime, likely to cause the accused to make such a statement falsely, and made by a person whom the accused reasonably believed to have the power or authority to execute the same.”
The appellant contends the trial court erred in failing to instruct the jury that it should consider the truth and falsity of the confession along with other evidence in the case.
At trial there was no objection by the appellant to the courts instruction. K. S. A. 22-3414 (3) provides in part:
“No party may assign as error the giving or failure to give an instruction unless he objects thereto before the jury retires to consider its verdict stating distinctly the matter to which he objects and the grounds of his objection unless the instruction is clearly erroneous. . .
(See, State v. Myers, 215 Kan. 600, 603, 527 P. 2d 1053; and State v. Ponds and Garrett, 218 Kan. 416, 419, 543 P. 2d 967.)
The instruction complained of is not clearly erroneous. The substance of the instruction the appellant now argues should have been given was provided in Instruction 10, which reads in part:
“It is for you to determine the weight and credit to be given the testimony of each witness. . . .
«■ # fc «T *
“If you find that any witness has willfully testified falsely concerning any material matter, you have a right to distrust the testimony of that witness in other matters and you may reject all or part of the testimony of that witness, or you may give it such weight as you think it deserves. You should not reject any testimony without cause.”
Error cannot be predicated, on the refusal to give specific instructions where the instructions which were given cover and include the substance of those refused. (State v. Ponds and Garrett, supra.)
In State v. Milow, 199 Kan. 576, 433 P. 2d 538, the court said:
“. . . The trial court has a duty, however, after deciding that a confession has been voluntarily made, and admitted into evidence, to instruct the jury that it should consider the truth or falsity of the confession along with the other evidence in the case (State v. Seward, [163 Kan. 136, 181 P. 2d 478, aff’d on rehearing, 164 Kan. 608, 191 P. 2d 743]), and evidence bearing upon the credence to be given a confession is admissible. (K. S. A. 60-408.)” (p. 589.)
K. S. A. 22-3215 (5) reads in part:
“. . . The circumstances surrounding the making of the confession or admission may be submitted to the jury as bearing upon the credibility or the weight to be given to the confession or admission.”
The above section of the statute, as we construe it, refers to evidence bearing upon the credence to be given a confession or admission and not to a special instruction. PIK Criminal, § 52.17, prior to amendment, set forth a special instruction on confessions. By amendment PIK Criminal, 1975 Supp. § 52.17, now recommends that there be no separate instruction on confessions. (Citing, State v. Stephenson, 217 Kan. 169, 535 P. 2d 940.)
As we construe Milow a special instruction bearing upon the credence to be given a confession or admission is not required, where the jury is given a general instruction bearing on the credibility of the testimony of each witness. (See, State v. Wilkins, 215 Kan. 145, 523 P. 2d 728; State v. Skinner, 210 Kan. 354, 503 P. 2d 168; and State v. Holloway, 219 Kan. 245, 253, 547 P. 2d 741.)
The appellant contends the trial court erred in refusing to sustain his motion to discharge, and further erred in accepting the jury s verdict of guilty, as to the two- counts of unlawful possession of a firearm because there was no proof that the defendant possessed a firearm with a barrel less than twelve (12) inches long as required by K.S. A. 21-4204 (1) (b).
It must be conceded this is an indispensable element of the crime because it is statutory. (State v. Johnson, 216 Kan. 445, 448, 532 P. 2d 1325; and State v. Farris, 218 Kan. 136, 139, 542 P. 2d 725.)
The evidence against-the appellant on this point may be summarized briefly. Theresa Boggess testified the appellant had “a small hand gun” with “a small barrel and the handle was about two inches maybe.” She also testified the appellant “had a gun in his right hand, and he had his gloves covering the gun.” Eleven-year-old Glenda Rowe testified “[t]he gun was just a small gun.” Betty Stiles was asked what kind of a gun was used in the Jekyll and Hyde Tavern robbery and she replied, “[i]t was about that long ([indicating).” No gun was found, but the appellant confessed he threw “this revolver into the river.”
The appellant miscontrues the law. There is no requirement that the firearm itself be produced for the jury’s inspection to support a conviction under K. S. A. 21-4204 (1) (b) or its predecessor. (State v. Wilson, 215 Kan. 28, 523 P. 2d 337; and State v. Potts, 205 Kan. 42, 468 P. 2d 74.)
Under all the facts and circumstances there was sufficient evidence from which the jury could reasonably find the firearm used by the appellant in each of the firearm counts had a barrel less -than twelve inches long. (See, State v. Gustin, 212 Kan. 475, Syl. 3, 510 P. 2d 1290.) In State v. Kelly, 210 Kan. 192, 499 P. 2d 1040, the court held:
“Before a verdict of guilty, which has been approved by the district court, may be set aside because of insufficient evidence, it must clearly be shown that upon no hypothesis whatever is there substantial evidence to support the conclusion reached by the district court.” (Syl. 3.)
(See also State v. Thomas, 220 Kan. 104, 551 P. 2d 873; and State v. Kane, 218 Kan. 13, 542 P. 2d 335.)
The judgment of the lower court is affirmed.
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The opinion of the court was delivered by
Foth, C.:
Appellant Jimmie L. Gander appeals from convictions for aggravated robbery (K. S. A. 21-3427), aggravated battery against a law enforcement officer (K. S. A. 21-3415), and unlawful possession of a firearm (K. S. A. 21-4204).
The convictions stem from a holdup of Everhart’s Supermarket in Wichita. Two men entered the store through a rear door, forced the owner at gunpoint into the check-out area where he withdrew approximately $280 from the cash register and deposited it in a pink pillowoase supplied by the thieves. The two then left through the rear door and were seen by a passerby entering a large blue and white car.
Police officers Herbel and Olson, notified of the robbery and car description by the dispatcher, observed a white over dark blue Gadillac in the area and gave chase. Olson recognized Gander as the driver and one Wendall Parker as the passenger. The Cadillac stopped at a red light but when the officers approached on foot the car ran the light and was pursued by Officer Espinoza in another squad car.
During that chase, the passenger identified as Parker leaned out and fired at Espinoza’s vehicle. One of the bullets shattered the windshield imbedding glass in the officer’s eye, but he nonetheless pursued the Cadillac to where the occupants jumped out. (Espinoza recognized Gander from a previous incident.) Parker then pointed the gun at Espinoza, but it failed to fire. Officers Olson and Herbel who had been dose behind gave chase on foot but were unable to apprehend the two. They were later arrested.
The weapon and pillowcase containing $277.37 were recovered and identified at trial.
Four errors are alleged on appeal.
I. It is argued that the trial court erred in failing to instruct on the lesser included offenses of battery against a law enforcement officer (K. S. A. 21-3413) and criminal injury to persons (K. S. A. [now 1975 Supp.] 21-3431).
Lesser included instructions are required by K. S. A. 21-3107 (3) only “upon the evidence adduced.” Thus, there must be some evidence of the lesser crime. State v. Ponds and Garrett, 218 Kan. 416, 543 P. 2d 967; State v. Masqua, 210 Kan. 419, 502 P. 2d 728. It follows that if no evidence is presented that could support a conviction of the lesser crime, no instruction is necessary. State v. Ponds and Garrett, supra; State v. McDermott, 202 Kan. 399, 449 P. 2d 545.
Appellant urges, and the state concedes, that the distinction between the crime instructed on (aggravated battery against a law enforcement officer) and the lesser offenses is the requirement of an intent to injure. Unlike State v. Seely, 212 Kan. 195, 510 P. 2d 115, and State v. Warbritton, 211 Kan. 506, 506 P. 2d 1152, relied on by appellant, there was in this case no evidence presented that the attack was not intended to injure Officer Espinoza. The officer testified and the shattered windshield bears out that the shots were fired “at” him.
Appellant concedes that there was no testimony bearing directly on the issue of intent, but one is presumed to intend all the natural consequences of his acts. State v. Warbritton, supra; PIK Criminal § 54.01. One who fires a gun at a pursuing car and hits its windshield may be presumed to intend to injure its occupants. Intent, like any element of a crime, may be shown by circumstantial evidence. State v. Townsend, 201 Kan. 122, 439 P. 2d 70. Absent evidence negating an intent to injure the trial court had no duty to instruct on the lesser offenses.
II. Appellant next contends that the trial court erred in refusing to sever the weapons charge, urging that the prior convictions necessary to its proof prejudiced the jury on the battery and robbery counts.
The three counts were admittedly properly joined under K. S. A. 22-3202 (1) which provides:
“Two or more crimes may be charged against a defendant in the same oomplaint, information or indictment in a separate count for each crime if the crimes charged, whether felonies or misdemeanors or both, are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan.”
See also, State v. Cameron & Bentley, 216 Kan. 644, 533 P. 2d 1255. The decision whether to sever rests in the sound discretion of the trial court. State v. Anderson, 202 Kan. 52, 446 P. 2d 844. In that case it was argued that evidence of prior convictions was inherently prejudicial and inadmissible under K. S. A. 60-455. The court held:
“Where separate and distinct felonies are charged in separate counts of one and the same information and all of the offenses charged are of the same general character, requiring the same mode of trial, the same kind of evidence, and the same kind of punishment, the defendant may be tried upon all of the several counts of the information at one and the same time, and in one trial. The fact that one of the counts with which the defendant is charged consists of the possession of a pistol after conviction of a felony, contrary to K. S. A. 21-2611, does not alter the foregoing rule." (Syl. Para. 3. Emphasis added.)
See also, State v. Rasler, 216 Kan. 582, 533 P. 2d 1262. The trial court did not abuse its discretion in refusing to sever.
Moreover, in an abundance of caution, the trial court gave a limiting instruction to the effect that the evidence of the prior conviction should only be considered in connection with the weapons violation. The evidence was admissible without regard to K. S. A. 60-455, so the instruction was not required in the absence of a request. (State v. Knowles, 209 Kan. 676, 498 P. 2d 40, Syl. Para. 3.) It did however, help to offset any prejudice resulting from the joinder.
III. Error is next claimed in that the jury considered evidence which had not been admitted at trial. The items in question were two photographs and an information sheet from the line-up in which the defendant had been identified. The exhibits had been used in determining the line-up’s fairness at a pretrial hearing but they were not introduced at trial. Neither was any testimony relating to the line-up. The three items accidentally went to the jury as part of the evidence. Appellant urges prejudice from the “aura of criminality” which the items presented.
When the mistake was discovered the trial judge called the jury into the court room and instructed it to disregard the exhibits:
“The Court: I have one additional instruction I want to give the jury. Exhibits 1, 4, and 5 were solely for the consideration of the Court on a matter of law. No evidence was presented on any lineup. In your consideration of this case, you are to disregard Exhibits 1, 4 and 5 and not consider these exhibits in any manner in your consideration of this case. Thank you very much. You may now resume your deliberations.”
Appellant has demonstrated no prejudice which the instruction failed to cure. At best the exhibits could have been viewed as bearing on identification, but Gander was positively identified at trial by four witnesses. It is basic that an admonition to the jury normally cures any prejudice from the improper admission of evidence. State v. Culbertson, 214 Kan. 884, 522 P. 2d 391; City of Wichita v. Hibbs, 158 Kan. 185, 146 P. 2d 397. This is not a case in which “it cannot be said the jury was not prejudiced” (State v. Mans, 213 Kan. 36, 515 P. 2d 810, Syl. Para. 3), and we thus hold that the instruction cured any error.
In addition, the defendant waived any error by his failure to ask for a mistrial or to object to the curative instruction. He cannot assert error on appeal when he remained silent at trial. State v. Johnson, 219 Kan. 847, 549 P. 2d 1370 and cases cited 'therein.
IV. Finally appellant urges that he was denied a fair trial by the court’s denial of a change of venue. The trial court considered twelve news stories concerning Gander from the Wichita Eagle-Beacon, one of which was a human interest story portraying his life as a drug addict. The most recent article was published ten months before the change of venue hearing.
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 section was discussed at length in State v. McLaughlin, 207 Kan. 594, 485 P. 2d 1360, wherein we stated:
“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. (Davis v. State, 204 Kan. 816, 466 P. 2d 311, and cases cited therein.)
“Furthermore, prejudice must be established ‘not as a matter of speculation but as a demonstrable reality.’ (Woods v. Munns, 347 F. 2d 948, 951 [10th Cir. 1965].)” (pp. 597-98.)
The publication of newspaper articles in local newspapers does not establish prejudice per se. State v. McCorgary, 218 Kan. 358, 543 P. 2d 952.
The stories were months old and the showing of prejudice was speculative at best. We thus find no abuse of discretion in the trial court’s finding that prejudice was not established as a “demonstrable reality.”
The convictions are affirmed.
APPROVED BY THE COURT
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The opinion of the court was delivered by
Fatzer, C. J.:
This is an appeal from a conviction by jury of aggravated robbery (K. S. A. 21-3427).
At approximately 2:15 a. m. on August 9, 1974, two masked individuals entered the Town & Country Market at 600 South Oliver. One wore a fatigue jacket and what appeared to be a gas mask and brandished a double barreled sawed off shotgun. The others head was covered with a ski mask. One store employee and a customer were in the store. Within a few minutes, the robbers took the money from a cash register, the safe and from the customer s purse and fled.
At 2:30 a. m., Wichita Police Officers Meyers and Knard, who were patrolling in the general area, were notified of the robbery. They drove to the robbery scene, and after conferring briefly with another officer already there, started circulating in the area. In a few minutes, the robbers’ description came over the radio: two white males, one believed blond wearing a gas mask and army fatigue jacket; the second was larger and wore a dark colored ski mask. After a few more minutes the officers decided to return to a residence in the same area of the city where at approximately 2:00 a. m. that morning, they had seen the defendant Richard Boone coming out of the house as they drove by. They thought he had left the address in a tan stationwagon. The officers knew Boone had been involved in prior robberies and thought he might have been involved in this one.
Arriving at 4616 Ross Parkway at approximately 3:00 a. m., the officers found the house dark and no car on the street. They parked in an alcove across the street with the front of their marked patrol car about flush with the street and waited. It was raining. In a few minutes the tan stationwagon approached from the east. As it passed, the officers turned on their headlights, and the startled driver, Richard Boone, looked right at them. They pulled in behind Boone, and both cars stopped on the street in front of 4616 Ross Parkway. Boone immediately got out of the car and stood beside it. The officers got out of their car and approached Boone with guns drawn. Officer Knard advised Boone they were stopping him because there had just been a robbery, directed Boone to put his hands on the car and proceeded to give him a pat down for weapons. While this was going on, Officer Meyers went to the other side of the car and looked in through the windows aided by his flashlight. On the front floor board he observed a twenty dollar bill and a five dollar bill paperclipped together; the bills were wet. On the back floorboard he observed what looked like a gas mask. He advised Officer Knard what he had found. Knard handcuffed Boone and then advised him of his rights under the Miranda decision. Knard asked Boone if he understood the rights, and Boone answered in the affirmative. Knard then asked Boone if, “having these rights in mind,” he wished to talk to the officers. Boone’s only response was that he wanted to talk to his attorney. Boone was then taken back and put in the patrol car out of the rain.
Officers Meyers and Knard requested a laboratory investigator to examine the car Boone had been driving. After another officer arrived to watch the car, they left, taking Boone and the gas mask with them, and proceeded back to the scene of the robbery. Shortly thereafter, a laboratory investigator for the Wichita Police Department arrived at 4616 Ross Parkway. His inspection of the tan Ford stationwagon revealed money later identified as coming from the robbed store.
Arriving at 600 South Oliver, Officers Knard and Meyers showed Boone and the gas mask to the robbery victims. They could not identify Boone, but said the mask looked like the one used in the robbery. Boone was then taken to the police station and was subsequently charged by information with two counts of aggravated robbery.
The district court consolidated for trial the instant information with another information against the defendant for an aggravated robbery on June 25, 1974. A jury trial commenced on December 3, 1974, with separate counsel defending Boone on each robbery charge. For the August 9, 1974, robbery, the jury returned a verdict of guilty on one count of aggravated robbery. The defendant now appeals this conviction contending four errors require reversal. The defendant made a separate appeal from his conviction for the June 25, 1974, robbery in State v. Boone, 220 Kan. 771, 556 P. 2d 880.
The appellant’s first point on appeal is that it was prejudicial error to admit certain items into evidence, following the overruling of his oral motion to suppress, and over the objection of counsel, because they were the fruits of an illegal search. The items appellant contends were improperly admitted are the gas mask taken from the car by the arresting officers, money and a brown paper sack discovered in the car by the Wichita Police Department laboratory investigator, and money taken from the appellant at the police station. The appellant argues that his arrest was illegal because it was not based on probable cause and that the subsequent search pursuant to the illegal arrest was likewise illegal and its fruits tainted.
The appellant correctly points out that K. S. A. 22-2401 requires probable cause for an officer to make an arrest without a warrant. Probable cause to justify an arrest or search without a warrant exists when the facts and circumstances known to the officer are sufficient to warrant a man of reasonable caution in the belief that an offense has been committed. State v. Morin, 217 Kan. 646, 538 P. 2d 684. Appellant contends the officers stopped and arrested him on mere suspicion.
The state agrees that the stop was made on mere suspicion, but that it was proper under the stop and frisk statute (K. S. A. 22-2402[1]) which allows a law enforcement officer to stop any person in a public place, without making an arrest, when he reasonably suspects the person has committed a crime. The state contends the officers had sufficient information to reasonably suspect the appellant had committed the robbery. After properly stopping appellant, and while the officers were in a place they had a right to be, they observed fruits and instrumentalities of the robbery in plain view in appellant’s car. This, the state says, provided ample probable cause to make the arrest and subsequent search. We agree.
The Fourth Amendment to the United States Constitution and Section Fifteen of the Bill of Rights of the Kansas Constitution proscribe “unreasonable” searches and seizures. These constitutional provisions apply to “stop and frisk” procedures. City of Garden City v. Mesa, 215 Kan. 674, 527 P. 2d 1036. The central inquiry under the Fourth Amendment is the reasonableness, under all the circumstances, of the particular governmental invasion of a citizen’s personal security. Terry v. Ohio, 392 U. S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889. This court has recognized that under appropriate circumstances, a police officer may approach and stop a person in an appropriate manner for purposes of investigating possible criminal behavior even though there is no probable cause to make an arrest. State v. Jackson, 213 Kan. 219, 515 P. 2d 1108.
In State v. Jackson, supra, we reviewed certain United States Supreme Court decisions on stop and frisk and stated:
“The gist of the [Adams v. Williams, 407 U. S. 143, 92 S. Ct. 1921, 32 L. Ed. 2d 612] opinion is that the stop of a suspicious person may be reasonable if coupled with some facts known to the officer.” Id. at 224, 515 P. 2d at 1113.
We then set out the rule governing the propriety of police action under K. S. A. 22-2402 (1):
“[T]he stop’ authorized by 22-2402 requires that a law enforcement officer must have prior knowledge of facts or observe conduct of a person which causes the officer to reasonably suspect that such person is committing, has committed, or is about to commit a crime.” Id. at 225, 515 P. 2d 1113.
The threshold question in the case at bar is whether the officers had sufficient information when they stopped the appellant to reasonably suspect he had just committed a crime.
The evidentiary record shows that the officers had been watching the residence at 4616 Ross Parkway for some time because they were suspicious of several of the people who lived there and frequented that address. Neighbors and other officers kept them informed of who they knew was living there. The officers knew the tan ’64 Ford stationwagon belonged to Janet Moore, who lived at that address. They knew Boone lived at 4616 Ross Parkway. On August 8, they had stopped to help Boone when he was having car trouble; he gave 4616 Ross Parkway as his address. The officers knew that Boone had been involved in prior robberies. He had been charged with aggravated robbery of another Town & Country Market in Wichita on June 25, 1974, and released on bond.
At 2:00 a. m. that morning, the officers had driven by 4616 Ross Parkway on routine patrol. As they drove by, they observed defendant Richard Boone standing just inside the front door with his hand on the screen door. There were two people behind him whom the officers could not identify. They both had long hair, but could have been either men or women. The only car parked on the street was the tan Ford stationwagon. The officers drove around the block and passed by 4616 Ross Parkway again in two or three minutes. This time the house was dark and the tan car was gone.
The officers knew the robbery had been committed by two white individuals. The residence at 4616 Ross Parkway is in the same area of the city as the robbed store. The hour was late, and it was raining. New people were out.
On the basis of this evidence we have no hesitancy in holding that, in making the initial stop of the appellant, the officers had a reasonable suspicion that a crime had been committed by the occupant of the vehicle as required by K. S. A. 22-2402 (1). See State v. Jackson, supra and Annot., Law Enforcement Officer’s Authority, under Federal Constitution, to “Stop and Frisk” Person —Supreme Court Cases, 32 L. Ed. 2d 942 (1973).
Since the stop of appellant was proper under K. S. A. 22-2402 (1), the officer had a right to be next to the appellant’s car parked on a public street when he observed the gas mask and money in plain view through the window. Seeing these fruits and instrumentalities of the robbery gave the officers probable cause to justify a warrant-less arrest.
This court was presented with an analogous situation in State v. Morin, 217 Kan. 646, 538 P. 2d 684. There officers had reasonable suspicion that the occupant of a truck they stopped had committed a crime. After finding a gun in the pat down search and seizing it, the officers looked through a window of the vehicle and observed a brown plastic bag matching the description of one used by the robber. The court said “[i]t is clear to us that at this point the officers had probable cause to arrest the defendant . . .” Id. at 650, 538 P. 2d at 687.
The appellant contends that when the officers confronted him with guns drawn, his freedom to leave was restrained and he was under arrest. Since at that moment the officers had only a reasonable suspicion of his involvement in a crime, but not probable cause to arrest, the appellant asserts his arrest was illegal and all fruits of the subsequent search tainted. We do not agree.
When a police officer accosts an individual and restrains his freedom to walk away, he has “seized” that person. City of Garden City v. Mesa, supra. There can be a “seizure” of a person in the Fourth Amendment sense even where there is no formal arrest. Terry v. Ohio, supra.
“Arrest” as defined in the Kansas Code of Criminal Procedure contemplates more than the temporary restraint of a person by a law enforcement officer. Rather, it is the restraint of a person in order that he or she may be forthcoming to answer for the commission of a crime. See K. S. A. 22-2202 (3) (1975 Supp.) and K. S. A. 22-2202 (7) (1975 Supp.).
When Officers Meyers and Knard initially restrained the appellant, we believe their purpose was to temporarily detain him so as to investigate possible criminal behavior. Officer Meyers testified thait Boone was initially restrained before he went around the car and looked into the windows, but that “we didn’t place him under arrest at that time. . . .” It was only after the officers observed items which appeared to implicate the appellant in the robbery that he was handcuffed and read his rights. It was at that point that his restraint satisfied the statutory definition of arrest.
Our holding that his arrest was proper disposes of the only basis appellant advanced for suppressing the money taken from him at the police station.
The gas mask was properly seized by the arresting officers under the plain view doctrine. Objects falling in the plain view of an officer who has a right to be in the position to have that view are subject to seizure and may be introduced into evidence. State v. McMillin, 206 Kan. 3, 476 P. 2d 612. Such a view does not constitute a search even if it is nighttime and the object is seen in the light of a flashlight through a car window. State v. Karney, 208 Kan. 677, 494 P. 2d 1204; State v. Frizzell, 207 Kan. 393, 485 P. 2d 160; see State v. Garcia, 210 Kan. 806, 504 P. 2d 172.
Likewise, the money and paper bag were properly seized by the police laboratory investigator. In State v. Frizzell, supra, this court held:
“There is probable cause to search when there exist facts and circumstances sufficient to warrant a reasonable prudent man to believe that an automobile contains contraband or items which offend against the law.” (Syl. 3.)
In State v. Undorf, 210 Kan. 1, 7, 499 P. 2d 1105, we said:
“[I]n Chambers v. Maroney, [399 U. S. 42, 26 L. Ed. 2d 419, 90 S. Ct. 1975] the court made clear that the same knowledge providing probable cause for an arrest may also furnish probable cause for a search. Referring to Carroll v. United States, supra, the Court said (399 U. S. at 49):
“ ‘The Court also noted that the search of an auto on probable cause proceeds on a theory wholly different from that justifying the search incident to an arrest:
“ ‘ “The right to search and the validity of the seizure are not dependent on the right to arrest. They are dependent on the reasonable cause the seizing officer has for belief that the contents of the automobile offend against the law.” 267 U. S., at 158-159.’
“The upshot is that if there is probable cause to search a car such search need not be ‘incidental to’ or ‘contemporaneous with’ an arrest, but may be made wholly independently of any arrest at all.”
In the case at bar, the arresting officers had probable cause to believe the appellant had committed a crime and that the car he was driving contained fruits and instrumentalities of that crime. The possibility existed that the car might be moved or evidence removed; appellant’s yells had alerted occupants in the house that he was being arrested. We view the warrantless seizure of items in appellant’s car by the laboratory investigator shortly after the appellant was arrested as properly made in a search based on probable cause. See State v. Morin, supra, and cases cited therein.
The appellant’s second point on appeal is that it was prejudicial error for the district court, during the presentation of evidence pertaining to the offense charged in the second information, to admit into evidence a knife allegedly used in the offense charged in the first information and having no connection with the second offense.
Two separate informations charging the defendant with aggravated robberies on June 25, 1974, and on August 9, 1974, were consolidated for trial on the prosecutor’s motion which was neither opposed nor objected to by the defendant. No challenge as to propriety of consolidation is raised on appeal, and it appears to have been within the authority of the district court under K. S. A. 22-3202 and 3203. Both informations were tried to the same jury which returned separate verdicts for each offense. The state and the appellant presented their case and rested on the June 25 robbery and then repeated that procedure for the August 9 robbery. At oral argument we were advised that final arguments were made after both cases were submitted. There were two separate final arguments.
The June 25 robbery was committed with a knife; the August 9 robbery with a shotgun. During presentation of the state’s evidence for the June 25 robbery, a knife was admitted into evidence over defendant’s objection that there was insufficient foundation for its admission. This point is the main contention of error in appellant’s appeal from the conviction for the June 25 robbery and will not be discussed here. See State v. Boone, 220 Kan. 771, 556 P. 2d 880.
During the presentation of evidence for the August 9 robbery, the prosecutor asked the police laboratory investigator who searched the stationwagon to identify a knife he had found in the car. This knife was the one previously admitted in evidence for the June 25 robbery. Following a discussion by the court and counsel out of hearing of the jury, the officer was allowed to identify the knife and testify that he found it in the car’s glove compartment. The knife was then admitted into evidence in the August 9 robbery case on the court’s suggestion “so there won’t be any confusion about it as far as the record or the jury is concerned.” Counsel’s objection to the knife’s admission went essentially to lack of relevancy and materiality.
While we have no quarrel with the appellant that the knife was neither relevant nor material to the second robbery, it does not necessarily follow that the knife’s admission was reversible error. All the evidence against the appellant was presented at one trial to one jury. 24B CJS Criminal Law § 1915(14) (b) states:
“Error in admitting evidence without proper foundation or preliminary proof is cured by the subsequent introduction of the requisite predicate or preliminary proof.”
See Samuels v. United States, 397 F. 2d 31 (10th Cir. 1968); State v. Renneker, 75 Kan. 685, 90 P. 245.
Furthermore, error in admission of the knife, if any, could have been cured by proper instructions. P. I. K. Criminal 68.07 deals with verdict instruction for multiple counts. It indicates that each crime charged is a separate offense and the jury must decide each charge separately on the evidence and the law applicable to it, uninfluenced by their decision as to any other charge.
No instructions are included in the record on appeal, but we were advised by counsel at oral argument that separate instructions were given. Counsel “thought” an instruction was given to the effect that evidence of one case could not be considered in the other.
In State v. Omo, 199 Kan. 167, 172, 428 P. 2d 768, we said that where the instructions are not abstracted and where there is no contention to the contrary, this court must assume the instructions given were correct and that the jury was properly instructed as to how it should consider the evidence as to each separate offense charged.
It must be conceded that the second admission of the knife was potentially confusing to the jurors and potentially prejudicial. Nevertheless, under the rule of Omo, we must assume the jury was properly instructed on how it should consider the evidence, thereby reducing the prejudicial effect of any error. Consolidation in the instant case was unopposed by the appellant; he has failed to show how the second admission of the knife in the consolidated trial resulted in substantial prejudice requiring reversal.
The appellant’s third point on appeal is that it was prejudicial error to allow one of the arresting police officers to testify in rebuttal concerning a statement made by appellant in response to the officer’s question only a short time after appellant had been given his Miranda warnings and had stated he wanted to see his attorney.
The Miranda warnings were given by one officer immediately after he handcuffed appellant following discovery of the gas mask in the car. Appellant stated he wanted to see his lawyer. The two officers and appellant then got in the squad car and drove back to the scene of the robbery. While the three were in the squad car, one of the officers asked the appellant where he had gone when he left 4616 Ross Parkway at 2:00 a. m. that morning. Appellant answered the question saying he had taken a friend to a club. At trial, appellant testified that he had not been at 4616 Ross Parkway that morning until he arrived shortly after 3:00 a. m. The prosecution then put the officer on in rebuttal, and he testified as to appellant’s conflicting statement.
Appellant’s statement elicited after he stated he wanted to see his attorney would clearly not be admissible in the prosecution’s case in chief as substantive evidence to prove guilt or innocence. The procedural safeguards triggered by a request for an attorney which are mandated by Miranda were recently noted in Michigan v. Mosley, 423 U. S. 96, 46 L. Ed. 2d 313, 96 S. Ct. 321 (1975). After a request to see an attorney is made, all questioning must cease until an attorney is present. 46 L. Ed. 2d at 320, n. 7. In the instant case, no attempt was made by the prosecution to introduce the statement in its case in chief.
Evidence which is inadmissible in the case in chief because of noncompliance with Miranda requirements may, however, be used for impeachment under certain circumstances. Harris v. New York, 401 U. S. 222, 28 L. Ed. 2d 1, 91 S. Ct. 643 (1971), held that statements of a defendant obtained in violation of Miranda rules, so as to render them inadmissible to establish the guilt of the defendant, may be used for purposes of impeachment where (1) such statements are inconsistent with defendant’s trial testimony bearing directly on the crimes charged, and (2) defendant makes no claim that his statements were coerced or involuntary. See 5 Am. Jur. Trials, Excluding Illegally Obtained Evidence, § 32, p. 99 (1976 Supp.).
The state points to State v. Osbey, 213 Kan. 564, 517 P. 2d 141, and State v. Andrews, 218 Kan. 156, 542 P. 2d 325, which applied Harris and argues that appellant’s inconsistent statements were properly admitted in rebuttal. The underlying rationale of these cases was explained in State v. Osbey, supra:
"[T]he shield provided by Miranda [should] not be perverted into a license to use perjury by way of a defense, free from risk of confrontation with prior inconsistent utterances.” 213 Kan. at 574; 517 P. 2d at 149.
A recent United States Supreme Court decision bears directly on the case at bar. In Oregon v. Hass, 420 U. S. 714, 43 L. Ed. 2d 570, 95 S. Ct. 1215 (1975), the defendant also made a statement — after he was arrested, after he was given his Miranda warnings and after he requested an attorney — that was inconsistent with his testimony at trial. The Supreme Court could see no valid distinction in the application of the principles of Harris to that case and to Hass’ case. The police officer’s rebuttal testimony concerning the defendant’s inconsistent statement was ruled to be properly admissible for the sole purpose of impeaching the defendant’s trial testimony where (1) defendant’s testimony at his trial was made after he knew that the officer’s opposing statements had been ruled inadmissible for the prosecution’s case in chief, and (2) there is no evidence or suggestion that the defendant’s inculpatory statements given to the officer were involuntary or coerced.
The Court stated:
“The effect of inadmissibility in the Harris case and in this case is the same: inadmissibility would pervert the constitutional right into a right to falsify free from the embarrassment of inpeachment evidence from the defendant’s own mouth.
“One might concede that when proper Miranda warnings have been given, and the officer then continues his interrogation after the suspect asks for an attorney, the officer may be said to have little to lose and perhaps something to gain by way of possibly uncovering impeachment material. This speculative possibility, however, is even greater where the warnings are defective and the defect is not known to the officer. In any event, the balance was struck in Harris, and we are not disposed to change it now. If, in a given case, the officer’s conduct amounts to abuse, that case, like those involving coercion or duress, may be taken care of when it arises measured by the traditional standards for evaluating voluntariness and trustworthiness.” 420 U. S. at 723, 43 L. Ed. 2d at 578, 95 S. Ct. at 1221.
We are of the opinion that the officer’s conduct in the case at bar does not amount to abuse. There is no showing of coercion. As noted in Hass, “. . . the pressure on [the defendant] was no greater than that on any person in like custody or under inquiry by any investigating officer.” Id. Likewise, there is no showing the statement was involuntary. The officer asked a question and the appellant answered. In State v. Colin, 214 Kan. 193, 519 P. 2d 629, we stated that generally if the accused was not deprived of his free choice to admit, deny or refuse to answer, the statement may be considered voluntary. Therefore, we hold the appellant’s incon sistent statement was properly admitted for the purpose of impeachment.
The appellant’s final specification of error is that the trial court erred in refusing to give a requested instruction. This point is not well taken.
A defense witness, cross-examined about a prior conviction, seemed to express some confusion about thinking this conviction which occurred when he was 20 years old could or would be “cleared.” At the close of all the evidence, counsel for appellant made an oral request for an instruction on expungement of convictions because of the witness’s misunderstanding. The request was denied.
In State v. Reed, 213 Kan. 557, 562, 516 P. 2d 913, 918, we said:
“[A] request for an instruction is required to be in writing under K. S. A. 1972 Supp. 22-3414 (3). There is no statutory provision for an oral request for an instruction.’'
We would also note there was absolutely no evidence advanced that the witness’s prior conviction actually had been annulled. A person’s conviction is annulled under K. S. A. 21-4616 only after judicial inquiry and ruling. Only then may he state that he has never been convicted of such crime when he appears as a witness. See State v. Miller, 214 Kan. 538, 520 P. 2d 1248.
The judgment is affirmed.
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The opinion of the court was delivered by
Foth, C.:
Ahmad Al-Turck, a citizen of Iraq here as a student, was convicted of interference with parental custody and has appealed. He makes five contentions, four of which are without merit but one of which requires a reversal. That one is that under the undisputed facts, as disclosed by the state’s evidence, he could not be found guilty of the offense charged.
That offense was a violation of K. S. A. 21-3422:
“Interference with parental custody is leading, taking, carrying away, decoying or enticing away any child under the age of fourteen (14) years, with the intent to detain or conceal such child from its parent, guardian, or other person having the lawful charge of such child.”
The state’s evidence disclosed that during the summer of 1974, the defendant and his wife Diana were involved in a divorce proceeding in Wyandotte county. Her petition requested permanent custody of their daughter Amalede, but no temporary custody order was ever entered. Pending hearing the child remained with her mother, but defendant by oral agreement had unlimited visitation rights. On August 3, 1974, two days before the scheduled divorce hearing, defendant picked up the child on the pretense of taking her on a picnic, but instead boarded a plane and flew with her to his family home in Iraq. Based on this action defendant was charged with “carrying away” the child with intent to conceal her from her mother, who was alleged to be a parent having “lawful charge” of the child.
On August 6, 1974, a final divorce decree was entered giving Diana custody. Two to three weeks later defendant informed Diana of their whereabouts. Defendant later returned to this country and was arrested. Later still the child was returned to the custody of her mother.
The determinative issue is whether the mother had such “lawful charge” of the child as to make the father s exercise of custody a violation of the statute. We hold she did not.
It is the established law of this state that in the absence of a court order both parents have an equal right to the custody of their minor children. Kan. Const., Art. 15, § 6; K. S. A. 1975 Supp. 59-3002 (3) and 59-3003; Allison v. Allison, 188 Kan. 593, 597, 363 P. 2d 795.
A temporary custody order under K. S. A. 60-1607 (c), can cut off the right of a parent (In re Peck, 66 Kan. 693, 72 Pac. 265) but, as previously noted, no order was issued here. The mere filing of the divorce petition requesting custody was not in itself sufficient to extinguish the father’s rights. See cases collected at 77 A. L. R. 317 et seq., and especially State v. Dewey, 155 Ia. 469, 136 N. W. 533, where it was held that neither the father nor his assistant could be guilty of kidnapping a child from its mother, who had begun divorce proceedings, even though they obtained custody from her by falsely representing that the assistant was an officer of the court having a court order for such custody.
The issue presented here was squarely decided by this court in a case not cited by either party, State v. Angel, 42 Kan. 216, 21 Pac. 1075. There the defendant was convicted of kidnapping for aiding a mother in taking her daughter away from her husband, the child’s father, in violation of G. S. 1868, ch. 31, § 47:
“Every person who shall maliciously, forcibly or fraudulently lead, take or carry away, or decoy or entice away, any child under the age of twelve years, with intent to detain or conceal such child from its parent, guardian or other person having the lawful charge of such child, shall, upon conviction, be punished by confinement and hard labor not exceeding-five years, or imprisonment in the county jail not less than six months.”
The statute, it will be seen, contains elements substantially identical to those in our present 21-3422, i.e., a taking of the child with “intent to detain or conceal such child from its parent, guardian, or other person having the lawful charge of such child.” In reversing the conviction this court held:
“. . . She took with her to the Indian Territory her child, and the child has continued to be in her custody and under her control. She is its mother. The father and mother are the natural guardians of the persons of their minor children, and each parent equally so with the other. (Const., art. 15, § 6; The State v. Jones, 16 Kan. 608.)
“As Mrs. Willis, the mother of the child, had the equal right with her husband, the father, to the actual care and control of the child, it is clear that she could not be punished under the provisions of said § 47, for taking and carrying the child away from the father. If it be true that James Angel, the defendant, assisted her to leave her husband and in so doing assisted her in taking her child, he cannot be convicted under § 47, because he only assisted the mother of the child, who had the same right to the care and control of the child as the father. The mother had the lawful charge of the child all of the time, and neither the mother nor Angel is guilty of any criminal violation of said § 47.” (Id. at 222-3.)
So here, there being no court order the defendant had a right to the custody of his child equal to that of the mother, and the exercise of that right could not make him subject to a criminal charge. The conviction is reversed, and since “it appears that no crime has been committed” (K. S. A. 22-3607), the defendant is discharged.
APPROVED BY THE COURT.
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The opinion of the court was delivered by
Miller, J.:
This is an action for damages arising from the alleged failure of the defendants, University of Kansas Medical Center and the Board of Regents of the University of Kansas Medical Center, to provide the plaintiff, Rose Malone, with complete, competent, necessary, and authorized medical treatment. The trial court sustained defendants’ motion to dismiss and plaintiffs appeal. The principal issue here is whether the amended petition states a cause of action in tort and not in contract.
The plaintiffs, husband and wife, filed an original petition drawn in eight counts on August 2, 1974. It alleged that Rose Malone presented herself at the Medical Center for examination, diagnosis, and treatment on August 22, 1973. She was examined by three physicians, one of whom gave her a prescription for an alleged infection and instructed her to return home. On the following day she became ill, suffered intense pain, and was returned to the Medical Center by ambulance. Her uterus had ruptured, causing the death of the fetus she was carrying. A total abdominal hys terectomy was performed without her consent. The eight counts were based upon claims of negligence and were variously against four physicians, the Medical Center, and the Board of Regents.
The Medical Center and the Board of Regents moved to dismiss on the grounds, inter alia, that the Medical Center and the Board of Regents were immune from liability and suit for negligence under the provisions of K. S. A. 46-901. Plaintiffs filed motion for leave to amend the petition which was granted, and an amended petition was filed November 4, 1974. The first four counts of the amended petition claimed damages for negligence and were against physicians individually. These counts were later dismissed with prejudice on plaintiffs’ motion.
Counts 5 and 6 concern the remaining defendants, the Medical Center and the Board of Regents. Both counts include by reference all of the allegations of counts 1, 2, 3, and 4 which are pertinent. Count 5 alleges that when Rose Malone presented herself for treatment on August 22, she entered into an “express contract” with the Medical Center, by the terms of which the Center agreed to provide “complete, competent, and necessary medical treatment” for her. The petition then alleges that the Medical Center breached that contract in that it failed to provide the medical treatment promised but instead released her, gave her a prescription for an alleged infection and sent her home. Count 6 alleges that when Rose Malone presented herself for treatment on August 23, 1973, both plaintiffs entered into an express contract with the Medical Center by the terms of which the Medical Center agreed to provide “only necessary, competent and authorized medical treatment” for Mrs. Malone. The Center, it is alleged, breached this agreement by (a) “failing to provide competent physicians and surgeons to treat” Rose, and (b) “performing a hysterectomy on (Rose) without her informed consent.”
The Medical Center and the Board of Regents again moved to dismiss for the reason that the amended petition fails to state a “cause of action” upon which relief can be granted. Defendants alleged that Rose was not a patient on August 22, 1973; that the mere unsubstantiated allegation that a contract has been created is not sufficient to substantiate a “cause of action” for breach of contract; and that although the amended petition is couched in terms of the breach of an express contract, it actually presents a “cause of action” the gravamen of which is in tort, for which the defendants are not liable under K. S. A. 46-901.
The motion was argued and counsel presented briefs to the court. On May 14, 1975, the court wrote to counsel, disclosing its finding that the motion to dismiss should be sustained for the reason that “it would appear that this is an action in tort and not one in contract, and the mere endeavor to couch a petition in contract based upon facts in tort is not permissible.” The journal entry, which followed, recites that the court finds that “plaintiffs’ action is one in tort and not in contract and that the defendants’ motion to dismiss should be granted.”
We note that the court ignored other grounds advanced in support of the motion as well it should. We no longer have the requirement in our law that a petition set forth a “cause of action” with particularity and specificity. The petition merely need set forth “a short and plain statement of tire claim showing that the pleader is entitled to relief,” and a demand for relief. K. S. A. 60-208. Even a written contract need not be recited at length in the petition; it is sufficient to reasonably identify it and state the substance thereof. K. S. A. 60-209 (h). If the opposing party wishes further information, various inexpensive and efficacious discovery procedures are provided. We note that no discovery has been conducted in this case. The only affidavits submitted with the motion state that Rose Malone was not treated on August 22, 1973, and explain that she was seen twice on August 23, first at 2 o’clock and again at 7 o’clock that morning. Whether she was seen on consecutive days or twice on the same date is immaterial at this stage of the proceeding.
Two points were designated and are argued on appeal. These are (1) that K. S. A. 46-901 is unconstitutional and therefor plaintiffs’ lawsuit may be maintained whether it sounds in tort or in contract; and (2) that the 'trial court erred in finding that the first amended petition sounds in tort and not in contract.
There are two reasons why the constitutional argument must fail. This court’s recent exhaustive analysis of the question of governmental immunity and its constitutionality culminated in Justice Schroeder’s opinion on rehearing in Brown v. Wichita State University, 219 Kan. 2, 547 P. 2d 1015, wherein we held that K. S. A. 46-901 is not unconstitutional. We adhere to that determination. The second reason why the argument must fail is that it is not properly before us. Plaintiffs did not bring the question of the constitutionality of K. S. A. 46-901 into issue until the filing of their brief in this court. They did not raise that issue in the trial court. In State v. Estes, 216 Kan. 382, 532 P. 2d 1283, we said:
“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.” (Syl. 3.)
And in Vaughn v. Murray, 214 Kan. 456, 521 P. 2d 262, we held that:
“A constitutional challenge to a legislative act will not be entertained on appeal to this court unless the challenge has been alleged in the pleadings or presented to the trial court, absent some compelling state interest.” (Syl. 4.)
No such compelling state interest here appears.
We turn now to the second issue presented — whether the amended petition sounds in tort or in contract. If the action is a tort action based on negligence, or if it is an action on an implied contract, then the action is barred by K. S. A. 46-901. That statute, however, does not bar actions on express contracts.
The nature of a claim — whether it sounds in tort or contract — is determined from the pleadings (Crabb v. Swindler, Administratix, 184 Kan. 501, 507, 337 P. 2d 986, and cases cited) and from the real nature and substance of the facts therein alleged. 1 C. J. S. Actions, § 35, p>. 1076. The amended petition states that an express contract was entered into. It sets out generally the terms thereof, and then states in what manner plaintiffs claim the contract was breached.
A breach of contract may be said to be a material failure of performance of a duty arising under or imposed by agreement. A tort, on the other hand, is a violation of a duty imposed by law, a wrong independent of contract. Torts can, of course, be committed by parties to a contract. The question to be determined here is whether the actions or omissions complained of constitute a violation of duties imposed by law, or of duties arising by virtue of the alleged express agreement between the parties.
Physicians, as well as hospitals, may enter into express contracts by which they bind themselves to warrant the success of treatment, or to otherwise obligate themselves above and beyond their ordinary duties. Such contracts may form the basis for breach of contract actions. Noel v. Proud, 189 Kan. 6, 367 P. 2d 61, is illustrative. The claim there was that the physician breached an express warranty, a special contract for a particular result. Such is not the situation here.
Certain duties and obligations are imposed upon physicians and hospitals by law. Breach of such duty by a physician is malpractice, and an action for damages for malpractice is one in tort, even though there was a contract, express or implied, for employment. Noel v. Proud, supra, p. 11. Similarly an action for damages against a hospital for negligence, i. e., for breach of duties imposed by law, sounds in tort. This is true though there may be a contract between the parties.
In Yeager v. National Cooperative Refinery Ass’n, 205 Kan. 504, 509, 470 P. 2d 797, we quoted the rule from 52 Am. Jur., Torts, § 26, p. 379:
“Where a contractual relationship exists between persons and at the same time a duty is imposed by or arises out of the circumstances surrounding or attending the transaction, the breach of the duty is a tort. . . .”
In Tefft v. Wilcox, 6 Kan. 46, 61, this court held that a physician is obligated to his patient under the law to use reasonable and ordinary care and diligence in the treatment of cases he undertakes, to use his best judgment, and to exercise that reasonable degree of learning, skill, and experience which is ordinarily possessed by other physicians in the same or similar locations. We have continued to impose those duties upon physicians. See PIK, Civil, 15.01 and cases there cited. A physician also has the duty to make a reasonable disclosure to the patient of pertinent facts within his knowledge relating to proposed treatment, in order that the patient may intelligently consent to or refuse the treatment. Natanson v. Kline, 186 Kan. 393, 350 P. 2d 1093.
Hospitals owe a duty to their patients to exercise reasonable care. This is such care, skill and diligence as the known physical and mental condition of the patient may require, and it is that degree of care used by other hospitals in the community or similar communities under like circumstances. See PIK, Civil, 15.02, and cases therein cited.
The Washington Supreme Court formulated a test to be used in determining whether a pleading sets up a case in contract or in tort. In Yeager v. Dunnavan, 26 Wn. 2d 559, 174 P. 2d 755, it said:
. When an act complained of is a breach of specific terms of the contract, without any reference to the legal duties imposed by law upon the relationship created thereby, the action is in contract, but where there is a contract for services which places the parties in such a relation to each other that, in attempting to perform the promised service, a duty imposed by law ai a result of the contractual relationship between the parties is violated through an act which incidentally prevents the performance of the contract, then the gravamen of the action is a breach of the legal duty, and not of the contract itself. . . .” (p.562.)
The wrongs alleged by the plaintiffs were that the Medical Center failed to provide necessary, complete, competent, and authorized treatment for Rose Malone. It caused her to be released on the occasion of her first visit, sending her home with a prescription when she should have been retained in the hospital; it failed to provide competent physicians to treat her; and it caused to be performed a hysterectomy without securing Rose’s informed consent.
The petition alleges that the Medical Center undertook to perform the contract. Rose was seen by physicians and a prescription was written and advice given on the first occasion, and she was admitted and surgery was performed on her second visit. What plaintiffs are complaining about is that the treatment provided was negligent — all of the needed treatment was not furnished, and that which was furnished was incomplete, incompetent, and unauthorized. In other words, the hospital and the physicians failed to exercise that reasonable care, skill, and diligence which the law requires of hospitals and physicians — regardless of any express contract therefor between the parties.
Clearly the action sounds in tort, and under that theory the defendants are immune from liability. The general rule is that a plaintiff will not be permitted to characterize a tort action as one in contract in order to avoid the bar of the statute of limitations or governmental immunity. Travis v. Bishoff, 143 Kan. 283, 54 P. 2d 955; Talbot v. Waterbury Hospital Corp., 20 Conn. Sup. 149, 164 A. 2d 162 (1960); Billings v. Sisters of Mercy of Idaho, 86 Idaho 485, 389 P. 2d 224; Mamunes v. Williamsburgh Gen. Hosp., 28 App. Div. 2d 998, 283 N. Y. S. 2d 457; and, see, Yeager v. National Cooperative Refinery Ass’n, supra.
We conclude that the district court was correct in sustaining the motion to dismiss. Accordingly, the judgment is affirmed.
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The opinion of the court was delivered by
Prager, J.:
This is a direct appeal in a criminal action in which the defendant-appellant, Robert W. Aldershof, was convicted of the offense of robbery. (K. S. A. 21-3426, Weeks 1974.) The facts pertaining to the offense were virtually undisputed and were essentially as follows: On the evening of August 5, 1974, the defendant Aldershof along with two friends, Eddy Kennedy and Ron Gudenkauf, went to the Bear Tree Inn, a drinking establishment in Wichita. During the course of the evening all three men imbibed heavily. While at the tavern the defendant approached a friend, James Truesdell, and indicated that he was short of money and would like to borrow some. Truesdell replied that he was broke and could not make a loan. Truesdell later told a Wichita police officer that the defendant had told him that he was going to get some by any means possible. During the course of the evening two young women, Christy Razook and her sister-in-law, Debbie Razook, arrived at the tavern, sat down at a booth, and each ordered a drink. Shortly thereafter there was a power failure which caused the lights to go out. The only light in the tavern was that from one flashlight. During the outage three men came over to the table occupied by the Razook women without invitation and attempted to make conversation. Debbie asked the three men to leave, saying that they were just there to drink a beer and did not want any hassle. Because of the poor lighting the women were unable to see the faces of the three men. The three men left.
At about this time Debbie asked Christy Razook to watch her purse while she went to the restroom. Debbie’s purse was left on the table directly across from Christy. The lights were still out and Debbie had a difficult time finding her way to the restroom. While she was gone, an unidentified man came to the booth and snatched Debbie’s purse from the table and Christy’s purse from her lap. The man quickly left the tavern. Christy ran after him. Michael Dahlem, a friend of the defendant, testified that he saw defendant heading for the door with Christy right behind him. Christy Razook testified that outside the tavern in the parking lot she managed to grab the man on the back of his shirt. He turned and struck her in the eye with his hand. The man then got into Kennedy’s vehicle which left the scene. Kennedy testified that he and the defendant and Gudenkauf proceeded to another tavern, stayed there awhile, and then the defendant Aldershof was taken home. Following this Kennedy and Gudenkauf went to Derby, Kansas, where Kennedy’s vehicle was involved in an accident. The vehicle was impounded and searched for objects. The police found Debbie’s checkbook in the jeep. The checkbook had been in her purse at the time it was stolen earlier that evening. The following day the two purses were recovered at the defendant’s house. Defendant was later charged with robbery. Defendant was tried and convicted by a jury and has appealed to this court.
The defendant has raised seven points on this appeal. Points one through four essentially present the same basic issue: Whether there was substantial evidence to support the jury’s verdict of guilty of robbery. The defendant contends in substance that since the undisputed evidence shows that no force or threat was used in the taking of the purses and that the purses were taken by stealth, the crime was at most theft, not robbery. The defendant maintains that any force or violence in the case came after the purses had already been stolen when the struggle between Christy Razook and the thief occurred in the parking lot for recovery of the purses. It is the position of the state that to prove robbery it is sufficient if the force used is contemporaneous with the taking of the property. Here, the prosecutor argues, the taking was still in progress when the struggle occurred between the victim and her assailant in the parking lot. Essentially it is the state’s position that the taking of the two purses in the present case was still underway when the violence occurred. Hence the defendant was guilty of robbery.
The contentions of the parties require us to examine carefully the inherent nature of robbery as distinguished from theft or larceny. K. S. A. 21-3426 defines robbery as “the taking of property from the person or presence of another by threat of bodily harm to his person or the person of another or by force.” To establish the charge of robbery the state must prove that there was a taking of property from the person or presence of the victim and that such taking was either by threat of bodily harm or by force. The crime of theft is provided for in K. S. A. 21-3701. Section (a) of 21-3701 states in substance that theft is the obtaining or exerting of unauthorized control over property with intent to deprive the owner permanently of the possession, use, or benefit of his property. This state has long recognized that robbery and theft (formerly termed larceny) are kindred crimes. In State v. Segermond, 40 Kan. 107, 108, 19 Pac. 370, this court accepted the definition of robbery as being “larceny committed by violence of the person of one put in fear.” In Guffey v. Casualty Co., 109 Kan. 61, 197 Pac. 1098, Syl. 2, the court held that: “Robbery includes larceny and may be deemed forcible larceny, and in order to constitute it there must be an intent to deprive the owner of the property taken, not temporarily, but permanently.” In State v. Russell, 217 Kan. 481, 536 P. 2d 1392, we held that robbery and theft are kindred crimes and the elements constituting theft are necessarily included in robbery.
For centuries the rule followed in England and later in the United States has been that in order for the defendant to be guilty of robbery it is essential that the prosecution prove that the defendant took the property by means of force or violence or by putting the victim in fear. The force or intimidation employed is the gist of the offense. Furthermore, the general rule is that the violence or intimidation must precede or be concomitant or contemporaneous with the taking. Violence or intimidation by the thief sub sequent to the taking will not render the act robbery. In 4 Bl. Comm. 243, Blackstone, to emphasize that for robbery the larceny must be accomplished by violence or intimidation, said:
“. . . the taking must be by force, or a previous putting in fear, which makes the violation of the person more atrocious than privately stealing . . . For if one privately steals sixpence from the person of another, and afterward keeps it by putting him in fear, this is no robbery, for the fear is subsequent. . . .”
The general rule is recognized with many oases cited in 77 C. J. S. Robbery § 11 and 67 Am Jur 2d, Robbery, § 26. A comprehensive annotation on the subject may be found in 58 A. L. R. 656.
In State v. Miller, 53 Kan. 324, 36 Pac. 751, this court stated the general rule in Syl. 1 in the following language:
“To constitute the crime of robbery by forcibly taking money from the person of its owner, it is not necessary that violence to the person of the owner should precede the taking of the money; it is sufficient if it be contemporaneous with the taking.”
In Miller the factual circumstances were stated in the opinion to be as follows:
“ ‘That on the evening of the 26th day of August, 1893, the defendant came into the laundry of the complaining witness, at about 10 o’clock at night, to get a shirt he had left there, and laid the check for the shirt down on the counter, which the complaining witness took up, and got the shirt, and laid it on the counter; that the defendant then took out a quarter and laid it on the counter; that the complaining witness took the quarter and put it in the money drawer, and took out 5 cents in change, and laid it on the counter; that the defendant then reached over the counter and grabbed the money of the complaining witness in the drawer; that thereupon the complaining witness caught his hand containing the money, and then the defendant said, “Let go of me, you son of a bitch;” and the defendant then cut the complaining witness on the hand with a knife; that the complaining witness then let go of him, and the defendant ran to get out of the door; that the complaining witness ran around the counter and caught the defendant by the coat as he went out of the door, and then the defendant turned and cut the complaining witness with a knife across here [the complaining witness indicating his abdomen]; that the complaining witness let go of him, and that the defendant then ran down the alley with the money.’ ” (p. 325.)
The jury convicted the defendant of robbery and the conviction was affirmed. On appeal the defendant argued that he was at most guilty of larceny, not robbery, because the violence used by the defendant was merely for the purpose of breaking away from the complaining witness, and that, if the defendant took the money, he had it in his possession before any struggle took place. This court rejected the contention stating that the violence to the person and the taking may be contemporaneous. The court, however, pointed out in the opinion that they were not inclined to question the correctness of those cases which hold that robbery is not committed where the thief gains peaceable possession of the property, and uses no violence except to resist arrest or to effect his escape. In Miller the court concluded from the statement of facts contained in the bill of exceptions that it could not say as a matter of law that the defendant had obtained full possession of the money from the victim before using violence to the victim since it did not appear that the defendant had withdrawn his hand from the cash drawer. The court further recognized that nice questions may and do arise as to just when the possession of the owner of articles not attached to his person, but under his immediate charge and control, is divested, and it may well be doubted whether a thief can be said to have taken peaceable possession of money or other thing of value in the presence of the owner, when the taking is instantly resisted by the owner, before the thief is able to remove it from his premises or from his immediate presence. Under the factual circumstances presented in Miller the court concluded that the instructions given by the trial court were correct in that they fairly required the jury to find that the defendant must have first gained possession of the money taken out from the drawer by violence to the person of the prosecuting witness.
In Wharton’s Criminal Law, 12th Ed., Robbery, § 559, the rule is stated that when the defendant is able to take possession of the property without the use of force or fear but then employs force or fear in order to keep the property or to effect his escape, it is generally held that his offense is not robbery. The author points out that the conflict in the decisions of some states arises because of the uncertainty as to when the taking is completed. Some cases have held that the snatching of property from the presence of an owner or his agent and a use of force or intimidation in carrying it away constitutes robbery, usually on the theory that the taking was not effected until the property was carried away, and any violence used in making an escape after the snatching was in effect violence in the taking. It is suggested that the problem raised by these cases has been met in some jurisdictions by statutes which define robbery so as to include the use of force to resist the retaking of the property.
California has adopted a minority position that any force used prior to the escape of the robber to a place of temporary safety elevates the crime from theft to robbery. (People v. Anderson, 64 C. 2d 633, 51 Cal. Rptr. 238, 414 P. 2d 366; People v. Laursen, 8 C. 3d 192, 104 Cal. Rptr. 425, 501 P. 2d 1145; People v. Carroll, 1 C. 3d 581, 83 Cal. Rptr. 176, 463 P. 2d 400; People v. Milan, 9 C. 3d 185, 107 Cal. Rptr. 68, 507 P. 2d 956.) Recent cases from other jurisdictions hold that the element of force or intimidation is an essential ingredient of the offense of robbery, and no violence or excitation of fear resorted to merely for the purpose of retaining possession already acquired, or to effect escape, will, in point of time, supply that element. (Mason v. Commonwealth, 200 Va. 253, 105 S. E. 2d 149; Hicks v. State, 232 Ga. 393, 207 S. E. 2d 30; Gray v. State, 10 Md. App. 478, 271 A. 2d 390; State v. Adams, [Mo.] 406 S. W. 2d 608.) Illinois has taken the position that to sustain a conviction for robbery the force or the threat of force must precede or be contemporaneous with the taking of the property. Nevertheless, although the taking of the property may be peaceful, the departure with the property may be forceful and thus constitute robbery. (People v. Heller, 131 Ill. App. 2d 799, 267 N. E. 2d 685.) In Heller the court held that the use of a dangerous weapon at any point of a robbery, so long as it can reasonably be said to be part of a single occurrence or incident — or put another way, a part of the “res gestae of the crime” — will constitute armed robbery.
We are inclined to follow the general rule recognized in State v. Miller, supra, that to constitute the crime of robbery by forcibly taking money from the person of its owner, it .is necessary that the violence to the owner must either precede or be contemporaneous with the taking of the property and robbery is not committed where the thief has gained peaceable possession of the property and uses no violence except to resist arrest or to effect his escape. We believe that the test should be whether or not the taking of the property has been completed at the time the force or threat is used by the defendant. This must of necessity be determined from the factual circumstances presented in the particular case before the court.
We have concluded on the basis of the factual circumstances shown in the record now before us that the taking of the property had been completed when the thief snatched the purses and left the premises of the tavern. Beyond question the person who took the purses had obtained control over the purses with the intent to deprive the owner permanently of their possession. As pointed out in State v. Knowles, 209 Kan. 676, 678, 498 P. 2d 40, theft under our present statute, unlike “larceny” under the old statute, requires no asportation to complete the crime. All that is required is the unauthorized control of the property, coupled with the intent to deprive the owner permanently of his possession. When the thief left the tavern with the purses under his control, in our judgment the taking had been completed and any violence thereafter used by the thief in an attempt to prevent the ownér from regaining possession of the same could not convert the theft into a robbery, although it may well have been the basis for a charge of battery under K. S. A. 21-3412. In reaching this conclusion we have noted the comments of the trial judge at the time of the hearing on defendant’s motion for a new trial. He stated on the record as follows:
“. . . There was no weapon in evidence that was used and the only force was after the purse was taken when the little girl testified she’d tried to apprehend the person that took her purse and got knocked down. But there was no force at the time of the alleged robbery. . . .”
K. S. A. 21-3426 declares robbery to be a class C felony. It contemplates that the defendant have such a malignancy of mind as to cause him intentionally and willfully to take property from the person or presence of another by force or threat of bodily harm. In our judgment the offense of robbery should not be extended to situations where a purse snatcher grabs a purse without violence or injury to the person of the owner, leaves the scene, and then later uses his fist to effect his escape. Here the person who snatched the purses was a sneak thief. He cannot properly be placed in the category of a robber or a highwayman. Since the jury found the defendant guilty of robbery, the case must be reversed and remanded to the trial court with instructions to grant the defendant a new trial. At the close of the state’s case the trial court should have withdrawn the charge of robbery from the jury and submitted to the jury the issue of defendant’s guilt or innocence of the lesser included offense of theft under K. S. A. 21-3701.
The defendant’s fifth point on the appeal is that the trial court erred in failing to declare a mistrial because the state repeatedly brought before the jury hearsay evidence. The trial court in each instance sustained the defendant’s objection and excluded the evidence from the jury’s consideration. Since a new trial will be had in this case, we do not deem it necessary to consider this point further. Suffice it to say, we have confidence that the trial court will take care of these matters on the retrial of this case should they arise.
The defendant’s sixth point concerns the trial court’s giving to the jury over objection an instruction on circumstantial evidence. We have stated in our recent decisions that an instruction on circumstantial evidence should not be given. (State v. Wilkins, 215 Kan. 145, 523 P. 2d 728.) Since the defendant has been granted a new trial, we assume that the trial judge will follow the law when a new trial is had.
The defendant’s final point is that the trial court erred in not giving an instruction on the lesser included offense of theft. In view of our disposition of the case a discussion of this point is not warranted.
For the reasons set forth above the judgment of the district court is reversed and remanded with directions to grant the defendant a new trial on the lesser included offense of theft in accordance with the views expressed in this opinion.
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The opinion of the court was delivered by
Miller, J.:
Herbert Ray Jones took this appeal from his conviction of murder in the first degree. A codefendant, George Bright, was convicted of murder in the second degree, and that judgment was affirmed by this court. State v. Bright, 218 Kan. 476, 543 P. 2d 928.
The jury returned its verdict finding Herbert Ray Jones guilty of murder in the first degree on October 23, 1974. A motion for new trial was argued and overruled on October 31, 1974, on which date Jones was sentenced to life imprisonment by the trial court. Notice of appeal was filed on November 19, 1974, and thereafter the record and briefs were filed and the appeal was docketed in this court. The last brief was filed February 19, 1976. The matter was then set for oral argument on our May calendar.
Following oral argument we were advised that Herbert Ray Jones died on March 19, 1976 while serving the life sentence in the Kansas State Penitentiary. Our first consideration must be the effect, if any, of his death upon this appeal.
Many of the courts which have considered the matter have reached the conclusion that the death of a defendant during the pendency of his appeal from the conviction of a criminal offense abates the appeal and all proceedings had in the prosecution from its inception. Durham v. United States, 401 U. S. 481, 28 L. Ed. 2d 200, 91 S. Ct. 858; Crooker v. United States, 325 F. 2d 318 (8th Cir.); annotations in 83 ALR 2d 864 and 9 ALR 3d 462, 496. And, see, 24A C. J. S. Criminal Law § 1702, p. 3, and 21 Am Jur 2d, Criminal Law, § 608, p. 559. Our own cases have held that the death of a defendant pending appeal does not abate the judgment for costs, and this court has twice reviewed criminal proceedings after the death of the defendant-appellant, in order to determine the liability of the decedent’s estate for costs of prosecution. State v. Fisher, Adm'r., 37 Kan. 404, 15 Pac. 606; State v. Ellvin, 51 Kan. 784, 33 Pac. 547. Other courts have held that when the defendant dies following conviction and pending appeal, the appeal may be fully reviewed and decided. We find persuasive the following language from Commonwealth v. Walker, Appellant, 447 Pa. 146, 148 (Footnote), 288 A. 2d 741, 742:
“. . . We . . . [believe] • • • that it is in the interest of both a defendant’s estate and society that any challenge initiated by a defendant to the regularity or constitutionality of a criminal proceeding be fully reviewed and decided by the appellate process.”
A defendant’s conviction is at this stage in midair. The judgment of conviction is not final due to the pendency of an appeal. While death moots the sentence, renders impossible a new trial, and abates any fine imposed, the matter of costs remains. The state and the defendant (not to mention his family) have endured the strain, the tribulation and the expense of trial and appeal. Oftentimes rights other than those of an individual defendant are involved. The right to inherit, or to take by will or otherwise, may be affected. K. S. A. 1975 Supp. 59-513. The family of the defendant and the public have an interest in the final determination of a criminal case. We conclude, under the circumstances of this appeal, that this proceeding should be adjudicated upon the merits.
Four points are raised on this appeal: that the court erred first, in admitting into evidence a written statement taken from the defendant by law enforcement officers in the absence of his attorney; second, in failing to grant defendant’s motion for discharge for violation of his right to a speedy trial; third, in refusing to instruct on lesser included offenses; and fourth, in refusing to grant his motion for a mistrial on the ground that he was kept handcuffed all of one afternoon before the jury, without provocation.
Defendant’s present counsel, Robert Foster, was retained on the day of defendant’s arrest. On the following morning at approximately 7 o’clock a. m., the defendant stopped a jailer and informed him that he, Jones, would like to make a statement to the detectives. The jailer relayed this information to the detective bureau and later the same morning the defendant was transported to the detective bureau for questioning. Detective Al June, who conducted the interview, was aware that defendant was represented by counsel, and that he had previously refused to make any statement. At the commencement of the interview Detective June advised the defendant of his Miranda rights, including his “right to talk to a lawyer for advice before we ask you any questions, and to have him with you during questioning” and Detective June ascertained that the defendant fully understood his rights. The defendant signed a form indicating that he had been advised of his rights and that he understood them. At this point defendant stated that he did not then need his attorney, Mr. Foster. He wanted to go ahead and make a statement. The statement, exculpatory in nature and implicating his codefendant, George Bright, was then given. While the statement was in the process of being transcribed by a court reporter, defendant stated that he wished to consult with his attorney before signing the statement. He was not questioned further, and he did not sign the statement.
As we have noted, the defendant initiated the contact with the detectives which led to the statement. He was fully and repeatedly advised of his rights, including his right to counsel and to have his attorney present during questioning. The trial court held a Jackson v. Denno hearing, out of the presence of the jury, after which it concluded, “the . . . evidence before me was that he asked to make the statement; that he said he didn’t want his attorney there; and that he wanted to make a statement. I think at least it’s a submissible question to the jury. . . .” The statement was subsequently submitted to the jury, and no question is raised here relating to the court’s instructions dealing with the statement.
The defendant testified at the trial substantially in accordance with the statement.
The right to have counsel present during police interrogation is one of those rights which the defendant is entitled to waive. State v. Barry, 216 Kan. 609, 533 P. 2d 1308; State v. Melton, 207 Kan. 700, 486 P. 2d 1361; Miranda v. Arizona, 384 U. S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602. Since a defendant has a constitutional right to proceed without counsel even during the trial of his case, where he voluntarily and intelligently elects to do so (Faretta v. California, 422 U. S. 806, 45 L. Ed. 2d 562, 95 S. Ct. 2525 [1975]), he certainly may waive his right to counsel during pre-indictment in-custody interrogation. The trial court here conducted an extensive hearing on the voluntariness of the statement prior to its admission. The trial court’s finding of voluntariness is binding upon us where, as here, it is supported by substantial competent evidence. State v. Barry, supra; State v. Brown, 217 Kan. 595, 601, 538 P. 2d 631; State v. Creekmore, 208 Kan. 933, 495 P. 2d 96. The evidence here clearly and fully supports the trial court’s finding. We find no error in the admission of the statement.
The second point raised is that the trial court erred in overruling defendant’s motion for discharge for the state’s failure to comply with K. S. A. 22-3402 (1) which guarantees a defendant’s constitutional right to a speedy trial. That statute provides that a person incarcerated shall be brought to trial within ninety days after arraignment or be discharged from custody. K. S. A. 22-3402 (3) (d), however, provides that the trial court may, in its discretion, grant a continuance for up to thirty days in the event that it finds that there is insufficient time within which to commence the trial of a case within the ninety-day period following arraignment. The trial court here originally scheduled the trial for October 7, 1974, well within the ninety-day statutory requirement. As a result of a crowded docket, the trial court sua sponte continued this case for thirty days. The continuance was timely. Trial commenced within the thirty-day extension, and approximately 94 days after arraignment. Defendant demonstrates no prejudice, and we discern none. Under this record it was not error for the court to deny defendant’s morion for discharge.
The third claim of error is that the trial court erred in failing to instruct on lesser included offenses. The court instructed on murder in the first and second degrees, and defendant did hot obj'ect to the instructions given nor did he request the giving of any additional instructions. The trial court’s duty to instruct on a lesser included offense arises only where it is clearly required by the evidence and where the j'ury might have convicted the accused of a lesser crime had it been instructed with respect thereto. State v. James, 216 Kan. 235, 238, 531 P. 2d 70 (Syl. 4). The trial court has a duty to instruct on lesser crimes of which the accused might be found guilty under the information and upon the evidence adduced, even though such instructions have not been requested or have been objected to. K. S. A. 21-3107 (3). Such instructions, however, must be based “upon evidence adduced”, and if there is no evidence presented that could lead to a conviction on a lesser offense, no such instruction is necessary. State v. Ponds and Garrett, 218 Kan. 416, 421, 543 P. 2d 967.
Here the trial court reviewed the evidence and instructed upon murder in the first and second degrees. We have reviewed the record and conclude that there was no evidence upon which a conviction of a lesser degree of homicide could rest. There was therefore no occasion for an instruction on the lesser included offenses.
The final contention is that the trial court erred in refusing to grant a defense motion for a mistrial on the grounds that defendant was kept handcuffed at the trial in the presence of the jury. The record discloses that this occurred on the first day of the trial. His handcuffs were not removed when he was returned to the courtroom for the afternoon session. At the conclusion of the proceeding that afternoon, and after the jury had been excused for the day, defense counsel moved for a mistrial on that ground. The trial court expressed surprise that the defendant’s handcuffs had not been removed and stated that throughout the entire afternoon’s proceedings the trial judge had been unaware of it. The prosecutor stated that he had not been aware that the defendant was handcuffed; and defendant’s counsel when asked by the court why he had not pointed out the situation earlier, stated that he had not noticed it himself. Apparently the defendant sat with his hands in his lap, behind the counsel table, and even his own counsel was unaware that he was handcuffed. Under these circumstances, and absent any showing of prejudice, we conclude that the trial court’s denial of defendant’s motion for a mistrial was not error.
The judgment is affirmed.
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Per Curiam:
This is an appeal from the denial of a motion pursuant to K. S. A. 60-1507.
The pertinent facts may be briefly summarized. On December 2, 1968, appellant George Gene Van Bebber was charged with two counts of first degree murder for the shooting deaths of two people. Counsel was retained and a jury trial was set for March 18, 1969. On that date, appellant entered a guilty plea to one of the two murder counts. The court dismissed the other count at the request of the prosecutor, accepted the guilty plea and sentenced appellant to life imprisonment in the Kansas State Penitentiary where he remains.
On November 25, 1974, appellant-movant filed, pro se, a motion pursuant to K. S. A. 60-1507 seeking to have his conviction and sentence set aside. His stated grounds for relief were (1) several witnesses for the state lied to investigating officers and perjured themselves in testifying, (2) his attorney coerced him into pleading guilty and failed to adequately represent him, and (3) his plea and subsequent sentence constituted a miscarriage of justice.
The district court appointed an attorney for the movant and, although the movant in his pro se motion did not indicate by whom he expected to prove his points, held a hearing on December 19, 1974, without the movant being present and permitted counsel to present the evidence which would be submitted if a formal hearing were to be held with movant present. The court found the offers showed that no grounds for relief could be substantiated, that no further hearing was required, and that the presence of the movant was unnecessary. This appeal is from that decision.
The appellant first contends the district court erred in failing to grant him a full evidentiary hearing. We disagree.
Guidelines for granting a full evidentiary hearing are provided by statute, Supreme Court Rule and case law. A hearing should be granted unless the motion and the files and records of the case conclusively show the movant is entitled to no relief. (Morrow v. State, 219 Kan. 442, 548 P. 2d 727; K. S. A. 60-1507 [b]; Kan. Sup. Ct. R. 121 [f], 214 Kan. xxxix [1974].) The court may entertain and determine such motion without requiring the prisoner to be present at the hearing. (K. S. A. 60-1507 [b].) The district court has discretion to decide if a claim is substantial before granting a full evidentiary hearing with the movant present. (Kan. Sup. Ct. R. 121 [h], 214 Kan. xxxix [1974].) The action of the district court in the instant case was consistent with these guidelines.
The tendered evidence would have shown that a potential witness may have given a statement to the county attorney which was at variance with the facts, if a tendered affidavit from a filling station attendant were to be believed. Further, it was indicated that a police inspector would testify as to the movants statements to him, and that the movant’s statements to the inspector would exonerate him of the crime. The third offer was that the testimony of the movant himself would show that his retained attorney coerced him into pleading guilty “by the threat that a jury would sentence him to death,” and that he pleaded guilty “because he had been in isolation most of the time he was in jail awaiting trial and that he pled guilty to get the case over and to spare his family the adverse publicity of a trial.”
A 1507 movant must allege facts which, if true, would entitle him to relief. (Morrow v. State, supra; Rhone v. State, 211 Kan. 206, 505 P. 2d 673.) Even if true, the movant’s offers of proof would not entitle him to relief. The tendered affidavit would have in no way exonerated the movant from his involvement in the crimes. The proposed testimony of a police inspector amounted to the movant’s own statements rather than any independent knowledge on the part of that witness. The choice of pleading guilty after consultation with counsel to avoid a possible death sentence does not, of itself, amount to coercion. (Davis v. State, 204 Kan. 372, 461 P. 2d 812.) Neither is confinement in isolation, of itself, sufficient to render a guilty plea involuntary or coerced. (Reid v. State, 213 Kan. 298, 515 P. 2d 1040.) Moreover, the proceedings in district court at the time the guilty plea was entered were in every respect regular and the allocution of the court thorough, showing the guilty plea was entered knowingly and voluntarily.
Based on the files and records of the case, the motion and the offers of proof, the district court was correct in finding that appellant’s motion was without merit and that a further hearing with movant present was unnecessary.
The appellant further complains of the district court’s refusal to provide him personally with copies of transcripts of proceedings in the criminal action at the expense of the state. The application was made after filing the notice of appeal herein and presumably for the purpose of aiding the petitioner in perfecting his appeal. The appellant does not contend his court appointed counsel was denied copies of the transcripts. Since his counsel had the transcripts, that is all that was necessary to meet requirements of justice. Furthermore, this court has held that the denial of a transcript at public expense in proceedings under K. S. A. 60-1507 is not a constitutional infringement. See Miller v. State, 204 Kan. 223, 460 P. 2d 501; and Jackson v. State, 204 Kan. 823, 465 P. 2d 927. What this court said in State v. Grant, 205 Kan. 220, 468 P. 2d 227, disposes of this contention. There, we said it must be assumed that appellant’s counsel, who had the transcript, consulted with the appellant and that he was fully informed and advised. It is not disclosed how the appellant in the instant case would have benefited from having a separate personal copy, or how his rights were prejudiced.
For the reasons stated, the judgment of the district court is affirmed.
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The opinion of the court was delivered by
Kaul, J.:
This is an action instituted by plaintiffs-appellants, Rex K. and Arleta J. Bell, against the City of Topeka and members of its governing body seeking injunctive relief in preventing the city from enforcing certain ordinances levying and assessing part of the costs against their real estate for improving and widening Burlingame Road. The real estate of plaintiffs is situated adjacent to Burlingame Road and is within a benefit district created by the city in connection with the project.
Burlingame Road is one of the oldest established roads in the Topeka area. In 1859 the legislature declared it to be a “Territorial Road” within the description of Chapter CXI of the Laws of 1859. At the time it was a section of a road described by the legislature as running from Atchison to Superior by way of Grasshopper Falls. Shawnee County took over and maintained that portion of the road that was within its boundaries. In a series of annexations, extending from 1952 to 1959, the area in question was annexed by the city which took over maintenance of the road. While the road has always been considered a major thoroughfare and required a great deal of maintenance, the city says it has never, heretofore, assessed adjacent property owners for any improvements. There is nothing in the record which indicates to the contrary. Upon the commencement of this action, the trial court granted a temporary injunction prohibiting the challenged assessment being spread upon the record. Following a trial to the court, judgment was entered for the city. The plaintiffs filed timely notice of this appeal and the trial court stayed its order dissolving its temporary injunction pending disposition of this appeal.
The underlying facts are not in serious dispute. In 1965 the city, through its governing body and engineering department, commenced consideration of the improvement of Burlingame Road from a two-lane street to a four-lane major improvement thoroughfare. After numerous studies and public hearings, the activities culminated in the adoption by the City Commission of Resolution No. 1443 on April 23, 1968. The resolution designated, as improvements, the purchase of right-of-way, grading, draining and paving so as to provide for four traffic lanes with additional paving width at intersections with 29th Street, Clontarf Street, 33rd Street and 37th Street. The resolution also recited that the city would enter into an agreement with Shawnee County, making the county its agent, to carry out the construction and providing for joint participation on the project, and that the county should be liable for all engineering design and inspection costs and fifty percent of the construction cost. The resolution further provided that the city would be liable for fifty percent of the construction and right-of-way costs, and that when the city’s share of the project cost was determined, fifty percent of that cost should be apportioned to the city at large and fifty percent to the benefit district on a special assessment basis. The major traffic street improvement was entitled “Street Improvement Project No. 114.”
The resolution indicated that the city was proceeding under K. S. A. 13-10,115. This statute is entitled:
“Major traffic streets in certain cities in counties over 120,000; resolution; protests; election; temporary notes and bonds; special assessments and payments by city. . . .”
The purpose of the statute is to authorize and provide a special procedure for the designation of major traffic streets and the improvement thereof by cities which meet the qualifications of the statute as to population and assessed valuation. Although the statute was enacted in 1945, this is its first appearance before this court.
Prior to the adoption of the resolution on November 21, 1967, the city had entered into an agreement with the county by the terms of which the governmental bodies were to cooperate in the construction and funding of the improvement in question. This agreement was silent on the issue of the parties’ respective liabilities for engineering design and inspection costs.
Following the adoption of Resolution No. 1443, the city, on July 23, 1968, passed and approved Ordinance No. 12564 authorizing construction of “Street Improvement Project No. 114” in accordance with Resolution No. 1443. The ordinance recited that no protests, in compliance with 13-10,115, had been filed against the resolution.
During the next few years the city held public hearings and meetings with landowners in the proposed benefit district and caused engineering studies and cost estimates to be made for the project. Pursuant to the provisions of 13-10,115, the city undertook to draw boundaries and establish a special benefit district in connection with the project. In this connection the pertinent portion of 13-10,115 reads as follows:
“. . . If only a percentage (which shall not be less than fifty percent) of the cost is paid 'by the city, the remaining cost shall be assessed against the adjacent real property, without regard to the value of the improvements, to the middle of the block on either side; and as to unplatted territory, as provided in K. S. A. 12-606 and amendments thereto, without regard to grading district and not by blocks. The portion of the cost to be assessed against the property in the improvement district shall be apportioned in the manner provided in K. S. A. 12-608 and amendments thereto or in the manner provided in K. S. A. 12-6a08.” (Emphasis supplied.)
Due to the irregularities in the sizes and shapes of “blocks” adjacent to Burlingame Road, application of this statutory language produced a benefit district varying widely in depth. City officials were concerned with the irregularities of the map, as drawn and as stated in city’s brief:
“. . . Due to the apparent ambiguity of this map, other plans were prepared in order to comply with what the Appellees deemed to be the true spirit of the statute.”
The city proceeded to fashion a new benefit district map creating “fictional blocks” for assessment purposes along Burlingame Road which would be of a more regular and uniform size and shape. The second benefit district map was accomplished by using the closest parallel streets on either side of the project and computing the distance one-half way to those parallel streets. The city then extended a hypothetical line at this computed distance from and parallel to Burlingame Road for the entire length of the project and on both sides thereof. All properties adjacent to the project and within these imaginary lines were deemed by the city to be included in the benefit district thus created.
In the meantime, on August 13, 1974, the district court of Shawnee County had entered a judgment in an unrelated case entitled Emland Builders, Inc. v. The City of Topeka, et al., No. 114,984, upon which the city relied for authority in creating the second benefit district by the extension of the imaginary lines from parallel streets which dead-ended against some of the larger blocks which were included to the center line in the first benefit district. The city’s authority to so establish the revised benefit district by the creation of “fictional blocks” is the major issue involved in this appeal.
In the course of public hearings on the proposed assessments and establishment of the benefit district, on April 30, 1974, City Commissioner Elder moved that the proposed assessment be referred back to the city engineering and finance departments for reevaluation of the project:
“. . . ‘minus the intersections of 29th and 37th Streets and less condemnation for property outside the benefit district. . . .’ ”
The motion carried unanimously. Pursuant to the motion, the city departments involved, subtracted a portion of the construction costs of the two intersections mentioned and also subtracted a part of the right-of-way condemnation costs expended in connection with the building of the two intersections in question. As a result of the departments’ reevaluation, pursuant to Commissioner Elder’s motion, only a portion of the costs of the two intersections were subtracted from the benefit district’s share of the cost of the project. The city proceeded to adopt Ordinance No. 13654 which apportioned and levied special assessments on the lots and parcels within the boundaries of the revised benefit district. Following this action of the city the plaintiffs filed their petition instituting this litigation.
In their petition plaintiffs advanced several instances which were alleged to be conclusive evidence that the city had acted in an arbitrary, capricious and unreasonable manner. After a trial and submission of briefs, the trial court determined that plaintiffs had failed to sustain their burden of showing arbitrary, capricious, fraudulent or unlawful actions. Judgment was entered for the city and this appeal ensued.
Plaintiffs brief seven points on appeal. Their first two points involve the construction of the statute under which the city elected to proceed. Although several statutory schemes were available for such projects, the city chose to proceed under 13-10,115, which appears to be specifically adaptable to the improvement or reimprovement of streets in certain cities, that are declared to be “major traffic streets,” as distinguished from ordinary street improvement projects which are provided for by other statutes. By its election of 13-10,115, the city became bound to follow its provisions, notwithstanding that provisions in alternative statutes may have seemed more attractive or even more equitable to the city governing body. This principle is firmly embedded in decisions of this court dealing with assessments for street improvements. In the early case of Cravens v. City of Salina, 101 Kan. 161, 165 Pac. 801, we said:
“. . . The plaintiffs are entitled to have their property assessed according to the statutory method, and, as we have seen, the departure from that method resulted in a substantial increase in the assessments that were made. The city may not adopt a different plan of assessment because it may be more convenient for the mayor and council or because its officers may think it to be more equitable in its application. The legislature had the authority to make an apportionment, and it is well established that statutory rules making special assessments upon private property must be strictly followed. . . .” (p. 163.)
Our holding in Cravens has been followed in numerous subsequent cases, e. g., Atchison, T. & S. F. Rly. Co. v. City of Kingman, 122 Kan. 504, 252 Pac. 220; and Railway Co. v. City of Topeka, 103 Kan. 897, 176 Pac. 642. The most recent case, Dodson v. City of Ulysses, 219 Kan. 418, 549 P. 2d 430, involved a paving project which was undertaken pursuant to the “old” general paving law, K. S. A. 12-601, et seq. However, the City of Ulysses attempted to employ a front foot method of assessment. This method is an authorized alternative under the “new” general improvement and assessment law, K. S. A. 12-6a01, et seq., but not under the “old” law which provided only for assessments according to value. Concerning this departure from statutory provisions, we said in the Dodson opinion:
“. . . When it initiated this project the city had a choice of statutes to follow. Once it elected to employ the ‘old’ statute it was bound to follow it. . . .” (p. 425.)
So, in the instant case, the city, once having elected to proceed under 13-10,115, is bound to follow the provisions thereof. It follows that affected property owners are entitled to have their property assessed according to the statutory method, and a substantial departure from the method prescribed by the legislature will invalidate the assessment.
In their first two points plaintiffs assert that 13-10,115 is mandatory with respect to the apportionment of costs and that if mandatory then the benefit district finally created by the city is insufficient in size, based on the definition of “block,” as the word appears in the statute. It should be noted that the first proposed benefit district included some 250 parcels of land which was reduced to 80 in the district finally adopted.
We turn to the question whether the pertinent language of 13-10,115 must be treated as mandatory. The critical words are:
“. . . [T]he remaining cost shall be assessed against the adjacent real property, without regard to the value of the improvements, to the middle of the block on either side; . . .” (Emphasis supplied.)
Adversely to plaintiffs’ position, the city maintains the language in question is discretionary only, and that as a consequence a misconstruction of the word “block” should not invalidate the assessment. In our view, the city’s position is untenable.
This court delineated the test to be applied in determining whether statutory language is mandatory or directory in Wilcox v. Billings, 200 Kan. 654, 438 P. 2d 108, wherein we said:
“No absolute test exists by which it may be determined whether a statute is directory or mandatory. Each case must stand largely on its own facts, to be determined on an interpretation of the particular language used. Certain rules and aids to construction have been stated. The primary rule is to ascertain legislative intent as revealed by an examination of the whole act. Consideration must be given to the entire statute, its nature, its object, and the consequences which would result from construing it one way or the other. It has been said that whether a statute is directory or mandatory depends on whether the thing directed to be done is of the essence of the thing required, or is a mere matter of form. Accordingly, when a particular provision of a statute relates to some immaterial matter, as to which compliance with the statute is a matter of convenience rather than substance, or where the directions of a statute are given merely with a view to the proper, orderly, and prompt conduct of business, it is generally regarded as directory, unless followed by words of absolute prohibition; and a statute is regarded as directory where no substantial rights depend on it, no injury can result from ignoring it, and the purpose of the legislature can be accomplished in a manner other than that prescribed, with substantially the same results. On the other hand, a provision relating to the essence of the thing to be done, that is, to matters of substance, is mandatory, and when a fair interpretation of a statute, which directs acts or proceedings to be done in a certain way, shows that the legislature intended a compliance with such provision to be essential to the validity of the act or proceeding, or when some antecedent and prerequisite conditions must exist prior to the exercise of power or must be performed before certain other powers can be exercised, the statute must be regarded as mandatory. (82 C. J. S., Statutes, § 376).” (pp. 657-658.)
A long line of Kansas cases has apparently treated statutory language such as that encountered in the case at bar as mandatory, although the mandatory-directory dichotomy is not specifically enunciated therein. Exemplary of this line of cases is Atchison, T. & S. F. Rly. Co. v. City of Kingman, supra, wherein we said:
“. . . The legislature has prescribed the plans and limits of assessments for the improvement of streets and the statutory rules prescribed for levying assessments on private property must be strictly followed. (Simpson v. Kansas City, 46 Kan. 438, 26 Pac. 721; Cravens v. City of Salina, 101 Kan. 161, 165 Pac. 801.) . . .” (p.506.)
See, also, Dodson v. City of Ulysses, supra; and Schulenberg v. City of Reading, 196 Kan. 43, 410 P. 2d 324.
It is true, the word “shall” when employed in a statute has been read to mean “may.” (See Paul v. City of Manhattan, 212 Kan. 381, 511 P. 2d 244; and Wilcox v. Billings, supra.) This interpretation of “shall” has been approved when the term was employed in a statutory provision directing the mode of proceeding by public officers, and the legislative intention was to secure order, system and dispatch in proceedings, and where the rights of parties could not be injuriously affected by the disregard of the particular statutory provision. In this connection we held in City of Hutchinson v. Ryan, 154 Kan. 751, 121 P. 2d 179:
“In determining whether statutory provisions are mandatory or directory, it is a general rule that where strict compliance with the provision is essential to the preservation of the rights of parties affected and to the validity of the proceeding, the provision is mandatory, but where the provision fixes a mode of proceeding and a time within which an official act is to be done, and is intended to secure order, system and dispatch of the public business, the provision is directory.” (Syl. 1.)
In the statutory context in which “shall” is used in K. S. A. 13-10,115 it is not employed to direct a mode of proceeding and to secure order and dispatch, but rather to declare specifically how assessments shall be taxed with respect to both platted and unplatted land. When the taxing clause is read in the context of the entire statute, it seems clear that the purpose of the legislature could not be accomplished in a manner other than that prescribed. Obviously, the taxing clause in question affects substantial property rights and is the very essence of the things to be done. We have no hesitancy in holding the statutory provision in question to be mandatory.
We turn next to the definition of “block,” as it appears in 13-10,115 — the major issue in this appeal. At the outset, in considering this issue, it must be kept in mind that this case involves only “platted” land. Almost from the inception of statehood, this court has been confronted with litigation involving the definition of “block,” as it has been used in statutes and municipal ordinances relating to the taxing of costs for the improvement of streets and alleys. As early as 1865 this court in Hines et al. v. City of Leavenworth et al., 3 Kan. (2d.) 180, was confronted, inter alia, with the constitutionality of a street improvement statute which the court said required that “the charge must extend back to the middle of the block.”
In 1872, in City of Ottawa v. Barney, 10 Kan. (2d) *270, the court for the first time defined “block” as used in a street improvement statute and considered the underlying rationale of the assessment to the middle of the block concept for street improvements. The pertinent portion of the statute involved was said to be:
“. . . ‘For macadamizing, the assessments shall be made on all lots and pieces of ground to the center of the block extending along the street or avenue the distance improved, or to be improved, according to the assessed value of the lots and pieces of ground,’ etc. Laws 1871, p. 149, § 16, cl. 3.” (spp. 277-278.)
The issue in litigation arose because blocks adjacent to the improved street were divided into lots only a few of which touched upon the street. The city, rather than assessing against all lots, or portions thereof, to the middle of the block, taxed only those lots abutting on the street. The trial court upheld the city; this court reversed.
The underlying issue in Ottawa is analogous to that raised where irregular blocks are involved such as in the case at bar. Justice Brewer speaking for the court defined “block” in terms which have been consistently adhered to down through the years and he also delineated the underlying rationale of “middle of the block” assess ments, which is threaded through our many subsequent cases dealing with the subject. Justice Brewer said:
“. . . A block is defined by Webster as ‘a square or portion of a city inclosed by streets, whether occupied by buildings or composed of vacant lots.’ It is a portion of ground surrounded by streets. Taxing to the center of the block for the improvement of the surrounding streets makes each portion bear its proper share of the total burden. Otherwise, the central lots will bear only a part of the burden of the improvements in die front of the block, while the end lots will bear an equal share of this, and the whole burden of more on the side of the block. This would be evidently unfair unless the central lots received no benefit from the improvements on the side. But the fact is the whole block receives benefit from the improvements made anywhere around it. Especially is this true of the ‘squares and areas formed by the crossing of streets,’ the improvement of which benefits the front of the block as much as the side; and yet the cost of this is collected in the same way. The end lots may receive more benefit from improvements on the side, but being valued more highly will pay more for those, as well as for the improvements in front. There is a certain sort of relationship between street and blocks, whose existence we all appreciate, no matter how illy it may be in fact recognized. The streets are for the service and use of the blocks; and the idea is that there should be such an adjustment of their numbers and size that each portion of the block should receive all needful service from the streets.” (° pp. 278-279.)
Concerning the definition of block, it was stated in Bowlus v. Iola, 82 Kan. 774, 109 Pac. 405:
“. . . According to all the dictionaries and the popular understanding everywhere a block is a portion of a city surrounded by streets. . . .” (p. 776.)
And in Larson v. City of Ottawa, 101 Kan. 422, 166 Pac. 565, we said:
", . . In the matter of assessments for street improvements there has been uniformity of decision that a block is a square or tract of platted land surrounded by streets (citing cases).” (p. 424.)
See, also, Colorado Oil & Gas Corp. v. City of Topeka, 196 Kan. 337, 411 P. 2d 586.
The underlying theory, expressed in the Ottawa case, that land lying between the center line of a block, regardless of size, and the improved street is specially benefited because it is necessarily closer to the improved street than to any other street running in the same direction may be gleaned from many of our subsequent decisions.
In cases dealing with assessment against platted land for street improvements, under various statutes, irregularity in size has never been regarded as cause for departing from the statutory rule nor as invalidating the assessments made. In Railway Co. v. City of Topeka, supra, we held:
“In making and apportioning a special assessment for paving a street in a platted portion of the city, the block is the unit, and the fact that the block may vary in size and shape from others in the city does not [a]ifect the rule, or the validity of the assessment.” (Syl. 1.)
To the same effect it is stated in Cravens v. City of Salina, supra:
“. . . Some blocks abutting on a street are deeper than others, but a variation in depth has never been regarded as cause for departing from the statutory rule nor as invalidating the assessments made.” (p. 164.)
In a few exceptional cases it has been said that the boundaries of a block may be determined by the topography of the ground or where ground is platted into blocks in the extreme outskirts of a city or where the land in question abuts on a river or other natural or man made obstruction. (Colorado Oil & Gas Corp. v. City of Topeka, supra; and Atchison, T. & S. F. Rly. Co. v. City of Kingman, supra.) No such exceptional circumstances exist in this case — the city basing its theory solely on the irregularity in size and shape of the blocks in question.
Previous attempts by cities to create “fictional blocks” in establishing benefit districts under statutes similar to 13-10,115 have been condemned by this oourt. In Lynch v. Kansas City, 136 Kan. 348, 15 P. 2d 720, the city designated an alley as a street thereby creating two blocks from what was previously one and thus substantially affecting the boundaries of the benefit district in question. In condemning the city’s action this court relied on the rule enunciated in Cravens that statutory rules making special assessments upon private property must be strictly followed and further stated:
“Substantially all that has been effected by the change of denomination of this dedicated alley to a street has been the change of the benefit district. This, as quoted above, is not the province of the city commission.” (p. 352.)
To the same effect this court held in Bowlus v. Iola, supra, that a landowner in his plat of dedication could not change the extent of a benefit district by numbering as two separate blocks the parts of a block separated by an alley.
In Sports Center, Inc. v. City of Wichita, 176 Kan. 84, 269 P. 2d 399, the city attempted to create a fictional block in precisely the same manner as that employed by the city herein. In a street improvement proceeding under G. S. 1949, 12-601, the city considered as extended through a tract of land streets only the ends of which abutted that tract and thus created a fictional block. This court noted that no statutes were cited authorizing the city to so create a block for the purposes of assessment for street improvements and held:
“Under the statutes of this state a city has no power to consider as extended through a tract of land streets only the ends of which abut that tract and thus create a fictional block where in fact there is none.” (Syl. 2.)
We believe Sports Center, Inc., to be squarely in point with the issue presented here and must control our decision.
The city cites Mai v. City of Topeka, 191 Kan. 589, 383 P. 2d 553, in support of its argument that in particular factual situations strict application of statutory middle of the block assessment must give way to a “common sensical” approach in defining the word “block.” The Mai case is not in point. The land involved was unplatted, both as to lots and blocks, but since the tract in question was surrounded by streets, it was treated by the city as a block for street improvement assessment purposes. This court ruled adversely to the city’s position on the grounds that the tract in question was unplatted and was of such size that it was evident, that to be developed, it would have to be multisected by streets into numerous blocks for the purpose of platting building sites. The court ruled that the tract must be assessed as unplatted land in accordance with the statute. (G. S. 1949, 12-606.)
Likewise, the case of Union Pac. Rld. Co. v. City of Russell, 119 Kan. 350, 240 Pac. 264, cited in Mai, dealt with a mixture of platted and unplatted land. Neither Mai nor Union Pac. Rld. lends support to the proposition that fictional blocks may be created by considering as extended through tracts of platted land streets only the ends of which abut the land in question.
The city says that in revising the benefit district it relied upon the Shawnee County District Court decision of August 13, 1971, in the unrelated case of Emland Builders, Inc. v. The City of Topeka, et al., No. 114,984. The decision is reproduced in 'the record and appears to be a ruling on a motion for a new trial in which it apt-pears the district court reversed its prior judgment against the city. The case involved a proceeding under 13-10,115, in which the city, apparently as in the instant case, considered as extended through a block, a street which ended. The gist of the district court’s ruling appears as follows:
“. . . [T]he Court directs that its judgment be further corrected to reflect that Block ‘C’ of Bluewood Subdivision be divided into two blocks at the point that Belle Avenue runs into said block ‘C’ (See Wise v. City of Chicago, 183 Ill. App. 215, 216, cited in Black’s Law Dictionary, Fourth Edition, for the proposition that on occasion a block may be construed not to extend between two streets that completely cross the street in question, but to stop at a street running into it although not across it).”
The citations referred to are the only authorities mentioned by the court in its letter of decision. Wise v. City of Chicago, et al., 183 Ill. App. 215, is a 1913 Illinois Court of Appeals decision involving a city ordinance which prohibited the building of a garage on a street where a certain percent of the buildings on both sides of a block are residences. In Wise the word “block” was construed as to its meaning as a linear measure on a street rather than its meaning when used to designate a tract or square of platted land. The issue in Wise was whether a linear block extended from an intersecting street beyond a dead-end or “T” intersecting street to a street which completely intersected the street in question. The court held that in such a case, a linear block ran only to the “T” intersecting street. The decision is unrelated to the issue at bar.
Apparently, the city in the Emland case acted upon a misinterpretation of the statute. In this connection this court held in Bowlus v. Iola, supra:
“The fact that in previous similar cases the city acted upon a misinterpretation of the statute in assessing street improvements does not estop it from now proceeding according to law.” (Syl. 2.)
See, also, Lynch v. Kansas City, supra.
The permissible methods of assessment are clearly set out in precise language in 13-10,115. The distinction to be made between the assessment of platted and unplatted land is unequivocally distinguished. The definition of “block” employed by this court in connection with similar language, appearing in other statutes, has been in our reports for many years. It must be assumed that the legislature intended that the same meaning would be given to “block” when 13-10,115 was enacted in 1945, even though alternative, more flexible statutes have been subsequently enacted. As had been demonstrated, it is firmly established in this jurisdiction that once a city has chosen a statutory proceeding the provisions of the particular statute must be followed throughout the course of the proceedings. We hold the trial court erred in approving the city’s definition of “block” in establishing its revised benefit district as being unlawful in contravention of the express provisions of 13-10,115, and that portion of the trial court’s judgment is reversed.
Plaintiffs next claim the city violated a binding motion passed by it deleting from the benefit district a portion of the costs of the major traffic thoroughfare. Plaintiffs’ contention on this point is directed at the inclusion of a portion of the costs of the 29th and 37th Streets intersections in the levy against the district. In the city’s master plan for major traffic thoroughfares, adopted in 1958, 29th Street was designated a major traffic thoroughfare throughout its course across the city. The portion of 37th Street extending from Burlingame Road through Topeka Boulevard, the major north-south trafficway in the city, was, likewise, designated in the master plan. It is undisputed that both 29th and 37th Streets were justifiably designated major traffic thoroughfares. The intersections in question are described as sophisticated and highly developed, including extensive median strips and left-hand turn lanes, and all purpose traffic signals.
The record reflects much confusion in the tortuous course of these proceedings in connection with the costs of the subject intersections. Plaintiffs first direct our attention to a motion passed by the city governing body on April 30, 1974, which is reflected in the city’s minutes as follows:
“Commissioner Elder moved the matter be referred to the Engineering and Finance Departments for re-evaluation of project minus the intersections of 29th and 37th Streets and less condemnation for property outside the Benefit District and continue the public hearing thirty days. Motion carried unanimously.”
Plaintiffs argue that the city became absolutely bound by the motion and, thus, was compelled to delete, from the benefit district assessment, the entire cost of the intersections. We cannot agree with plaintiffs’ interpretation of the wording of the motion. We read the motion only as a referral for a reevaluation to be considered at a later time by the city commission. However, we do consider actions of the city in this regard as some evidence of a willingness to delete the intersections’ costs and as demonstrating the city commission’s state of indecision concerning the matter. Plaintiffs also point out that in a declaratory judgment case, preceding the instant litigation, but involving the same parties, the city in its answer to plaintiffs’ petition alleged that:
“Defendant denies that it has or intends to include any of the cost of the intersections at 29th or 37th Streets or of condemnation of property outside the special assessment district in the special assessments to he levied against Plaintiffs (Emphasis supplied.)”
At a special session of the commission on June 4, 1974, the revised figures concerning costs of the intersections were presented to the commission by the city engineering department. The events of this special session of the commission are stipulated to by the parties as follows:
“. . . The Mayor said he was under the impression that all of the intersections were to [be] taken out. In order to have further study of the question, the Mayor suggested continuing the hearing. Commissioner Taylor moved the Public Hearing be continued for thirty days. Motion carried unanimously. However, no later action has ever been taken to change the deductions at any subsequent hearing.”
It appears, from the stipulation, that the city commission never formally terminated the matter of reconsidering the intersections question. We find no evidence of fraud or bad faith. However, the admissions and indecisiveness of the city commission, as shown by the circumstances related, considered together with insignificance of the benefits, if any, resulting to local residents from the thoroughfare intersections, we believe, compel the conclusion that the assessment of any part of the costs of the intersections against the benefit district would result in palpable injustice.
In their seventh point, plaintiffs argue that the tax burden imposed by the proposed project plan is grossly disproportionate to any special benefits received by plaintiffs’ property. We believe the argument is particularly persuasive with respect to the intersections in question. Where intersections, such as those in question, are designed, primarily to control the pattern and flow of through traffic into and across the intersections of major thoroughfares, the benefit, if any, to adjacent property is obviously negligible in comparison to the city at large.
It is true, as the city points out, 13-10,115 contains no provision relating to the balancing of benefits. However, this court has recognized that the foundation of the power to levy a special assessment for a local improvement of any character, is that the property against which the assessment is levied derives some special benefit from the improvement. (Mullins v. City of El Dorado, 200 Kan. 336, 436 P. 2d 837; and State Highway Commission v. City of Topeka, 193 Kan. 335, 393 P. 2d 1008.) Although the law does not require that a special assessment correspond exactly with the benefits received, this court has said that if the burden imposed is entirely disproportionate to benefits received courts will, under their equity powers, grant relief. (Schulenberg v. City of Reading, 196 Kan. 43, 410 P. 2d 324; Hurley v. Board of County Commissioners, 188 Kan. 60, 360 P. 2d 1110; and Railroad Co. v. Mitchell County, 110 Kan. 582, 204 Pac. 729.)
We are well aware of the principle recognized in all of our special assessment cases that the action of municipal authorities in making special assessments is presumed to be legal, equitable and just, and the assessment is prima facie evidence of the regularity and correctness of all prior proceedings. (Mullins v. City of El Dorado, supra; Grecian v. Hill City, 123 Kan. 542, 256 Pac. 163; 14 McQuillin, Municipal Corporations, §38.183.) Circumstances warranting court interference are set out in Hurley v. Board of County Commissioners, supra, wherein we held:
“Ordinarily the question of the existence and extent of special benefit resulting from a public improvement for which a special assessment is made, is one of fact to be determined by the administrative body authorized to act in the premises and is conclusive on the property owners and the courts. Inherent in the rule, however, is that an assessment so made must be fair, just and equitable, and if palpable injustice results courts will, under their equity powers, grant relief.” (Syl. 1.)
Under the particular facts and circumstances surrounding the city’s actions concerning the intersections in question, viewed together with the extreme disproportion of the burden imposed to the benefits received, we hold that the assessment of any costs of the 29th and 37th Streets intersections against the benefit district property is arbitrary and unreasonable and that such assessment must be enjoined.
While what has been said disposes of the major issues involved in this appeal, because this is the first appearance of 13-10,115 before this court several other matters raised by plaintiffs deserve brief attention. Plaintiffs claim the city misinterpreted the provisions of the statute specifying the minimum amount which must be paid by the city at large. The language of the statute pertinent to this point reads:
“. . . If only a percentage (which shall not be less than fifty percent) of the cost is paid by the city, the remaining cost shall be assessed against the adjacent real property, without regard to the value of the improvements, to the middle of the block on either side; . . .”
Plaintiffs say that the term “costs” as used should be interpreted to mean the “total cost” of a project without regard to any participation by other governmental bodies or the use of federal funding. Under the plan for this project, plaintiffs’ interpretation would eliminate altogether any assessment against the district. If the city at large were required to pay fifty percent of the total costs, federal funding would pay the other fifty percent. The city, on the other hand, says “costs” means net cost to the city. The city, in planning, and the trial court in deciding the issue, relied upon an opinion of the attorney general. In his opinion, which is reproduced in the record, the attorney general relied upon City of Camilla v. Cochran, 160 Ga. 424, 128 S. E. 194, which we have examined and found to be in point. The Georgia Supreme Court in construing a street improvement statute, similar to that before us, said:
“. . . The City of Camilla is authorized to assess the cost of paving and otherwise improving its streets against the owners of real estate abutting on said streets, as well as against said real estate, provided the amounts so assessed against property owners for said purposes shall in no instance be more than two thirds of said cost. Ga. Laws 1919, p. 867. The term ‘cost,’ as used in this act, clearly means the amount which the city had to expend in paving its streets.” (p. 431.)
We have examined cases cited by plaintiffs, but find them not to be in point. We believe a fair reading of the pertinent provisions indicates the word “cost” in the context used means cost to the city. The trial court correctly ruled on the matter and its decision is affirmed.
Plaintiffs also contend the provisions of Resolution No. 1443 and provisions of the agreement between the city and the county were in conflict as they related to the payment of engineering costs and, therefore, inclusion of any of those costs in the assessment against the benefit district were illegal. As previously noted, the agreement between the city and county is silent regarding their respective liabilities for engineering and design costs. In passing the resolution, the city undoubtedly contemplated asking the county to pay these costs, but, as the city says, it was simply unsuccessful. We find no merit in plaintiffs’ contention in this regard. The trial court in finding No. 6 found the engineering costs were properly included in the overall costs and its rulings is affirmed.
Other points raised by plaintiffs are, by reason of our decision, found to be either moot or without merit.
On appeal the judgment is reversed with respect to the boundary lines of the benefit district and the assessment of costs of the 29th and 37th Streets intersections and is affirmed in all other respects. The case is remanded for further proceedings in harmony with this opinion.
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The opinion of the court was delivered by
Owsley, J.:
Plaintiff Wilfred Dold filed suit to recover damages for the breach of express and implied warranties arising out of the purchase of cattle from defendant Mike Sherow. Defendant appeals from a $25,000 jury verdict in favor of plaintiff.
Plaintiff Dold was a cattleman with a herd of approximately fifty stock cows. In search of additional stock Dold came upon Sherow's notice in the “High Plains Journal,” advertising the sale of fifty head of white-face cattle. Dold contacted Sherow and arranged to meet with him to discuss the sale. On January 2, 1973, Dold, accompanied by his two sons, went to defendant’s farm near Langdon, Kansas, to view the cattle. According to the testimony of Dold and his sons, Sherow represented that the cattle were four to seven years old and that they would all calve by April 15, 1973. Dold claims he told Sherow he would have no use for the cows if they were not bred. The cows were not pregnancy or age checked because of the additional expense. Relying upon the alleged representations made by Sherow, Dold purchased the fifty cows for $228.00 per head.
On January 3, 1973, the cattle were delivered to Dold. One of them died on the second day and within a few days Dold noticed that the cattle were not doing well. Dold called a veterinarian, Dr. Roger Gracey, who checked three of the cows and found one was not pregnant. He also determined that some of the cows were older than seven years. Dr. Gracey made a more extensive check of the entire herd around March 1, 1973. Based upon his examination of the cattle, Dr. Gracey determined that of the fifty head Dold purchased from Sherow only two would calve by April 15, and forty of the cows were over seven years old.
On November 7, 1973, Dold filed suit in the district court alleging that Sherow wrongfully and recklessly made misstatements, misrepresentations and warranties with the intent to deceive and induce Dold to purchase the cows. By amended petition Dold prayed for actual damages in the amount of $25,883.38, and punitive damages of $10,000. Sherow answered by general denial. The jury found in favor of plaintiff Dold and awarded him $22,000 in actual damages and $3,000 in punitive damages.
As his first claim of error defendant contends the trial court erred in not granting his motions for a directed verdict and judgment notwithstanding the verdict. The motions were based on a claim there was no evidence to show that plaintiff gave notice to defendant of the breach of warranty pursuant to K. S. A. 84-2-607 (3). The statute provides:
“(3) Where a tender has been accepted
“ (a) the buyer must within a reasonable time after he discovers or should have discovered any breach notify the seller of breach or be barred from any remedy; . . .”
The burden is on the party claiming the breach to plead and prove notice within a reasonable time. (Ehlers v. Chrysler Motor Corporation, 226 N. W. 2d 157 [S. Dak. 1975]; Schnabl v. Ford Motor Co., 54 Wis. 2d 345, 195 N. W. 2d 602, 198 N. W. 2d 161 [1972]; Lindsey v. International Shoe Company, 45 Ala. App. 566, 233 So. 2d 507 [1970]; Carey v. I. J. Kayle & Associates, 122 Ill. App. 2d 403, 259 N. E. 2d 304 [1970]; Green Seed Co. of Ark. v. Williams, 246 Ark. 463, 438 S. W. 2d 717 [1969]; Jan Ree Frocks v. Pred, 68 S. Dak. 356, 2 N. W. 2d 696 [1942].) The notice requirement is generally considered to be in the nature of a condition precedent to plaintiff’s recovery. (Bennett v. United Auto Parts, Inc., 294 Ala. 300, 315 So. 2d 579 [1975]; Lynx, Inc. v. Ordnance Products, 273 Md. 1, 327 A. 2d 502 [1974]; Kohlenberger v. Tyson's Foods, 256 Ark. 584, 510 S. W. 2d 555 [1974]; Page v. Camper City & Mobile Home Sales, 292 Ala. 562, 297 So. 2d 810 [1974].)
It is undisputed in the instant case that plaintiff’s petition failed to allege that notice was given; nor was there a general allegation in the petition of fulfillment of all conditions precedent. In fact, the record supports the conclusion that there was no evidence at trial by either plaintiff or defendant indicating whether notice was given pursuant to 84-2-607 (3).
Based on these facts the issue before us boils down to whether plaintiff is barred from any remedy by failure to plead and prove notice. The official UCC comment to 84-2-607 (3) [Comment No. 4] notes that “the rule of requiring notification is designed to defeat commercial bad faith, not to deprive a good faith consumer of his remedy.” By receiving timely notice of an alleged breach the seller is afforded an opportunity to prepare his defenses and govern his conduct accordingly. (Davidson v. Wee, 93 Ariz. 191, 379 P. 2d 744 [1963].)
Plaintiff purchased the cows from defendant on January 2, 1973. On January 10, 1973, three of the cows were inspected by a veterinarian and found to be older than represented and without calves. The entire herd was inspected around March 1, 1973, whereupon the extent of the breach was fully discovered by plaintiff. Suit was not brought until eight months later, on November 7, 1973.
We have established that the statutory requirement of notice under 84-2-607 (3) is in the nature of a condition precedent which must be pled and proved by the party claiming the breach of warranty. Under K. S. A. 60-209 (c) it would have been sufficient for plaintiff to aver generally that all conditions precedent had been performed. (James v. City of Wichita, 202 Kan. 222, 447 P. 2d 817.) Having failed to do so, the plaintiff’s petition was defective, but plaintiff points out that the issue of notice was not raised at the pretrial conference. The pretrial order filed by the trial court set out the amendments to the pleadings, the allegations of the parties, the issues of law and fact to be determined, and the list of witnesses and exhibits. No reference is made to the issue of notice. Part of the court’s order stated:
“It Is by the Court Considered, Ordered, Adjudged and Decreed that the subsequent course of this action and the trial thereof, relative to the matters so specified, shall be controlled by the following, unless modified to prevent manifest injustice.”
Statutory authorization for a pretrial conference is found in K. S. A. 60-216. The final paragraph of that section provides:
“The court in its discretion may, and shall upon the request of either party make an order which recites the action taken at the conference, the amendments allowed to the pleadings, and the agreements made by the parties as to any of the matters considered, and which limits the issues for trial to those not disposed of by admissions or agreements of counsel; and such order when entered controls the subsequent course of the action, unless modified at the trial to prevent manifest injustice. . . .”
Pursuant to this provision this court has held on many occasions that the orders entered at a pretrial conference have the full force of other orders of the court and they control the subsequent course of the action, unless modified at trial to prevent manifest injustice. (Herrell v. Maddux, 217 Kan. 192, 535 P. 2d 935; Beard v. Montgomery Ward & Co., 215 Kan. 343, 524 P. 2d 1159; Apperson v. Security State Bank, 215 Kan. 724, 528 P. 2d 1211; Tillotson v. Abbott, 205 Kan. 706, 472 P. 2d 240; Freeto Construction Co. v. American Hoist & Derrick Co., 203 Kan. 741, 457 P. 2d 1; Evangelist v. Bellern Research Corporation, 199 Kan. 638, 433 P. 2d 380; Brown v. Hardin, 197 Kan. 517, 419 P. 2d 912.) Accordingly, it has been held that a party may not raise the inadequacies in a pleading after the issues have been determined by a pretrial order. (Bilardi Construction, Inc. v. Spencer, 86 Cal. Rptr. 406, 6 Cal. App. 3d 771 [1970]; Frank v. Giesy, 117 F. 2d 122 [9th Cir. 1941].)
In line with this authority we hold that plaintiff’s failure to plead and prove the statutory requirement of notice under 84-2-607 (3) was waived by defendant’s failure to raise the issue at the pretrial conference. Since it was not one of the issues specified in the pretrial order, and there was no motion to amend the order, it was not necessary for plaintiff to offer evidence of notice at trial. Defendant’s motion for a directed verdict at the close of the evidence came too late to raise the issue for the first time. The pretrial order shall control as to the issues properly before the court. It is therefore our conclusion that the trial court did not err in refusing to grant defendant’s motion for a directed verdict or judgment notwithstanding the verdict.
Defendant next contends the trial court erred in instructing the jury as to the measure of damages for breach of warranty. The court instructed the jury as follows:
“No. 10
“The measure of damages for breach of an express or implied warranty is the difference between the value of the goods at the time of delivery and the value had they conformed to the warranty. Damages may not exceed the sum of $25,833.38, this being the amount of the plaintiff’s claim.”
“No. 11
“If you find for the Plaintiff, then you must award Plaintiff such sum as you believe will fairly and justly compensate the Plaintiff for the damages you believe Plaintiff sustained as a direct result of the occurrence complained of by the Plaintiff. The laws of Kansas provide for consequential damages resulting from the seller’s breach of warranty which includes loss from general or particular requirements and needs which the seller at the time of contracting, had reason to know and which the buyer could not have prevented by reasonable care and diligence.”
Defendant complains the instructions should have advised the jury of the statutory notice requirement. As previously stated, the question of notice was not pled, tried, or mentioned in the pretrial order. Since it was not an issue in the case it was not necessary for the trial court to instruct the jury on that matter.
Defendant also argues the trial court failed to instruct on incidental and consequential damages in conformity with K. S. A. 84-2-715. Our review of instruction No. 11 discloses that the trial court did instruct substantially in the language of the statute as to consequential damages, and its failure to include an instruction on incidental damages would not be prejudicial to defendant.
In defendant’s third point on appeal he argues the trial court erred in instructing the jury on fraud and punitive damages. Instruction No. 12 states:
“No. 12
“If you find that Plaintiff is entitled to recover actual damages and you also find that the conduct of Defendant was willful or constituted fraud, then in addition to the actual damages to which you find Plaintiff entitled, you may award Plaintiff an additional amount as punitive damages in such sum as you believe will serve to punish Defendant and to deter others from like conduct, not to exceed $10,000.00 the amount prayed for by Plaintiff.
“A willful act is one indicating a design, purpose, or intent on the part of a person to do wrong or to cause an injury to another.”
Defendant objected at trial to the giving of the instruction for the reason no fraud was proved; hence, punitive damages were not proper under the facts of the case. Defendant correctly states the law to be that the failure to recover actual damages precludes the recovery of punitive damages. (See, McDonald v. Bauman, 199 Kan. 628, 433 P. 2d 437; Schumock v. Meerian, 175 Kan. 8, 259 P. 2d 173.) Nevertheless, this rule would not operate to bar recovery of punitive damages by plaintiff since it was determined that plaintiff was entitled to recover actual damages.
Defendant does not object to the substance of the instruction given by the trial court, but to the sufficiency of the evidence to justify giving the instruction. As plaintiff points out, the actual wording of the court’s instruction came from PIK [Civil] 9.44 (Punitive Damages) and 3.03 (Wilful Conduct). The instruction is in conformity with the general rule that damages for breach of contract are limited to pecuniary losses sustained, and exemplary or punitive damages are not recoverable in the absence of an independent tort. (Service Oil Co., Inc. v. White, 218 Kan. 87, 542 P. 2d 652; Gonzalez v. Allstate Ins. Co., 217 Kan. 262, 535 P. 2d 919; Hess v. Jarboe, 201 Kan. 705, 443 P. 2d 294; Mabery v. Western Casualty and Surety Co., 173 Kan. 586, 250 P. 2d 824; Moffet v. Kansas City Fire & Marine Ins. Co., 173 Kan. 52, 244 P. 2d 228.) Defendant contends there was no evidence to support a finding of an independent tort, nor was there evidence of fraud or willful misconduct.
After reviewing the entire record we are satisfied there was sufficient evidence from which the jury could conclude the conduct of defendant was willful or fraudulent. Plaintiff testified he told defendant he wanted the cattle for breeding purposes and if they were not bred he would-have no use for them whatsoever. Despite defendant’s assurances that the cows were bred and not more than seven years old, none of the cows actually calved by April 15, 1973, the date warranted. In addition, the veterinarian testified that forty of the cows were older than represented by defendant. The cumulative effect of the evidence, both in the form of testimony and exhibits, is to show an intentional and willful misrepresentation on the part of defendant in order to induce plaintiff to purchase the cows. Ry its verdict the jury so found and under the circumstances we cannot say as a matter of law that it was error for the trial court to instruct on punitive damages.
Defendant’s fourth point on appeal raises the question of whether the trial court erred by refusing to submit certain interrogatories to the jury which dealt with the problem of notice. In view of our determination that notice was not a proper issue before the court, it was not error for the court to refuse to submit interrogatories dealing solely with that issue.
As his fifth and final point defendant argues the evidence is insufficient to support the jury’s award of $22,000 actual damages and $3,000 punitive damages. Any verdict or finding of a jury cannot be disturbed by this court on appeal if there is substantial competent evidence in the record to support it. (McCarthy v. Tetyak, 184 Kan. 126, 334 P. 2d 379.) We have heretofore decided that the trial court properly instructed the jury as to the measure of damages. Plaintiff was entitled to actual damages for breach of warranty equal to the difference between the value of the goods at the time of delivery and the value had they conformed to the warranty, plus any consequential damages resulting from the breach. The record contains the testimony of plaintiff regarding the damages incurred as a result of defendant’s breach of warranty. Defendant complains that the loss of the calf crop and feed costs were not proper elements of damages to be considered by the jury in computing their award.
As to the question of awarding damages for the loss of calf crop, the record confirms that plaintiff told defendant he wanted the cows strictly for breeding purposes, and if they were not bred the cows would be of no use to him. Under these circumstances, we believe it was within the discretion of the jury to award a reasonable amount as damages for the loss of profits expected from the calves. Cases indicating that the loss of offspring is a proper item of damages under appropriate circumstances are: Broquet v. Tripp, 36 Kan. 700, 14 Pac. 227; Bosscher v. Leenders, 49 Wash. 2d 397, 301 P. 2d 1080 (1956); and Boylan v. McMillan, 137 Iowa 142, 114 N. W. 630 (1908).
There is also authority for the award of damages to cover feed costs in caring for livestock which were unable to perform as warranted. (Cooper v. Ragsdale, 96 Kan. 772, 153 Pac. 516; Hostetler v. Bartholomew, 95 Kan. 217, 147 Pac. 1134; Turner v. Kunde, 256 Iowa 835, 128 N. W. 2d 196 [1964]; Balch v. Newberry, 208 Okla. 46, 253 P. 2d 153 [1953]; Loisseau v. Gates, et al., 31 S. Dak. 227, 140 N. W. 258 [1913].) Under the facts presented in the record we conclude the cost of feed was a proper item of damages to be considered by the jury.
We find no error in the jury’s award of damages, both actual and punitive. The judgment of the lower court is affirmed.
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The opinion of the court was delivered by
Kaul, J.;
On February 23, 1973, the Nelson Pharmacy at 9th and Armstrong, Kansas City, Kansas, was robbed by three men, at least two of whom were armed with small caliber handguns. Defendant-appellant, Douglas Burks, was charged and convicted by a jury of three counts of aggravated burglary (K. S. A. 21-3427) as a result of his alleged participation in the incident. Also convicted in the same trial was David Jackson, whose appeal to this court is reported as State v. Jackson, 218 Kan. 491, 543 P. 2d 901.
The evidence adduced at trial showed that at 3:45 p. m. on the date mentioned three armed individuals entered the east door of the pharmacy and ordered everyone in the store to get on the floor. One of the men then jumped over the counter and began going through the cash registers. The robbers also went to the narcotics cabinet and proceeded to remove various drugs. While the men were looking through some pill bottles the pharmacist heard one of them ask, “Where is the Tuinal?” He pointed in a particular direction and then heard more bottles being rattled. At some point during the robbery one of the men opened the pharmacy safe, triggering an automatic silent alarm.
The robbers took over $100.00 from the store’s cash registers and a sum less than $50.00 and three bank deposit slips from the pharmacist’s billfold. Also, during the course of the robbery a total of $80.00 was taken from the person of a customer, Ernestine Anderson; a yellow pocketknife from Forrest Anderson, another customer; and three dollars from Steve Gunya, an employee.
After procuring the cash and other articles the three men exited through the same east door they had used to enter the store. Gunya testified he heard the bells ring on the east door, indicating the robbers’ departure, and in “just a matter of seconds” heard tires squealing. He then jumped and saw a police car going backwards down Armstrong Street.
The police car, which timely arrived at the crime scene, was driven by Officer Duane A. Lee of the Kansas City Police Department. He testified he arrived at the location at approximately 3:45 p. m. and observed three Negro males exiting the east door of Nelson’s Pharmacy. Defendant was identified by Officer Lee as being one of these men and was carrying a large brown plastic shopping bag. When Lee yelled to the men to halt, they took off running. He pursued in reverse gear in his patrol car. During the chase one of the men escaped and the defendant dropped the bag he was carrying in a neighboring yard. Lee maintained visual contact with the defendant and David Jackson and chased the pair into an alley near the Kansas City Star Building. He said he lost sight of the pair for only a few seconds, when they went behind a garage, but immediately regained visual contact.
At this point in time Officer Timothy J. Hausback was converging on the alley from another direction. As he entered the alley he observed the two suspects running down the alley, but they stopped when they saw him. The individuals then jumped over a wall and ran into a nearby garage. Hausback pursued the pair into the garage and observed the defendant digging a hole in the dirt floor with his hands. When he said “Police” and told them to raise their hands the defendant put his gun in the hole and Jackson dropped his gun. In addition to recovering the weapons, a total of $123.25; a yellow pocketknife; and three deposit slips were taken from Jackson’s pockets.
Richard Hood, a reporter for the Kansas City Star, who happened to be in the alley that afternoon for an unrelated reason, was able to corroborate much of the officers’ testimony.
At the trial Lee was able to identify the defendant and his co-defendant, David Jackson, as two of the men he saw running from the pharmacy. However, none of the other witnesses at the crime scene saw the robbers long enough to be able to give a positive identification. These witnesses only knew the robbers were black.
Following a denial of defendant’s motions for a judgment of acquittal and for a new trial, he brings the instant appeal wherein he contends that the prosecution prejudiced the jury by using evidence that was of an ambiguous and circumstantial nature which could not be admitted and was prejudicial to the defendant. In this point defendant refers to the three deposit slips allegedly taken from the pharmacist, Tony Distefano, and found by police officers on the person of defendant’s accomplice, David Jackson. The trial court excluded these exhibits, finding:
“. . . There is nothing on these exhibits to indicate that these were deposited to the account of Nelson Pharmacy, and even Mr. Distefano could not positively identify these. . . .”
After the removal of these items from the jury’s consideration, there is no indication in the record that further reference thereto was made by the state.
Essentially, the same point of error was presented as point three in the Jackson appeal wherein it was treated as a question of prosecutorial misconduct. The excluded evidence was said not to be inherently inflammatory and references to it were not prejudicial. Tested by what was said concerning a similar claim in State v. Campbell, 210 Kan. 265, 500 P. 2d 21, we held Jackson’s contention to be without merit. What was said in the Jackson opinion is equally applicable here.
Defendant next contends the trial court erred in failing to sequester the jury because one of the state’s witnesses was a reporter for the Kansas City Star who covers criminal trials in Wyandotte County. The point is identical to the first contention raised in Jackson. What was said in dismissing the contention in the Jackson appeal applies with equal force in the case at bar.
Defendant states his next contention in these words:
“Trial publicity was highly unfavorable to the defendant because one of the State’s witnesses was Richard Hood, Reporter for The Kansas City Star.”
He argues that the jury was subjected to undue influence, to-wit:
“. . . Because of his employment jurors would rely heavily on Mr. Hood’s integrity and his access to records and information.”
There was no trial publicity reproduced in the record and defendant fails to support his contention by any showing of actual prejudice. Defendant cites no authority for the disqualification of a witness merely because he happens to be a newspaper reporter. The contention is without merit.
In his next two contentions, defendant challenges the aiding and abetting instruction given by the trial court and asserts that he should not have been charged on three counts for his participation in what he says was only one transaction. The identical contentions were considered and held to be without merit in the Jackson opinion.
Defendant’s final contention is that the state failed to sustain its burden of proof. There is likewise no merit in this point. The defendant and David Jackson were caught with the robbery weapons and part of the proceeds of the crime after a hot pursuit immediately following the commission of the crimes. The police maintained practically unbroken visual contact with defendant and Jackson from the crime scene to the place of arrest, and observed defendant drop the plastic bag he was carrying in a nearby yard. With this physical evidence and the undisputed testimony of the police officers in the state’s case, the jury could not reasonably have found the defendant to be innocent.
The evidence is to be viewed within the context of our longstanding rule governing appellate review of criminal cases which was restated in the recent case of State v. Brown, 217 Kan. 595, 538 P. 2d 631, where we held:
“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 when viewed in the light most favorable to the state.” (Syl. 5.)
The judgment is affirmed.
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The opinion of the court was delivered by
Schroeder, J.:
This is an action by the purchasers of real estate who paid the full purchase price, but the sale was never consummated and title never transferred to the plaintiffs. Upon refusal to return the funds after demand the purchasers sued the sellers, the real estate agents, the title insurance company and its agent and a mortgage company dealing with the funds. Some defendants were sued in contract and some in tort. On trial to a jury a verdict was returned for the plaintiffs against some of the defendants for actual and punitive damages. Some of the defendants have duly perfected an appeal, and the plaintiffs have cross-appealed, raising various issues.
Wayne L. and Margaret W. Ford (plaintiffs-appellees and cross-appellants) decided to purchase a new home. The Fords looked at many homes with Mr. Walker, a salesman for Barkyoumb Realtors. The Fords located a house at 7826 Haskell, Kansas City, Kansas, which they liked.
That house was owned and occupied by Jesse H. Clay, Jr., and Connie G. Clay (defendants-appellants). On October 25, 1971, the Clays had purchased, by warranty deed, the property from Larry J. and Doris Faye Slavens. At that time the Clays mortgaged the property to Empire Mortgage and Investment Co., Inc., (defendant) (hereafter Empire) in the sum of $23,000.00 to pay the Slavens and to remove a construction loan placed on the property by the Slavens in the amount of $23,000.00. Empire failed to record the October 25, 1971, deed from the Slavens to the Clays and the mortgage given by the Clays. Its failure to record these documents was not known by either the Clays or the Slavens. Thus the record title to the property at 7826 Haskell continued to be vested in the Slavens with the Slavens’ construction mortgage to Empire and the subsequent assignment of that mortgage to the Wornall Bank being shown on the record title. On October 25, 1971, there were no judgments or suits pending against the Slavens, unpaid bills, or any other obligations which could be the basis for mechanics’ liens. However, after the October 25, 1971, sale of the 7826 Haskell property to the Clays, the Slavens had judgments entered against them, and suits pending against them in the Wyandotte County District Court. A title search would, therefore, indicate serious title deficiencies.
On March 28, 1972, the Clays, thinking they had legal title, entered into a written agreement with the Fords by which the Clays agreed to sell the 7826 Haskell property for $28,000.00. This sum represented the majority of the Fords’ life savings, and at the time of purchase Mr. Ford had been recently retired because of ill health. By the terms of the written agreement the Fords were to receive a good and sufficient warranty deed to the 7826 Haskell property free of liens or other title defects, and were to receive a proper owners’ title policy insuring their title.
The Fords made a $1,500.00 down payment to Barkyoumb Realty. After receiving the down payment, Roy Barkyoumb telephoned Guarantee Abstract and Title Co., Inc., (defendant-appellant) (hereafter Guarantee) to order an owners’ title insurance policy from Chicago Title Insurance Company. Guarantee is an agent for Chicago Title Insurance Company for the purpose of issuing title insurance policies and for handling all written transactions in the furtherance of issuing a title insurance policy. Mr. Barkyoumb talked with Edward Fogarty, house counsel for Guarantee, and one of two persons in the Guarantee office authorized to issue Chicago title insurance policies. Mr. Barkyoumb testified that Mr. Fogarty advised him in their first conversation concerning the matter there was a deed in escrow which predated judgments and pending lawsuits against the fee titleholders, the Slavens, and that said deed would clear the title of any clouds. Mr. Fogarty is reported to have assured Mr. Barkyoumb the title company would issue an owners’ title policy and that Mr. Fogerty would take care of any technical parts of the transaction. Mr. Barkyoumb ordered the title policy in question on that basis. Mr. Fogarty was aware of the unrecorded deed from the Slavens to the Clays held in escrow at the Wyandotte County title company because he had cleared the title on another piece of property the Slavens were selling in Wyandotte County.
While talking to Mr. Barkyoumb, Mr. Fogarty took the order for a Chicago title insurance policy and made entries on a Chicago title application form. Mr. Zimmerman, vice-president of Guarantee and the other person authorized to issue Chicago title insurance policies, testified it is good title practice to get the legal description of the property, the name of the seller and the name of the buyer, the purchase price and the name and address of the party or parties to whom the title report should be forwarded. In the instant case, Mr. Fogarty failed to note the Clays were the sellers on the Chicago title application form, and he failed to note the date the order was placed. Since the Clays’ name did not appear on the Chicago title insurance application form, or on any recorded deed, the title company ran no check under their name with regard to judgments, pending lawsuits or liens.
On April 14, 1972, Guarantee issued an instrument called “Chicago Title Insurance Company Title Report” which report is in effect a commitment of the Chicago Title Insurance Company to issue a title policy when the exceptions in the title report have been satisfied. The title insurance report, No. T-101002, showed the record title to the 7826 Haskell property to be in the Slavens’ names, that the property was mortgaged to Empire which had in turn assigned the mortgage to the Wornall Bank. The title report noted a judgment and three lawsuits against the Slavens pending in the Wyandotte County District Court. Two copies of this title report were mailed to Mr. Barkyoumb at his office. However, the Fords testified they never saw this title report.
At the end of the “Chicago Title Insurance Company Title Report” above the signature of Edward G. Fogarty “Attorney” is a notation reading as follows:
“Note: With reference to the foregoing Court Cases we are advised by Larry Slavens that there is a deed in escrow. We should be furnished with said deed for our examination and approval prior to recording together with an affidavit surrounding the escrow agreement as to the time and place of escrow and the time when deed was removed from escrow.”
Mr. Fogarty testified he advised Mr. Barkyoumb that if the deed from the Slavens to the Clays, which predated the lawsuits and judgment against the Slavens, was found to be properly in escrow, then the exceptions in the title report would be deleted from the title policy; he further advised that the noted exceptions could be deleted by causing the pending lawsuits to be continued for 120 days. In any event he advised Mr. Barkyoumb that the exceptions would be deleted one way or the other.
On April 17, 1972, Mr. Barkyoumb asked the Fords to come to his office to close the transaction. Mr. Barkyoumb advised the Fords that everything was in order, and that they would have a guaranteed and insured, title in a few days. The Fords then paid the balance of the $28,000.00 purchase price (the check was for $26,203.31 which was $28,000.00 less $1,500.00 down payment and pro rated taxes) and Mr. Barkyoumb gave them a “closing statement.” According to Mr. Ford, when the Fords gave their check to Mr. Barkyoumb, he informed them the money would go into his escrow account and would stay there until they were delivered a good title.
Thereafter, Mr. Barkyoumb requested and received a payoff letter from Empire. This letter was dated April 20, 1972. It disclosed the payoff on the Slavens’ loan (principal and interest) as of April 20, 1972, to be $25,721.85 with interest of $6.07 per day. On April 24, 1972, Mr. Barkyoumb used $25,746.13 of the Fords’ money from his escroto account to purchase a cashier’s check payable to Empire. On that same day he took this cashier’s check to Guarantee. There he talked with a secretary in the office and told her to give the check and the payoff letter from Empire to Mr. Fogarty, and to deliver the cashier’s check to Empire in exchange for a deed, a mortgage release and an affidavit establishing the escrow arrange ment. Mr. Barkyoumb said he took the cashier’s check to Guarantee because Mr. Fogarty had agreed to clear the clouds on title.
Mr. Fogarty was not in the office on April 24, 1972, so Carl Zimmerman, vice-president of Guarantee and the second person authorized to sign title insurance policies, verified the amount of the check with the payoff letter and interest, reviewed the file which included the title report and then went to the Empire Mortgage Company. Upon arriving at Empire, Mr. Zimmerman asked for Mr. Clark who had written the payoff letter to Mr. Barkyoumb. Mr. Clark was not in, so Mr. Zimmerman talked with Marion Jordan, president of Empire. Mr. Jordan was unfamiliar ivith the Clay file and could not find it at the time. Mr. Zimmerman explained his mission and Mr. Jordan told him he would relay the information to Mr. Clark who would produce the deed and the mortgage release. Since the cashiers check was only good up to April 24, (because of the interest factor) Mr. Zimmerman left the check with Mr. Jordan of Empire, taking a receipt in exchange therefore.
The Slavens’ mortgage assigned to the Wornall Bank shown on the title report was paid off by Empire and Guarantee received the mortgage release of the Slavens’ mortgage from Empire in the mail on April 25, 1972, but Guarantee never received the deed or the escrow affidavit necessary to establish good title in the Fords. (Note at this time Empire was holding an unrecorded mortgage of the Clays upon which the Clays were making payments to Empire on the same property.) Thus Guarantee had succeeded in clearing the Slavens’ property of a substantial mortgage lien by the use of the Fords’ money, but had not accomplished anything toward putting the Fords in title. As time passed and the Fords could not get a clear title, they wanted their escrow money back from Mr. Barkyoumb. who made demand upon Guarantee to either clear the clouds on the title and give a Chicago title policy or return the money represented by the cashier’s check. Guarantee in turn made demand upon Empire for return of the money. Guarantee was unable to get Empire to return the cashier’s check. Upon a similar formal demand by the Fords’ counsel, Guarantee refused to give a Chicago title policy or to return the money represented by the cashier’s check. Guarantee refused, advising that they could not establish good title, would not give a title policy and did not have the money to return.
It should be noted both Mr. Zimmerman and Mr. Fogarty claimed to be experienced professional title men. Furthermore, Guarantee held itself out as expert and creative in title work and advertised their claim of expertise to the public.
When this dispute went to trial, the Fords called M. E. Chadbom, the third generation owner and operator of an abstract business in Wyandotte County who had been actively engaged in that business for approximately 37 years. After being shown a copy of the Chicago Title Insurance Company’s title report and being advised that the contract sellers were the Clays, Mr. Chadbom testified that since the record fee title was shown to be in the Slavens, the fact the Clays were the contract sellers was a red flag, a danger signal, that the interest of the Clays would have to' be determined and they would have to divest themselves of whatever interest they had. Mr. Chadbom testified the cardinal rule in title work is to refrain from paying out the buyer’s money until the title company’s agent has the proper deed in his possession which puts the buyer in title. Mr. Chadbom characterized the conduct of Mr. Zimmerman in handing over the escrow money without ever seeing any deed as a reckless disregard of the property rights of the Fords and their money. He testified as a title insurance man he would occasionally leave funds at a lending institution in order to obtain a mortgage release, but not in order to obtain a deed.
Mr. Fogarty, Guarantees house counsel, testified that the mortgage on the property in question should not have been paid off until the instruments were obtained which would perfect title in the purchasers. It was his opinion as an attorney and an expert on abstract and title work that it was a serious title error to cause a mortgage on property to be paid off prior to being assured that there was good title to the property. Mr. Zimmerman agreed saying that the agent of a title insurance company who accepts a buyer’s money to pay off a mortgage or mortgage lien is absolutely responsible to the buyer to refrain from paying out the money until the title insurance company or its agent has a proper deed in its possession which puts the buyer in title.
The Fords sued the defendants, both jointly and severally, for actual damages in the sum of $28,000.00, plus interest from and after April 17, 1972, for consequential damages in the sum of $10,000.00 and for the costs of this action. The Fords sued the Clays and the Slavens on a contract theory based upon the con tract of sale. The Fords proceeded against Barkyoumb, Chicago Title and Empire on a tort theory based on negligence. At the pretrial conference the Fords were permitted to amend their first amended petition to allege, as journalized in the pretrial order, that Barkyoumb, Guarantee, Chicago Title and Empire “acted with a gross neglect of duty so as to evince a reckless indifference to the rights of the plaintiffs resulting in conversion of plaintiffs’ money and are responsible to plaintiffs for punitive damages.”
The trial court instructed compensatory damages which could be awarded against the defendants Barkyoumb, Guarantee, Chicago Title and Empire, if the jury found them liable, could not exceed the sum of $34,743.62; and, if liable for punitive damages, the amount awarded should not exceed $100,000.00 against Chicago Title, $50,000.00 against Guarantee, $25,000.00 against Barkyoumb and $25,000.00 against Empire.
Cross-claims and other matters were determined by the court without a jury, and except as may hereafter be noted, they are immaterial to the issues raised on appeal. Among the matters determined by the court prior to trial was a sale of the property in question. The court ordered the deed from the Slavens, as grantors, to the Clays dated October 25, 1971, be placed of record. Empire had lost or could not locate the original deed and a copy was ordered in its stead. This was done pursuant to the agreement of all of the parties to the action, and the property was later sold at a public sale. The net proceeds from the sale, $22,886.86, were paid into court “to await disposition by the Court to the persons entitled thereto after adjusting all equities between the parties as may be shown to the Court.” The court also declared null and void and of no further force and effect the unrecorded note and mortgage, dated October 25, 1971, executed and delivered by the Clays to Empire in the sum of $24,700.00.
This case went to trial before a jury on the same day the funds from the sale of the property were paid into court. The jury was never informed concerning the sale or of the proceeds of the sale.
On June 21, 1974, the jury returned a verdict in favor of the Clays and the Slavens and against the Fords on their contract action. However, the jury found for the Fords and against the defendants Barkyoumb, Guarantee, Chicago and Empire. Each of the four defendants was ordered to pay compensatory damages in the sum of $8,687.65. Furthermore, punitive damages of $12,500.00 were assessed against Barkyoumb; punitive damages of $35,000.00 were assessed against Guarantee; punitive damages of $70,000.00 were assessed against Chicago; and punitive damages of $20,000.00 were assessed against Empire.
Judgment was rendered on the above verdict June 21, 1974, as disclosed by a journal entry filed June 26, 1974.
Thereafter Guarantee and Chicago filed motions for a directed verdict in their favor notwithstanding the verdict or in the alternative for a new trial. These motions and others were heard by the trial court on August 2, 1974. The matters were taken under the advisement and on August 23, 1974, by a letter decision, the trial court reduced the punitive damages assessed by the injury against the defendant Barkyoumb to $5,000.00; against Guarantee to $25,-000.00; and against Chicago to $25,000.00. The court further ordered a distribution of the amount on deposit in the clerk of the district court’s office (largely from the sale of the 7826 Haskell property), less court costs, to be paid to the plaintiffs. However, the court further directed the clerk to credit the account of the defendants Barkyoumb, Guarantee, Chicago and Empire “with an amount equal to one-fourth of the amount distributed to the plaintiffs.”
The foregoing was journalized by a journal entry filed October 7, 1974. The journal entry recited, among other things, that all cross-claims of the respective defendants against any and all other defendants, except Guarantee’s cross-claim against Empire, were denied and disallowed. (Empire is apparently defunct because from this point in the record there is nothing further concerning Empire’s activity in the case.)
Guarantee and Chicago appealed contending they owed no money to the Fords, and that the trial court erred in awarding punitive damages. The Clays appealed from the order of the trial court distributing funds derived from the sale of the property, title to which had been cleared in their name, to the Fords. The Fords cross-appealed from the order of the trial court reducing the punitive damage awards against Guarantee and Chicago Title without the consent of the prevailing party. No appeals were taken by Barkyoumb, Empire or the Slavens. The Fords have not appealed from the judgments in favor of the Clays and the Slavens, absolving them from liability on the contract. The Fords did not appeal from the order of the trial court reducing the punitive damage award against Barkyoumb.
Aside from peripheral questions and the points asserted in the Clays’ cross-appeal, the basic legal issue presented on the facts in this case boils down to the validity of the Fords’ tort action against the title insurance company and its agent. The gravity of this basic issue involving title insurance companies is indicated by the failure of counsel for the appellees and exhaustive research by this court to uncover a bay horse case in American jurisprudence.
Prior to World War II in Kansas if the owner of real property desired to sell his property, he first entered into a preliminary agreement with the buyer and then arranged to prove his title by going to an abstractor to obtain an abstract or cause an existing abstract to be brought up-to-date. The abstract was delivered to the buyer who then hired an attorney to examine it and give him a written opinion identifying the fee title holder, noting any liens or encumbrances and making exception as to any title defects or faults commonly known as clouds on title. If there were no clouds on title and no liens, the transaction was ready to close and the buyer’s attorney prepared the deed, any other required instruments and a closing statement. Upon conveyance, payment and recording the transaction was complete. If there were liens not being assumed the owner either paid them or arranged for the buyer to pay them out of the purchase price and the transaction was ready for closing. If there were clouds on title, the owner hired an attorney to clear the title by such action as was necessary and to represent the owner at closing, after one or both attorneys had prepared the required papers. Ofttimes the funds required for closing were placed in the attorney’s hands to be held for subsequent distribution when the buyer was placed in title.
Under this so-called abstract method there was at least a buyer’s attorney involved who had examined the complete record history of the property and determined what must be done to place the buyer in good title. The attorney had a duty and professional responsibility to his client to examine the abstract skillfully, avoid any errors and omissions in his opinion and to avoid any mishandling of his client’s money.
In short, the buyer’s attorney had the duty to either place his client in good title or advise against the purchase. The abstractor performed the essentially mechanical function of making a complete search of the appropriate records and preparing an abstract of all instruments or proceedings concerning the property, without opinion or judgment on his part as to their sufficiency or legal effect. His sole responsibility was to accumulate an accurate and complete title record of the property.
In the 1950’s the use of abstracts to prove the seller’s title began to decline, particularly in the metropolitan areas of the state, and the combination of title report and a title insurance policy was increasingly substituted for that purpose. By the late 1960’s the transition was almost universal and the abstract method was rarely used in metropolitan areas.
Under the title insurance policy method a contract seller or his realtor goes to the local agent of a title insurance company and makes application for a title policy to be issued in the name of the purchaser in the amount of the purchase price. The local insurance agent requires certain minimum information to complete the title company’s application form: The name of the seller, the name of the buyer, the description of the property and the purchase price. It is important that this information be both obtained and noted on the application form: (1) So the local agent’s employee making the search for pending lawsuits, unpaid taxes, and judgments will look to the proper records under that name; and (2) so the employee making the title search will be alerted to a serious title problem if the seller’s name is at variance with the name of the record fee titleholder.
Armed with the above information from the application form an employee of the local agent for the title insurance company goes to the courthouse and in various offices proceeds to search out and examine all instruments and proceedings of record concerning the property. He is not making a search to accumulate the records in an abstract, but is in fact examining each instrument and proceeding, whether divorce, bankruptcy, tax foreclosure, mortgage foreclosure, probate estate, condemnation, partition or whatever to then and there form his opinion and judgment as to the sufficiency and legal effect of the same so as to pass good title in each instance. The former function of the buyer’s attorney in examining the abstract of title is now performed by the title insurance company’s examiner. The examiner also makes a search in the name of the record fee titleholder to determine if the property in question may be subjected to liens by reason of judgments, unpaid taxes or pending lawsuits.
The conclusions and findings of the examiner are then incorporated into the title insurance company’s title report commitment to the buyer showing: The description, the name of the record fee titleholder, any liens or encumbrances, any title faults or defects which must be cleared before the title company will insure the title without exception from coverage, and the purchase price. The title report is then forwarded to the parties in accordance with directions given by the applicant for the title policy (usually the realtor, seller or buyer).
If the title report indicates clouds on the title, they must be cleared to the title company’s satisfaction before the transaction can be closed and the title insurance policy issued. One or more persons, usually attorneys, employed by the local agent of the title insurance company will have been authorized by the title company to make the determination as to what procedures or instruments will suffice to clear the clouds on the title and to actually issue the company’s title policy.
In view of the foregoing practice it has become customary for realtors or lenders to place all or portions of the buyer’s purchase price money in the hands of the title insurance company’s local agent with oral or written instructions to disburse the same for payment of mortgage liens, taxes, etc., only at such time as the authorized employees determine that clouds on the title have been cleared, the buyer is in title and the title company is prepared to issue its title policy.
It is the contention of Chicago Title and Guarantee that title-insurance companies and their local agents, while holding the buyer’s money as aforesaid, having no direct relationship with the buyer, can have no duty to the buyer and are therefore not responsible for tort damages to the buyer irrespective of whether the buyer’s money is lost to him by reason of the title company’s direct violation of its instructions.
For the reasons hereafter assigned and the authorities cited we think the position taken by Chicago Title and Guarantee is untenable.
The rule applied in New Jersey is persuasive in our opinion, and we hold that a corporation organized for the purpose, among others, of examining and guaranteeing titles to real estate -and which in all matters relating to conveyancing -and searching titles holds i-tself out to the public, and assumes to discharge the same duties -as an individual conveyancer or attorney, has the same responsibilities and its duty to its employer is governed by the prin ciples applicable to attorney and client. (Sandler v. N. J. Realty Title Ins. Co., 66 N. J. Super. 597, 169 A. 2d 735 [1961], reversed on other grounds, 36 N. J. 471, 178 A. 2d 1; and Mezzaluna v. Jersey Mortgage, & c., Co., 109 N. J. L. 340, 162 Atl. 743 [1932].) In the two cases just cited the suit was based upon negligent title examination and not upon a title insurance policy. In the instant case, it should be noted, the action against Chicago Title and Guarantee is not based upon a title insurance policy.
In Mezzaluna v. Jersey Mortgage, & c., Co., supra, the defendant, a title guarantee company, was in the business of insuring titles and loaning money on bonds and mortgages from its surplus funds. The plaintiff owned land, upon which he was constructing an apartment house under contract with a general contractor, and applied to the defendant for a construction mortgage loan of $165,000.00. He signed one of the defendant’s application blanks “for a guaranteed mortgage loan, secured by a first mortgage” upon the premises he owned. A loan was granted and a fund to that amount set apart to be disbursed in making the proper payments on the building. For the title search and other services in the matter, plaintiff agreed to pay a fee of four and one-half per cent, which was deducted from the loan. Defendant negligently overlooked a defect in the filing of the building contract, whereby plaintiff was obliged to pay out a large amount of money to satisfy certain mechanics’ liens. The trial court found the defendant was negligent in not placing a first mortgage upon the property, and held as a matter of law:
“ ‘A corporation organized, among other things, for the purpose of loaning its surplus funds upon bonds, secured by mortgages and examining the titles thereto and charging a fee for so doing, assumes to discharge the same duties as an individual conveyancer or attorney and is subject to the same responsibilities. Those responsibilities are set forth in Jacobsen v. Peterson, 91 N. J. L. 404. In 1 Joyce on Insurance, § 309-a, we find the followings:
“ ‘ “A corporation organized for the purpose, among others, of examining and guaranteeing titles to real estate and which in all matters relating to conveyancing and searching titles holds itself out to the public and assumes to discharge the same duties as an individual conveyancer or attorney, has the same responsibilities and its duty to its employer is governed by the principles applicable to attorney and client.” ’ ” (pp. 343, 344.)
The Court of Errors and Appeals approved the trial court’s statement of the law and said in its opinion:
“Apart from the fact that there was a somewhat lengthy document signed by plaintiff as an application for the ‘guaranteed mortgage loan,’ and contain ing answers to numerous questions about the property and title, the transaction does not differ in substance from the ordinary construction loan made by a lawyer for a client with funds belonging to that client. It is common knowledge that owners contemplating the erection of a building with borrowed money will defer application for a mortgage loan in order to save interest and until the contract is on file and the building under way. The loan being granted and title approved and mortgage executed and placed upon record, the proceeds of that mortgage become the property of the borrower, subject usually to the fees and expenses of the lender’s lawyer for searching the title, &c.; and those proceeds the lawyer disburses as the agent, not only of his client who is lending the money and is entitled to such mortgage lien as contracted for, but also as the agent of the borrower, who has borrowed for a well-understood object, viz., to clear existing liens, and pay for his new building in such manner as to be protected against other liens not of his own making. In this phase of the matter, the borrower stands as though he had drawn the contract price out of his own balance at the bank and placed it in the custody of the lawyer to disburse to parties legally entitled thereto, and in connection with that duty to make sure that, the property is protected against mechanics’ liens. In other words, the lawyer, or as in this case the lender acting also as lawyer or title searcher, places the amount of the loan to the credit of the borrower, and is under the obligation to disburse it for the borrower’s benefit in paying for the new building. Taking the borrower’s fee for so doing, he becomes responsible for due care in that process of disbursement.” (pp. 345, 346.)
In Sandler v. N. J. Realty Title Ins. Co., supra, the plaintiff sought to recover under the second count for negligence of the defendant in making the title search which failed to reveal the defect in title. The examination and report on the title was said to be a transaction separate from the guarantee of title and that a separate charge was made therefore. Mezzaluna was cited and the rule there announced applied.
Where a title insurer presents a buyer with both a preliminary title report and a policy of title insurance two distinct responsibilities are assumed; in rendering the first service, the insurer serves as an abstractor of title and must list all matters of public record regarding the subject property in its preliminary report. When a title insurer breaches its duty to abstract title accurately it may be liable in tort for all the damages proximately caused by such breach. (Jarchow v. Transamerica Title Ins. Co., 48 Cal. App. 3d 917, 122 Cal. Rptr. 470 [1975]; and Hillock v. Idaho Etc. Trust Co., 22 Idaho 440, 126 Pac. 612, 42 L. R. A. N. S. 178 [1912].) Punitive damages are a portion of such tort liability. (Moe v. Transamerica Title Ins. Co., 21 Cal. App. 3d 289, 305, 98 Cal. Rptr. 547.) A few courts have held that when an abstractor errs in making or cer tifying an abstract of title, the negligent failure of the abstractor was a tort as well as a breach of contract, and the plaintff has the right to select which form of action he would pursue. (Chicago, R. I. & G. Ry. Co. v. Duncan, 273 S. W. 908 [Tex. Civ. App. 1925]; Viotti v. Giomi, 230 Cal. App. 2d 730, 41 Cal. Rptr. 345 [1964]; and Williams v. Polgar, 391 Mich. 6, 215 N. W. 2d 149 [1974].)
In Williams v. Polgar, supra, the court held third parties within a clearly foreseeable potential class of injured persons would have a cause of action in negligent misrepresentation against an abstractor for failure to. perform abstracting services in a diligent and reasonably skillful, workmanlike manner. (The case discusses both the requirements of privity of an abstractor and the tort and contractual liability of an abstractor and the appendixes set out the law of all fifty states.)
Under statutory law in Kansas regulating abstracting the abstractor and his sureties are liable on the abstractor’s bond for all negligent errors and omissions in an abstract, not only to the person who employed the abstractor, but also to all persons who purchase or invest in land relying on an abstract furnished for that purpose. (Arnold & Co. v. Barner, 91 Kan. 768, 771, 139 Pac. 404; and K. S. A. 58-2802, as amended.) On the facts in this case we are not called upon to determine whether the question of privity is resolved by the foregoing statute as to a title insurance company that makes a title search and report. Unfortunately statutes pertaining to title insurance companies do not touch upon the subject. (See, K S. A. 1975 Supp. 74-3901, et seq.; K. S. A. 74-4201, et seq.; K. S. A. 40-201, et seq.; K. S. A. 40-234b; 40-1102[1] [e]; and 40-1107a.)
On the issue here presented it is unnecessary to determine the precise time at which Barkyoumb became the agent of the Fords. It is clear when the Fords paid the balance of the purchase price of $28,000 to Barkyoumb at his office to close the transaction, and Barkyoumb in turn gave the Fords a “closing statement” with an assurance that the money would go into his escrow account until the Fords were delivered a" good title, Barkyoumb was then an agent of the Fords in the capacity of an escrow agent. One of the conditions of the escrow was to place title to the property in the Fords prior to a distribution of the funds.
There is a respectable line of authorities in this jurisdiction to the effect that the depositary of an escrow is the agent of both the parties thereto. (Davis v. Clark, 58 Kan. 100, 48 Pac. 563; Gault v. Hurd, 103 Kan. 51, 172 Pac. 1011; Smith v. Griffith, 105 Kan. 357, 184 Pac. 725; Southern v. Linville, 139 Kan. 850, 33 P. 2d 123; and Southern v. Chase State Bank, 144 Kan. 472, 477, 61 P. 2d 1340, 107 A. L. R. 944; and see Moe v. Transamerica Title Ins. Co., supra.)
In Nickell v. Reser, 143 Kan. 831, 57 P. 2d 101, the court discussed an escrow holder and ratification. The court there recognized Davis v. Clark, supra, for the proposition that an escrow holder is the agent of both parties, but it said the statement was true in a limited sense only. (Citing, Smith v. Griffith, supra.) In the opinion the court said: “To the extent the term agent is applicable it is a limited agency, with duties and powers limited to the terms of the escrow agreement.” (p. 835.) The court acknowledged that the escrow agreement may be in writing or in parol, or part in writing and part in parol. The court in Nickell concluded:
“, . . It is as well to treat him [the depositary] as just what he is, a third party to whom the principal parties to the contract have entrusted certain authority by the escrow agreement. . . (p. 835.)
In Smith v. Griffith, supra, the court described the depositary of an escrow and said the depositary is more than the agent of the vendor, but is the agent of both parties. It recognized the use of the term “agent” involved problems, but concluded:
“. . . The result is, a depositary is always something more or something less than an ordinary agent, and accuracy permits us to say no more than that the depositary is an intermediary between vendor and vendee, having the specific powers and duties created by the escrow agreement, and no others.” (p. 360.)
On the facts presented by the record herein, and the law heretofore cited, while Barkyoumb was the real estate agent of the grantors (the Clays), he was selected by the vendors and vendees as an intermediary between the parties to collect and hold the funds representing the purchase price of the property upon the express condition that the grantees (the Fords) be placed in title to the property prior to a distribution of the funds in accordance with the terms of the contract of sale.
Clothed with this authority, Barkyoumb was an agent for both the vendors and vendees when he engaged the services of Guarantee, through Fogarty who was Guarantee’s house counsel, to put the Fords in title to the property.
On the facts in this case Chicago Title Insurance Company, acting through Guarantee Abstract and Title Co., Inc., as agent, was organized for the purpose of examining and guaranteeing titles to real estate and in all matters relating to conveyancing and searching titles held itself out to the public and assumed to discharge the same duties as an individual conveyancer or attorney. It therefore had the same responsibilities and its duties to the Fords are governed by the principles applicable to attorney and client. It became responsible for due care in the process of disbursing the funds representing the purchase price for the real property in question.
The court disbarred an attorney in State v. Barrett, 207 Kan. 178, 483 P. 2d 1106, who while acting as an escrow agent misappropriated the funds. It is established in this jurisdiction that the relationship of an attorney to his client is fiduciary in character, binding the attorney to the highest degree of fidelity and good faith to his client on account of the trust and confidence imposed. (Yeamans v. James, 27 Kan. 195; Haverty v. Haverty, 35 Kan. 438, 11 Pac. 364; Cunningham v. Jones, 37 Kan. 477, 15 Pac. 572; Holmes v. Culver, 89 Kan. 698, 133 Pac. 164; Wigton v. Donnelly, 122 Kan. 796, 253 Pac. 400; Yeoman v. Morris, 135 Kan. 566, 11 P. 2d 683; Kirwin v. McIntosh, 153 Kan. 395, 110 P. 2d 735; Henks v. Panning, 175 Kan. 424, 264 P. 2d 483; and Scott, Administrator v. Farrow, Executor, 192 Kan. 666, 677, 391 P. 2d 47 [Schroeder J., dissenting].)
In Lindholm v. Nelson, 125 Kan. 223, 264 Pac. 50, the court held:
“A fiduciary relation does not depend upon some technical relation created by, or defined in, law. It may exist under a variety of circumstances, and does exist in cases where there has been a special confidence reposed in one who, in equity and good conscience, is bound to act in good faith and with due regard to the interests of the one reposing the confidence.” (Syl. 3.)
Another case in point is Miller v. Henderson, 140 Kan. 46, 33 P. 2d 1098.
Our court has approved the recovery of actual damages as well as punitive damages in actions involving breach of a fiduciary duty. (Beverly v. McCullick, 211 Kan. 87, 505 P. 2d 624; and see, Koch v. Merchants Mutual Bonding Co., 211 Kan. 397, 507 P. 2d 189; and 14 Washburn L. J. 466 [1975].)
In the instant case Chicago Title through the actions of Guarantee in issuing the title report had a fiduciary obligation and became expressly committed to the Fords who were named in the title report as purchasers. They accepted $25,746.13 of the Fords’ money knowing it was the lion’s share of the $28,000.00 purchase price, and they accepted the money with express instructions as to its disbursal. These title companies were fiduciaries and owed the Fords a duty to handle their money with a high degree of care, a duty to absolutely avoid disbursing the Fords’ money to pay off a lien on the property until they were assured the Fords were in good title. Instead they immediately disbursed Fords’ money contrary to instructions, contrary to the cardinal rule of title practice and under circumstances which involved a high degree of risk that the Fords’ money would be lost to them.
Chicago Title and Guarantee contend there was no competent substantial evidence to prove a case warranting the granting of punitive damages against them. This point is related directly to their objection to Instruction No. 17, which in pertinent part reads:
“Plaintiffs make claim against defendants Barkyoumb, Guarantee Abstract and Title Co., Chicago Title Insurance Company and/or Empire Mortgage and Investment Co. for punitive damages in addition to compensatory damages. The law does not require a specific finding of an intentional and ruthless desire to injure in order to sustain an award of punitive damages. Plaintiffs’ burden of proof in this regard is sustained upon a showing that such neglect of duty by the wrongdoer or wrongdoers as evinces a reckless indifference to the rights of others. ‘Reckless indifference’ under Kansas law lies between negligence on one hand and willful or malicious conduct on the other. It is more than negligence and less than willfulness. If you find a defendant to be guilty of negligence as hereinbefore defined, and if you find a defendant guilty of ‘reckless indifference’ in handling plaintiff’s money, and if you believe that justice and the public good require it, you may, in addition to any damages to which you find plaintiffs entitled, award plaintiffs an amount which will serve to punish that particular defendant and to deter others from the commission of like offenses.
“If you allow punitive damages in this case against said defendants, or any of them, then in assessing such damage you may take into consideration the following items:
“1. The probable and reasonable expense of the litigation including attorneys’ fees, any expert witness fees and the inconvenience and time involved in preparing for trial.
“2. Such amount as will deter said defendants, or any of them, from such future conduct.
“3. An amount as shall be an example to others and deter them from such conduct.
“The amount shall not be so small as to be trifling nor so large as to be unjust, but such as candid and dispassionate minds may approve as a punitive example and as a warning to others against a similar lapse of duty. You should separately consider the wealth or lack of wealth of each of said defendants in making any determination of punitive damages against said defendants separately.”
After reviewing many Kansas cases on the subject of punitive damages this court in Watkins v. Layton, 182 Kan. 702, 324 P. 2d 130, said:
“We think it clear that the law does not require a specific finding of an intentional and ruthless desire to injure in order to sustain an award of punitive damages. The burden of proof is sustained, once the injured party shows such gross neglect of duty as to evince a reckless indifference of the rights of others on the part of the wrongdoer. . . .” (p. 708.)
The trial court by Instruction No. 17, aside from rhetoric, adequately instructed the jury in accordance with the law set forth in Watkins v. Layton, supra, and then proceeded to define “reckless indifference.” This definition was taken from Newman v. Nelson, 350 F. 2d 602, 604, decided on Kansas law in the Tenth Circuit Court of Appeals. It cannot be said the trial court’s definition of “reckless indifference” is erroneous.
The objection of Chicago Title and. Guarantee as to the law stated in Instruotion No. 17 is founded upon Bailey v. Resner, 168 Kan. 439, 214 P. 2d 323, where the court said:
“. . . [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 necessarily 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.” (p. 442.)
From the foregoing it is argued before an act may be considered wanton it must contain two separate elements, namely (1) a conscious realization of the imminence of danger and (2) a reckless disregard and complete indifference 'and unconcern for the probable consequences thereof. As applied to Instruction No. 17, the argument on the foregoing quote fails to give sufficient consideration to the last clause thereof and the law set forth in Watkins v. Layton, supra.
We find Instruction No. 17 given by the trial court adequately informed the jury upon what basis punitive damages could be awarded. It is the only instruction in the record to which an objection was lodged by Guarantee and Chicago Title prior to the giving of the instructions to the jury.
While there is very little conflict in the evidence, on the facts as heretofore related, the prevailing parties in the trial court are entitled to have it viewed in the light most favorable to them. It would serve no purpose to review the evidence again to advance the tort theory upon which the Fords sought recovery against Guarantee and Chicago Title. Suffice it to say the trial court fully instructed on negligence without objection. In our opinion the evidence established that Chicago Title, acting through its agent Guarantee, acted not only negligently but with such gross neglect of duty as to evince a reckless indifference to the property rights of the Fords. Accordingly, the trial court did not err in overruling their motions for a directed verdict notwithstanding the jury verdict, or in the alternative for a new trial.
Chicago Title and Guarantee argue that the disbursement of a buyer’s money to pay off a mortgage lien, prior to being assured that the buyer is in good title, cannot be reckless conduct because it is common practice for title people to disburse the buyer’s money to a mortgagee on the expectation of receiving the mortgage release at a later date.
The Kansas Real Property Law on the release of a mortgage is covered by K. S. A. 1975 Supp. 58-2309a. In view of the penalty, attorneys fees and damages available under this statute for the refusal of a mortgagee to cause satisfaction of a mortgage to be entered of record forthwith upon payment there is actually no risk involved in paying off a mortgage lien prior to receiving the written release of the same. When this is contrasted with action taken by Mr. Zimmerman in this case in paying out the buyer’s money with only the hope or expectation of obtaining a subsequent deed which puts the buyers in title, the spurious nature of the argument becomes apparent. If the deed is not forthcoming the buyer is faced with a difficult and ofttimes questionable and certainly expensive lawsuit for specific performance. If the seller’s title is bad no court can create a good title in the seller. Therefore, it is extremely risky to pay out the buyer’s money or in any way jeopardize the buyer’s position before being assured that the buyer is in title. Furthermore, Mr. Zimmerman had no assurance that he would get a deed from the Clays. No title search had been made under the names of the Clays to determine whether or not there would be additional clouds on title. It is readily apparent from the record Mr. Zimmerman knew the Clays were the sellers, even though their names were not mentioned on the preliminary title report, because Mr. Zimmerman in talking with Mr. Jordan of Empire directed Mr. Jordan to the Clays’ file, which Mr. Jordan was unable to locate.
In our opinion the evidence in this case warranted a substantial award of punitive damages. The evidence disclosed Chicago Title to have a net worth in excess of $31 million, and Guarantee to have a net worth in excess of $336 thousand. The continued refusal of these substantial companies to issue a title policy or return the Fords’ money, after admittedly disbursing the same in violation of their fiduciary instructions, and in violation of the cardinal rule of title practice, was, to say the least, such gross neglect of duty as to evince a reckless indifference of the rights of the Fords, which deprived them of any opportunity to buy and live out their remaining time in a modest retirement home.
Guarantee and Chicago Title contend it was error to overrule their motion for a directed verdict when the trial court found there was no conversion by them, and that this was the only grounds upon which the Fords based their cause of action against them.
While it is true the trial court indicated during the trial that the Fords’ evidence did not establish a conversion, this does not alter the allegations of the amended petition as modified by the pretrial order and the instructions upon which the case was submitted to the jury. In substance the charge is that the amended petition fails to allege any acts of negligence by the title companies. This contention lacks merit. The amended petition contains the following factual allegations of negligence among others:
"5. On April 24, 1972, defendants Barkyoumb used $25,746.13 of plaintiffs’ aforesaid money to purchase a cashier’s check payable to defendant Empire and on said day caused said cashier’s check to be delivered into the possession and control of defendant Chicago Title and defendant Guarantee, acting both individually and as the Kansas City division and agent of defendant Chicago Title. That defendant Chicago Title and defendant Guarantee received plaintiffs’ money as fiduciaries with instructions as to its disbursement. Thereafter on said date defendant Chicago Title and defendant Guarantee caused plaintiffs’ money to be put out of its possession and control in a manner contrary to the disbursement instructions by causing same to be delivered into the possession and control of defendant Empire. . . .
“6. At all times subsequent to April 14, 1972, defendants Barkyoumb, Chicago Title, Guarantee, Empire and Slavens were fully advised and aware of numerous and various title defects in the above-described property which had not been corrected and satisfied and said defendants and each of them should not have allowed plaintiffs’ money to be delivered out of their respective possession and control for any purpose and particularly for the purpose of paying off a lien against the above-described property until such time as said defendants and each of them was assured of the existence of and had possession of and/or was absolutely assured of the availability of a warranty deed and owner’s title policy to the plaintiffs as hereinbefore described. . . .
a a # a a
“8. By reason of the aforesaid the plaintiffs have suffered grievous consequential damages and although demand has been made on the defendants and each of them, plaintiffs’ monies have not been returned nor have plaintiffs received a warranty deed and owner’s title policy as aforesaid.”
While it is trae that the Fords contended in their amended petition as modified at pretrial that the above acts of negligence constituted a conversion, this is not fatal to their lawsuit. The trial court was hung up on a belief that conversion of money would not lie unless a party so charged retained the money and was thereby profited. This court has held a defendant bank to be guilty of conversion when it disbursed the plaintiffs’ money contrary to express instructions. (Drumm-Standish Com. Co. v. Farmers State Bank, 132 Kan. 736, 297 Pac. 725.)
Actually, the conversion argument is insignificant. The specified wrongful act set forth in the Fords’ amended petition, as it was again amended at the pretrial, remained the same whether the conclusion to be drawn from them was designated to constitute a conversion or some form of negligence.
The Fords’ pleadings as amended at pretrial were summarized by the trial court in its instructions to the jury without objection. Among the allegations in the summary it was said Chicago Title and Guarantee had “acted with gross neglect of duty so as to evince a reckless indifference to the rights of the plaintiffs resulting in conversion of plaintiffs’ money.” Instruction No. 17 indicates the evidence to support the alleged wrongful acts of Chicago Title and Guarantee was submitted to the jury to determine whether they acted with such neglect of duty as to evince a reckless indifference to the property rights of the Fords. The verdict of the jury resolved this issue.
Chicago Title and Guarantee contend it was error to permit the Fords’ expert witness, M. E. Chadborn, to testify that their conduct was a reckless disregard of the property rights of the plaintiffs when this was the ultimate issue to be tried by the jury, and that there was no competent evidence on which to base such an opinion.
Mr. Chadborn was a local title insurance man with a life-long work and experience in abstract and title matters as heretofore related. The testimony of an expert witness on this point is controlled by K. S. A. 60-456 (d). It provides:
"Testimony in the form of opinions or inferences otherwise admissible under this article is not objectionable because it embraces the ultimate issue or issues to be decided by the trier of the fact.”
Notwithstanding the foregoing statute, Chicago Title and Guarantee contend that Chadborn should not have been permitted to give his opinion as to the ultimate issue to be decided by the jury, because title work and procedures are not of sufficient complexity and beyond the common knowledge and experience of the ordinary person so as to aid the jury in the interpretation of facts or assist the jury in understanding the material evidence to determine whether or not the work and procedures were done properly. The three automobile cases relied upon, Frase v. Henry, 444 F. 2d 1228 (10th Cir. 1971); Ziegler v. Crofoot, 213 Kan. 480, 516 P. 2d 954; and Massoni v. State Highway Commission, 214 Kan. 844, 522 P. 2d 973, are not persuasive in the instant case. The work of a real estate title man is extremely complicated and technical in the sense that he must have a complete and detailed background and understanding in all phases of real property law and security transactions, he must be skilled in the myriad of procedural and substantive requirements of all of the various types of court proceedings which effect or cause the transfer of real property titles, he is required to understand and know the legal effect of all of the various instruments, which effect or transfer real property titles or any interest therein, and he is required to know the subtle timing required so as to guide the various steps involved in a real property sale closing and place them in their proper order so as to safeguard the interest of all parties involved. This is beyond the common experience and knowledge of the ordinary person who would have no realistic impression as to what acts are in fact title work errors, and as to the seriousness of a particular type of title work error.
Under the circumstances the expert testimony of Mr. Chadborn was properly admitted in evidence and the jury was properly instructed that they could either accept or reject the expert testimony or give it such weight as they deemed proper. There was evidence in the record to support his opinion testimony.
Chicago Title contends it was error for the trial court to overrule its motion for a directed verdict because there was no clear and convincing evidence as to the agency relationship between Chicago Title and Guarantee, and further that there was no showing that its alleged agent was acting within the scope of its agency at the times complained of by the Fords. (Citing Rodgers v. Arapahoe Pipe Line Co., 185 Kan. 424, 345 P. 2d 702; Hughes v. Jones, 206 Kan. 82, 476 P. 2d 588; and Jacobson v. Parrill, 186 Kan. 467, 351 P. 2d 194.)
On the record before this court the foregoing point is controlled by Greep v. Bruns, 160 Kan. 48, 55-56, 159 P. 2d 803, where the court approved the following rule:
“ ‘The liability of the principal for the acts and contracts of his agent is not limited to such acts and contracts of the agent as are expressly authorized, necessarily implied from express authority, or otherwise actually conferred by implication from the acts and conduct of the principal. All such acts and contracts of the agent as are within the apparent scope of the authority conferred on him, although no actual authority to do such acts or to make such contracts has been conferred, are also binding upon the principal. Apparent authority, or ostensible authority, as it is also called, is that which, though not actually granted, the principal knowingly permits the agent to exercise, or which he holds him out as possessing. Accordingly, as defined by the American Law Institute, an apparent agent is one who, with or without authority, reasonably appears to third persons to be authorized to act as the agent of another.’ ”
Subsequent cases in which the foregoing rule has been discussed with approval are cited in Brown v. Wichita State University, 217 Kan. 279, 286, 540 P. 2d 66, aff’d. in part, 219 Kan. 2, 547 P. 2d 1015.
The title report issued to the Fords by Chicago Title contained the following language: -
“Chicago Title Insurance Company
Kansas City Division
Title Report
“Note: Direct all inquiries relating to this report to the issuing agent:
GUARANTEE ABSTRACT & TITLE CO., INC.
727 Ann Avenue
Kansas City, Kansas 66101
(913) 321-0324
Mr. Roy Barkyoumjb, Realtor,
1421 North 38th,
Kansas City, Kansas 66102
Purchasers: Wayne L. Ford
Margaret Ford”
The application form which Guarantee regularly used to initiate the proceedings preliminary to the issuance of a Chicago Title Insurance Company title insurance policy contained the following:
“Application for Title Insurance to Chicago Title Insurance Company”
The evidence disclosed that Guarantee as a local agent and a division of Chicago Title prepared and issued Chicago Title Insurance Company’s title insurance policies but did not prepare and issue policies for any other company. From the admissions of Mr. Zimmerman, as vice-president of Guarantee, and the testimony of Mr. Chadborn, the expert witness, the evidence disclosed that from the time Guarantee took an order for a title insurance policy and filled in the application form it was acting as the agent of Chicago Title. When one calls the local agent of a title insurance company to order a title insurance policy, the agent fills out an application form and runs a title search on the property for the purpose of preparing a title report, and thereafter when the exceptions, if any, have been cleared the title policy is issued. All of these steps are preliminary to the purchase of a title policy. Guarantee was admittedly the authorized agent of Chicago Title to issue its title policies.
There was no contrary evidence before the jury on the agency question. The jury could hardly have found that Guarantee was not acting as the agent of Chicago Title at the time it disbursed the Fords’ money.
The Clays appeal from the order distributing funds from the sale of the premises in question to the Fords, contending that the trial court erred as a matter of law and as a matter of equity.
After the Fords filed suit in May of 1972 all defendants filed responsive pleadings. The Clays in their cross-petition against the other defendants alleged that Barkyoumb was acting as their real estate agent and therefore claimed entitlement to the net proceeds of the sale of the property.
On the facts heretofore related it should be noted that on the same day Empire received the cashier’s check from Mr. Zimmerman of Guarantee, in the precise amount indicated by the payoff letter from Empire, the funds were used by Empire to pay the Slavens’ note and mortgage which had been assigned to the Womall Bank. Empire in turn obtained a release of that mortgage. It is uncontroverted that it was $25,746.13 of the Fords’ money that was used to secure the release of the Slavens’ note and mortgage, which was a first and prior lien of record against the property in question.
While this lawsuit was pending in December of 1973 all parties to the litigation, including the Clays, moved the court for an order to assume jurisdiction over the property in question, to sell the same and to distribute the proceeds as indicated by the equities of the parties. Subsequent journal entries were required to clear the clouds on title and get title into the Clays to effectuate a sale of the property. The net proceeds from the sale of this property were $22,886.86. These funds were paid into the clerk of the district court on June 10, 1974, which was in fact the opening day of the trial of this case before the jury. The fact of the sale of this property and the proceeds therefrom was not made known to the jury during the trial, and the distribution thereof in accordance with the demonstrated equities of the parties was left solely up to the trial court in accordance with the motions of all parties and the journal entry of December 18,1973.
Evidence during the trial with regard to the now alleged equity of the Clays in the net proceeds of the sale was as follows:
In response to questions by counsel for the Clays an expert real estate broker testified that where the purchase price of the property was $28,000.00 as here, and commission to be paid on the sale by the Clays would be $1,960.00, with a mortgage lien against the property of $25,746.13, and the sellers responsible for a title insurance policy at an approximate premium of $200.00, the balance of the sale price available to the sellers in the transaction would be $93.87. The witness further acknowledged that there would probably be additional closing costs to be paid by the sellers. The Clays’ counsel in questioning Mrs. Clay established that she was aware Mr. Barkyoumb was going to take the real estate commission out of the purchase price. Thereafter he asked Mrs. Clay the following question, which she answered:
“Question: You have been here throughout. You have heard the disbursements of money that have been made, and from all apparent calculations, is it a fair statement to say that after this entire transaction has been concluded by the other defendants that, rather than having any equity, you probably owe money as a result of the sale of that home?
“Answer: Yes sir.”
In his final argument the Clays’ attorney suggested to the jury that the Clays rather than having an equity in the property in question would probably be in the hole by approximately $203.00 under the terms of the sale.
The Clays’ argument is basically founded upon two facts. First, on June 7, 1974, the trial court in hearing the equitable matter submitted to it ordered that the mortgage of $24,700.00 from Clays made payable to Empire, and the mortgage instrument of October 25, 1971, executed by the Clays to Empire for the same amount regarding said property:
. . [S]hall be and hereby is declared null and void and shall not be a debt of said defendants Jessie H. Clay, Jessie H. Clay, Jr. or Constance G. Clay nor a lien upon their property but is being fully paid and discharged as to all persons, firm or corporation whatsoever.”
On the same day, June 7, 1974, the trial court ordered the Clays to execute a warranty deed in favor of the purchasers (Jackson & Scherer, Inc.).
The second fact relied upon by the Clays is that on June 21, 1974, on trial to a jury, the jury returned a verdict in favor of the defendants Clay and against plaintiffs Ford in the Fords’ contract action against the Clays.
Thereafter on July 9, 1974, the Clays filed a motion for distribution of funds held in the office of the clerk of the district court claiming fee title to the property on the ground that the Fords proceeded against them in contract, and the defendants Clay were held not liable in contract as shown by the jury verdict. The Clays alleged in their motion that the action by the Fords against the other defendants, Barkyoumb, Guarantee, Chicago Title and Empire were all in tort, not in contract, and none of the defendants were ever fee titleholders, but were wrongful and tortious actors and were in reckless disregard of the rights of the Clays in the light of the findings of the court on June 21, 1974. The Clays argued the other defendants have no standing on which to claim an offset on a verdict against them in tort and punitive damages, and that it would be compounding the wrongful act by utilizing funds upon receipt from a contract sale of property from defendants Clay to other persons not parties to this litigation.
On August 22, 1974, the trial court by letter to counsel overruled the Clays’ motion for distribution of funds held by the district court to them and sustained the motion of the Fords, filed June 25, 1974, for distribution of the funds from the sale of the real estate. The trial court’s letter of August 22,1974, ruled:
“The motion of the plaintiffs that a distribution of the amount now on deposit in the Clerk of the District Court’s office will be sustained, and all funds will be paid over to the counsel for the plaintiffs, less court costs. The Clerk is directed to credit the account of the defendants Barkyoumb, Guarantee Abstract and Title, Chicago Title and Trust Company and Empire Mortgage and Investment Company with an amount equal to one-fourth of the amount distributed to the plaintiffs.”
The fallacy in the Clays’ argument is that they seek to commingle the benefits of two proceedings to establish their entitlement to a windfall by ignoring facts established in these proceedings undesirable to them. Here the Clays joined with all parties to the litigation to have the court take jurisdiction of an equitable proceeding for the purpose of selling the property and converting it into a liquid asset. In this equitable proceeding the Clays’ unrecorded mortgage to Empire, originally designed to raise funds to pay off the Slavens’ construction mortgage on the property, was set aside because Empire failed to use the funds for that purpose and permitted the Slavens’ mortgage to stand as a first lien on the property. Since the Ford’s money was used to pay off the Slavens’ mortgage, the trial court, sitting as a court of equity, found that the Fords had an equity in the property, or any proceeds from the sale thereof, in the amount of $25,746.13. The net proceeds from the sale of the property were $22,886.86, and it is readily apparent the established equity of the Fords exceeded the net sale proceeds by approximately $3,000.00.
When the trial court distributed the net proceeds of the sale to the Fords it did not announce the equitable principle by which this action was taken.
The Clays seize upon the fact these funds credited to the Fords were indirectly used to benefit the tort defendants in the civil action. The Clays contend these tort defendants do not come into a court of equity with clean hands and are therefore entitled to no relief. By this process of reasoning the Clays claim they are entitled to a windfall. Novel theories are advanced by the Clays in their brief, but we find no merit in them.
Counsel for the Fords suggests several theories upon which the action of the trial court can be sustained on equitable principles: Restitution (Holloway v. Water Co., 100 Kan. 414, 424, 167 Pac. 265, 2 A. L. R. 161); unjust enrichment (Anderson v. Anderson, 155 Kan. 69, 72, 123 P. 2d 315); legal subrogation (United States Fidelity & Guaranty Co. v. Maryland Cas. Co., 186 Kan. 637, 352 P. 2d 70); and equitable lien (Hill v. Hill, 185 Kan. 389, 345 P. 2d 1015).
We shall not undertake to discuss all of these equitable theories. Clearly the equitable lien theory is applicable. In Hill v. Hill, supra, the court said:
“An equitable lien is not a right of property in the subject matter of the hen nor a right of action therefor, nor does it depend upon possession; but is merely a right to have the property subjected to the payment of a debt or claim, and it applies as well to charges arising by express engagement of the owner of property as to a duty or intention implied on his part to make the property answerable for a specific debt or engagement.” (Syl. 5.)
There is no substance to the Clays’ argument that their property was taken without due process. The Clays, along with other parties to the civil litigation, moved the court to take jurisdiction of the property for the purpose of causing it to be sold, and to thereafter distribute the proceeds as the equities of the parties should be established. No property was ever taken from the Clays; they voluntarily placed their interest, if any, in the court and thereafter failed to prove they had any equity in such property.
The court, in its process of causing the property to be sold, established the Clays as the record fee titleholders by causing a copy of the Slavens-to-Clays deed to be recorded. This action was merely a method of clearing the title and establishing a chain of title so that the Clays could effectively convey to the purchasers the property which the court had ordered sold. The procedure was one of convenience, and it established no property right or equity interest in the Clays. It follows that the order of distribution made by the trial court concerning the net proceeds of the sale was not erroneous and must be sustained.
In their cross-appeal the Fords contend the trial court erred in that portion of its post-trial order of October 7, 1974, wherein it altered the jury verdict by reducing the punitive damage awards against Guarantee and Chicago Title without the consent of the prevailing party.
At the pretrail hearing of the case in December of 1973, the trial court, with discretion to then allow or deny, permitted the Fords to amend their petition so as to state separate causes of action for punitive damages against the tort defendants, and to increase their prayer for punitive damages to $50,000 against the defendant Guarantee and $100,000 against the defendant Chicago Title. At this juncture the amounts of punitive damages prayed for did not shock the court or it could have disallowed the requested amendment.
On June 21, 1974, at the conclusion of a two-week trial, the jury returned its verdict awarding plaintiffs compensatory damages against the tort defendants and punitive damages of $35,000 against the defendant Guarantee and $70,000 against the defendant Chicago Title. These awards were substantially less than the punitive damages prayed for by the plaintiffs.
On June 26, 1974, the trial court expressly confirmed the jury’s verdict and awards by signing and filing its journal entry. At this juncture the trial judge had heard all of the evidence in the case, had listened to the lengthy arguments of the numerous lawyers involved, both within and without the presence of the jury, and had contemplated the matter for five days subsequent to the verdict.
His conscience was not then shocked by the amount of the punitive damage awards or he would not have approved and confirmed the same by signing and filing the journal entry of judgment.
On July 1, 1974, Chicago Title and Guarantee filed their respective motions and other post-trial matters and motions. In the court’s letter of August 22, 1974, the trial judge indicated that he was overruling certain motions, including Guarantee’s and Chicago Title’s motions for directed verdicts and/or new trial, that he was reducing the punitive damages against Guarantee to $25,000 and against Chicago Title to $25,000 as the punitive damage awards by the jury were so excessive as to shock the conscience of the court. These reductions were made without the consent or approval of the Fords and without ever extending to them the option to either accept the reduction or have a new trial.
It is apparent from the record the trial court was influenced by matters outside the record to reduce the punitive damages awarded against Guarantee and Chicago Title.
In arguing the post-trial motions on August 2, 1974, counsel then representing Guarantee and Chicago Title suggested to the trial court that Chicago Title, as the principal, would be entitled to complete indemnification from its agent Guarantee of all damages awarded by the jury. The record then discloses inquiry by the court as follows:
“The Court: There’s a question I would like you to answer, if you would, please. It’s very important to me in consideration of the eventual disposition in this case, either on your theory of indemnification of a principal against an agent or by any present existing agreement between your client and Guarantee, assuming there would be no further action in this oase and this judgment would stand as far as the judgment against your client is concerned, to what extent would Guarantee be looked to to satisfy that -judgment?” (Emphasis added.)
When the attorney responded he was not in possession of any such document, the court requested that he obtain the same for the court, and the attorney agreed to do so. All of this was over the objection of Fords’ attorneys who pointed out: (1) That if Chicago Title had any claim for indemnification against Guarantee it could and should have asserted the same by cross-claim but had not done so; (2) that the court’s request for information outside the trial record was prejudicial and improper; (3) that any dispute between the judgment defendants as to who would be required to pay the plaintiffs’ judgment would have to be the subject matter of a separate lawsuit; and (4) that it was highly improper for the court to consider any of those matters in making any decision in the case.
The record does not disclose that the requested agency contract was produced, but from the foregoing the Fords are entitled to a presumption that the trial judge became so obsessed with the thought that Guarantee might have to pay the punitive damages assessed against Chicago Title that he then made an about-face and reduced the punitive damages by describing the jury’s award of punitive damages as shocking his conscience.
The trial court’s journey outside the record probably resulted in a misconception of an attempt to contract away punitive responsibilities, which are generally held to be violative of public policy. (See, Koch v. Merchants Mutual Bonding Co., supra.)
It is no concern of the trial judge as to how or by whom a judgment will be paid. The court is not privileged to go beyond the issues in the case and make any determination whatsoever on matters outside of those issues. (In re Estate of Grove, 158 Kan. 444, 451, 148 P. 2d 497; and see, Agee v. Kansas Highway Commission, 198 Kan. 173, 422 P. 2d 949.)
Irrespective of whether or not the trial judge’s improper journey outside the record caused his about-face, he was without authority to deny the Fords their consitutional right to a jury determination of fact issues by his reduction of the jury’s verdict without their consent.
Prior to 1964 in cases tried by a jury the court, with the consent of the prevailing party, could reduce the verdict by such part as was not warranted by the evidence and render judgment for the residue, or grant a new trial when justice required it pursuant to G. S. 1949, 60-3004. Cases decided under that statute held a trial court was without authority to reduce a verdict for the plaintiff without the plaintiff’s consent. (McAlister v. McNown, 174 Kan. 608, 258 P. 2d 309.)
In our new Code of Civil Procedure, effective January 1, 1964, there is no corresponding statute expressly granting the authority of remittitur to the Kansas courts.
The authorities unanimously hold that a court, whether trial or appellate, is powerless to reduce the verdict of the jury in an action for unliquidated damages and render judgment for a less amount, unless the party in whose favor the verdict was rendered consents to the reduction, since a reduction under such circumstances invades the province of the jury, and violates the Seventh Amendment right to jury trial under the United States Constitution. The proper course, if a remittitur is refused, is to set aside the verdict and grant a new trial. (Annot., 53 A. L. R. 779 [1928]; Kennon v. Gilmer, 131 U. S. 22, 33 L. Ed. 110, 9 S. Ct. 696; Dimick v. Schiedt, 293 U. S. 474, 79 L. Ed. 603, 55 S. Ct. 296; and Annot., 95 A. L. R. 1163 [1935].) Language to the contrary in Rooks v. Brunch, 202 Kan. 441, 449 P. 2d 580 and Madison v. Wichita, Sedgwick County Health Dept., 213 Kan. 736, 518 P. 2d 935 is disapproved.
This is the law today. It was recently stated by the Sixth Circuit Court of Appeals in Brewer v. Uniroyal, Inc., 498 F. 2d 973 (1974) that:
“. . . [T]he District Court must offer the party awarded damages the choice of a new trial or the amount of the Court’s remittitur. Dimick v. Schiedt, 293 U. S. 474, 476, 55 S. Ct. 296, 79 L. Ed. 603 (1935); Kennon v. Gilmer, 131 U. S. 22, 29, 9 S. Ct. 696, 33 L. Ed. 110 (1889); Manning v. Altec, Inc., 488 F. 2d 127, 130 (6th Cir. 1973). The District Court cannot, without the consent of the parties, substitute its judgment for that of the jury on the issue of just compensation. United States v. 93.970 Acres of Land, 258 F. 2d 17, 31 (7th Cir. 1958), rev’d on other grounds, 360 U. S. 328, 79 S. Ct. 1193, 3 L. Ed. 2d 1275 (1959). To permit the Court to do so would erode the parties’ Seventh Amendment guarantee of a jury trial.” (p. 976.)
(See also, Burnett v. Coleman Company, 507 F. 2d 726 727 [6th Cir. 1974].)
The Kansas cases which have dealt with the subject of remittitur have confined the discussion to our former statutory language, not constitutional guarantees. (See, McAlister v. McNown, supra; Ellis v. Kansas City Public Service Co., 131 Kan. 555, 292 Pac. 939; and Leinbach v. Pickwick Greyhound Lines, 135 Kan. 40, 10 P. 2d 33.)
Since the trial court refused to grant a new trial on the motions of the various defendants, and did not extend to the prevailing parties any such alternative, it must be concluded the trial court did not find the jury’s verdict to be the result of passion and prejudice, in which event it would have been compelled to grant a new trial. It is apparent the trial court did not intend to grant a new trial for any of the reasons stated in K. S. A. 1975 Supp. 60-259 (a). (See, Herbel v. Endres, 202 Kan. 733, 451 P. 2d 184.)
Accordingly, we hold the trial court erred in reducing the punitive damage awards against Guarantee and Chicago Title. The judgment entered by the trial court on the jury’s verdict in accordance with its journal entry filed June 26, 1974, is reinstated against Guarantee and Chicago Title. (No appeal was taken by Barkyoumb or Empire.)
Considering all of the facts and circumstances presented by the record herein, we conclude the verdict of punitive damages against Chicago Title in the sum of $70,000, and against Guarantee in the sum of $35,000 was too large by 50% and should be reduced by that amount. Accordingly, the judgment for punitive damages against Chicago Title is reduced from $70,000 to $35,000, and the judgment for punitive damages against Guarantee is reduced from $35,000 to $17,500 upon the condition that the Fords accept the reduced amount of punitive damages in writing within ten days after this decision becomes final, by filing their acceptance with the clerk of the district court, or, upon their failure to accept the remittitur within the time allotted, the Fords are granted a new trial on the issue of punitive damages against the appellants Chicago Title and Guarantee.
Accordingly, the judgment of the lower court rendered on June 21, 1974, (filed June 26, 1974) is afiBrmed as modified; and the order of the lower court distributing the net proceeds from the sale of the property in question to the Fords and crediting the account of each of the tort defendants, Barkyoumb, Guarantee, Chicago Title and Empire with an amount equal to one-fourth of the amount distributed to the Fords is affirmed.
Fromme, J., not participating.
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The opinion of the court was delivered by
Harman, C.:
This is an appeal from a conviction of first degree murder.
Appellant Charles Goodseal, also known as Charles Jones, was initially charged and tried upon three separate counts arising from the same incident: Unlawful possession of a firearm (K. S. A. 21-4204 [1] [b]), aggravated robbery (K. S. A. 21-3427), and felony murder (K. S. A. 21-3401). The murder count charged that the homicide occurred during the perpetration of the crimes of unlawful possession of a firearm and aggravated robbery. At this first trial appellant was convicted of unlawful possession of a firearm (from which no appeal has been taken), he was acquitted upon the aggravated robbery count and the jury was unable to agree as to the murder charge. Upon a second trial appellant was convicted of murder in the first degree, done in the commission of a felony, unlawful possession of a firearm after a felony conviction. Appellant brings the murder conviction here for review.
The evidence revealed the following. In August, 1969, appellant Goodseal was released from the Kansas state industrial reformatory where he had been serving sentences imposed upon two counts of forcible rape. In December, 1973, he left his home in Wichita to seek employment in Denver, Colorado. While there he stayed with a friend, Carl Davis. Davis testified appellant handled a .38 caliber revolver during his Colorado stay and that appellant stated during their return trip to Wichita in appellant’s automobile he, appellant, had a gun in the car trunk. The two arrived in Wichita December 19, 1973. The next day they met a girl called “Silky” whose real name was either Diana Warren or Dianna Coleman. The three spent much of the day together drinking gin. Silky was to commence working that night as a topless dancer in a club in Wichita called the Goldigger’s Lounge. She displayed a .22 caliber pistol which she was carrying in her purse and said she had another gun hidden at the club and that both guns were for her protection. There were generally from seven to ten girls at the club who worked as dancers, some of whom doubled as well as prostitutes.
At the club that evening appellant told his friend Davis that he had a gun but Davis did not see him with one at any time during the afternoon or early evening. Late in the evening appellant intervened in an argument between the club bartender and the girl who was the manager of the dancers, offering to help the latter. At one point he commented, “If you’re having some trouble I got a heater in my back pocket that will straighten it out”.
The victim of the homicide, James Warren Hunter, arrived at the lounge about 10:30 p. m. During the evening he was seen talking to Silky and at one point fondled her breasts. At a time when Hunter paid five dollars to get some of the girls to pose for pictures the bartender noticed other currency in his billfold. Hunter, Davis and appellant remained in the lounge until closing time, which was 12:30 a. m. Outside the lounge appellant told Davis he was waiting to give Silky a ride home and that she was in a car in the parking lot. Davis assumed Silky was “turning a trick”, Appellant and Silky had previously agreed appellant would pretend to be her husband and pull her from the car so that she would not actually have to have sexual relations with the man she was with. Appellant testified that after this agreement Silky handed him a .38 caliber revolver which she said was not loaded.
Appellant got out of his car and went to the other automobile in the parking lot. There were no lights on inside but the motor was running. Appellant tapped the back glass with the gun butt, Silky unlocked the door and appellant opened the passenger side door. Hunter and Silky were in the back seat. Silky got out of the car immediately, pulling on her pants and asking appellant to get her shoes. Appellant asked Hunter what he was doing with his “wife” and Hunter replied he had paid her. Hunter then pulled on his pants, turned the pockets partially inside out and said, “Hey, she got my money”. Appellant testified he remembered saying, “No wonder she wanted me to play this little trick so she could steal somebody’s money”. Appellant further testified he then bent over to pick up Silky’s shoes, he slipped in the snow, bumped into the door and the gun discharged. The bullet struck Hunter in the armpit beneath his right shoulder and penetrated the lung area, causing his death. Appellant’s version was that the shooting was accidental and the only reason he took the gun was to scare Hunter with it.
After appellant returned to his car he told his friend Davis he had shot the victim in the chest. Davis had witnessed the shooting. As appellant left the area he took a cartridge out of the gun and threw it away. The next day appellant left for Denver and en route he threw the gun away. Silky vanished immediately after the shooting. In January, 1974, appellant was apprehended in Olathe, Kansas. Further evidence will be narrated in connection with the points at issue.
Appellant’s principal point upon appeal is that the trial court erroneously denied his motions for acquittal and new trial because the offense of felonious possession of a firearm is not inherently dangerous to human life and therefore cannot be the basis for felony murder. K. S. A. 21-3401, under which appellant was convicted, provides:
“Murder in the first degree is the killing of a human being committed maliciously, willfully, deliberately and with premeditation or committed in the perpetration or attempt to perpetrate any felony. . . .” (Emphasis supplied. )
Possession of a firearm with a barrel less than twelve inches long by a person who within five years has been released from imprisonment for a felony, is one form of unlawful possession of a firearm and is a class D felony (K. S. A. 21-4204 [1] [b] [2]).
Here there is no question that appellant within five years after his release from confinement for a felony had in his hand a firearm with a barrel less than twelve inches long at a time when a bullet from that weapon caused Hunter s death. Appellant’s argument is this. He says that to sustain a conviction for felony murder the collateral felony must be one inherently dangerous to human life; that this court recognized and applied this rule in State v. Moffitt, 199 Kan. 514, 431 P. 2d 879, and held that unlawful possession of a firearm by an ex-felon is inherently dangerous to human life as a matter of law, further that in reaching this conclusion in Moffitt we cited a line of California decisions holding that unlawful possession of a firearm constitutes a felony inherently dangerous to human life and, where causal connection is shown, a resulting homicide constitutes felony murder in the second degree under California law; that in 1971 the California supreme court receded from this position and in People v. Satchell, 6 Cal. 3d 28, 98 Cal. Reptr. 33, 489 P. 2d 1361, 50 ALR 3d 383, ruled that the unlawful possession of a firearm by a convicted felon, viewed in the abstract, is not a felony inherently dangerous to human life for purposes of the felony murder rule, and this court should similarly reverse its decision in Moffitt and so hold.
Appellee first responds that our present statute does not require that a felony be one inherently dangerous to human life in order to support a felony murder conviction. We cannot agree. At the time Moffitt was decided and prior to 1970, our felony murder statute (K. S. A. 21-401 [Corrick 1964]) provided:
“Every murder which shall be committed by means of poison or by lying in wait, or by any kind of willful, deliberate and premeditated killing, or which shall be committed in the perpetration or an attempt to perpetrate any arson, rape, robbery, burglary, or other felony, shall be deemed murder in the first degree.” (Emphasis supplied.)
As a part of our new criminal code K. S. A. 1970 Supp. 21-3401 provided:
“Murder in the first degree is the malicious killing of a human being committed willfully, deliberately and with premeditation or committed in the perpetration or attempt to perpetrate any felony.” (Emphasis supplied.)
Under the context of this statute it was possible to consider malice as a separate essential element of felony murder. In 1972, the statute was amended to its present form (Laws 1972, Chap. 112, § 1), as already quoted, to indicate that malice is not an essential element of felony murder, following State v. Clark, 204 Kan. 38, 460 P. 2d 586, in which we indicated that the effect of the felony murder rule is to relieve the state of the burden of proving premeditation and malice when the victim’s death is caused by the killer while he is committing another felony, the rationale being that the killer’s malignant purpose is established by proof of the collateral felony.
In Moffitt, supra, we affirmed the rule that a homicide resulting from the commission of a felony inherently dangerous to human life constitutes felony murder or murder in the first degree. Although our statute has been twice amended since Moffitt we have adhered to the same ruling. In State v. Bey, 217 Kan. 251, 535 P. 2d 881, we said:
“. . . [T]o support a conviction for felony murder all that is required is to prove that a felony was being committed which was inherently dangerous to human life, and that the homicide was a direct result of the commission of that felony.” (Syl. para. 5.)
See also State v. Reed, 214 Kan. 562, 520 P. 2d 1314.
In Moffitt we were dealing with the “other felony” clause of the then felony murder statute and we concluded that to come within the clause such a felony must be one inherently dangerous to human life. Our present statute, and the one under which appellant is being prosecuted, uses the term “any felony”. We see no significant distinction between the two expressions for purposes of determining the applicability of the felony murder rule and no reason to depart from the traditional requirement that the felony must be one inherently or foreseeably dangerous to human life. This limitation has always been imposed even in the absence of specific statutory mention and we adhere to that requirement. To go further could lead to manifestly unjust and even absurd results. In reaching the same conclusion the Delaware supreme court in Jenkins v. State, 230 A. 2d 262, commented:
“. . . The only rational function of the felony-murder rule is to furnish an added deterrent to the perpetration of felonies which, by their nature or by the attendant circumstances, create a foreseeable risk of death. This function is not served by application of the rule to felonies not foreseeably dangerous. The rule should not be extended beyond its rational function. Moreover, application of the rule to felonies not foreseeably dangerous would be unsound analytically because there is no logical basis for imputing malice from the intent to commit a felony not dangerous to human life.” (pp. 268-269.)
The next question is whether unlawful possession of a firearm by an ex-felon is an offense inherently dangerous to human life. In Moffitt we said that it was. In reaching this conclusion we did not specifically state whether we were viewing the felony in the abstract or, as several courts have done, were considering both the nature of the felony and the circumstances of its commission (see cases cited in Anno.: Felony Murder — “Dangerous” Felonies, 50 ALR 3d 397, 405-408). In Moffitt the facts were that the defendant, a convicted felon, fired a pistol while assaulting two pedestrians and inadvertently killed a woman sitting on a motorcycle some distance down the street. We did comment in Moffitt upon legislative recognition that persons who had once committed a felony were dangerous to society and should not have in their possession concealable weapons. Beyond this, where doubt may exist, we see nothing wrong in considering both the nature of the offense in the abstract and the circumstances of its commission in determining whether a particular felony was inherently dangerous to human life. Some felonies, such as aggravated robbery, viewed in the abstract alone, are of such nature as to be inherently dangerous to human life, while another which seems of itself not to involve any element of human risk may be committed in such a dangerous manner as to be of the same character.
Hence we hold that the nature of the felony and, where necessary for determination, the circumstances of its commission are relevant factors in considering whether the particular felony was inherently and foreseeably dangerous to human life so as to support a conviction of felony murder. These are questions for the trial court and jury to decide in appropriate cases. In the case at bar appellant’s own testimony was that he used the pistol to' scare the victim. However, there was no evidence he made any presentment of the pistol in an offer to do corporal hurt to the victim so as to amount to an assault constituting an integral part of a murder charge as prohibited by State v. Clark, 204 Kan. 38, 460 P. 2d 586. Under appellant’s undisputed admissions the trial court in effect correctly held as a matter of law that the collateral felony, unlawful possession of a firearm, was a sufficient basis for application of the felony murder rule. In reaching a contrary result the California court in People v. Satchell, supra, declined to take into account the particular circumstances of the collateral felony, a rigid position we decline to adopt.
Appellant makes the further broad assertion that application of the felony murder rule in his case constitutes the infliction of cruel and unusual punishment and denial of his rights of equal protection and due process. The felony murder rule represents a long standing policy of this state. We have already indicated its rationale —to furnish an added deterrent to the perpetration of felonies which, by their nature or the attendant circumstances, create a foreseeable risk of death. “The legislature, acting in the exercise of the police power of the state, is empowered to enact measures in furtherance of the public welfare and safety, and its enactments in such areas are not to be judicially curtailed where they reasonably relate to the ends sought to be attained. Classification honestly designed to protect the public from evils which might otherwise arise are to be upheld unless they are unreasonable, arbitrary or oppressive” (State v. Weathers, 205 Kan. 329, Syl. para. 1 & 2, 469 P. 2d 292). The felony murder rule, designed as it is to protect human life, represents sound public policy, is reasonably related to the end sought to be accomplished and is not constitutionally impermissible.
Appellant next contends the trial court abused its discretion in admitting into evidence several photographs of the deceased taken during the course of an autopsy, since he did not seriously contest the fact or cause of death during the trial. The pathologist who performed the autopsy used the challenged photographs in connection with his trial testimony. He testified to, and with the aid of the postmortem pictures demonstrated, the grazing effect of the bullet wound indicating that the right arm of the victim was raised parallel with the shoulder and extended toward the front when the bullet entered the body, and more importantly, the downward path of the bullet through the victim’s body, thus contradicting appellant’s testimony that the gun discharged when he fell backwards next to the automobile. Under these circumstances the photographs were relevant to illustrate and substantiate the pathologist’s testimony and appellant suffered no prejudice in their admission. They were not of the shocking and repetitive nature condemned in State v. Boyd, 216 Kan. 373, 532 P. 2d 1064. We recently stated the applicable rule in State v. Sully, 219 Kan. 222, 547 P. 2d 344:
“The admission of photographs of a decedent, including photographs taken during an autopsy, is not error where the photographs are relevant to matters in issue, such as the fact and manner of death or to assist in understanding a pathologist’s testimony. Photographs, if relevant and material to matters in issue, are not rendered inadmissible merely because they may be shocking or gruesome.” (Syl. para. 2.)
Appellant contends the trial court erred with respect to its instruction on possession of a firearm. The fact of appellant’s earlier conviction of that offense was not, of course, made known to the jury in the instant case. Appellant’s principal target is instruction No. 4, which stated:
“Possession means dominion or control, exclusive or joint, temporary or permanent, over the revolver, that is to say, possession of a firearm within the contemplation of the statute is the exercise of dominion thereof.”
Instruction No. 5 stated:
“You are further instructed that the laws of the State of Kansas provide that it shall be unlawful for a person knowingly having in his possession a firearm with a barrel less than twelve (12) inches long within five years after being released from imprisonment for a felony. Forcible rape is a felony.”
Appellant’s trial counsel had this to say on the subject:
“Like to have an Instruction on difference between possession and custody to the effect that there is a difference between the terms custody and possession. Possession is a present right and power to control a thing. A person has the cutody of property as distinguished from possession where he merely has the care of it or one who retains the right to control it and, therefore, retains constructive possession. Like to have that Instruction.
“I object to that instruction, [No. 4] and again reinstate my original instruction on difference between possession as opposed to custody as I read to the Court yesterday.”
Appellant also submitted two written requested instructions as follows:
“ ‘Custody’ and ‘possession’ are distinguished in that delivery of goods may give mere ‘custody’ thereof while technical possession remains in one delivering the goods.
“Possession and custody are not convertible terms. To constitute possession mere temporary custody is not sufficient.”
It should be borne in mind that determination of the sufficiency or adequacy of jury instructions may in a given case depend upon the particular evidence adduced in that case.
Appellant now seeks to come within the ambit of our ruling in State v. Neal, 215 Kan. 737, 529 P. 2d 114. There the trial court instructed the jury that to establish the charge it had to be proved the defendant knowingly had possession of a firearm but the court did not define the term possession or instruct the jury as to the intent with which the firearm had to be possessed, i. e., to control its management and use. We held these omissions were, under the particular circumstances, reversible error. The defendant had purchased from a pawnshop, and immediately turned over to. his girl friend for her protection in her home, a firearm of a type proscribed to the ex-felon. The gun was placed in the girl friend’s bedroom closet and thereafter remained untouched by defendant until he cleaned it and with the girl friend took it back to the pawnshop for pawning. After reviewing two of our earlier decisions we concluded:
“When taken together, Phinis and Runnels [State v. Phinis, 199 Kan. 472, 430 P. 2d 251, and State v. Runnels, 203 Kan. 513, 456 P. 2d 16] fashion the rule that the possession proscribed by the statute is not the innocent handling of the weapon but a willful or knowing possession with the intent to control the use and management thereof. This definition accords with that contained in PIK Criminal, chapter 53.00, Definitions and Explanations of Terms, p. 69:
“ ‘Possession: Having control over a place or thing with knowledge of and the intent to have such control. State v. Metz, 107 Kan. 593, 193 P. 177 (1920); City of Hutchinson v. Weems, 173 Kan. 452, 249 P. 2d 633 (1952). . . (p. 740.)
Several of our cases have spoken in terms of “dominion” and “control” of a firearm in defining the concept of possession. In State v. Porter, 201 Kan. 778, 443 P. 2d 360, cert. den. 393 U. S. 1108, 21 L. ed. 2d 805, 89 S. Ct. 919, the court held:
“The possession and control of a pistol contemplated by K. S. A. 21-2611 [the prior statute] is the exercise of dominion thereover, or the right and authority to possess, control and manage its use and disposition.” (Syl. para. 3.)
In State v. Knowles, 209 Kan. 676, 498 P. 2d 40, we held that both the “possession” of a firearm under K. S. A. 21-4204 (1) (b) and “control” of property under the theft statute, K. S. A. 21-3701, connote the exercise of “dominion” over the property in question (Syl. para. 1).
The real question here is whether the instructions adequately covered the subject. We think they did. Although they might have been more precisely worded they did define possession in terms of dominion and control, which was sufficient. The facts in Neal are clearly distinquishable from those here. There the defendant’s only handling of the gun was in procuring it from the pawnship and immediately turning it over to his girl friend waiting outside in an automobile and in cleaning and returning it with her to the pawn shop. There was no evidence he in any way attempted to use or control the gun as a weapon. Here appellant’s own admissions show he did more than exert mere “custody” over the pistol. Most importantly, he testified he used the gun to scare the victim — certainly this use as a weapon was more than the mere innocent handling or the casual, fleeting or momentary possession referred to in some of our prior cases. Appellant’s argument that the jury could have found that Silky owned the gun and therefore controlled it at the time of the victim’s death equates ownership and control and is fallacious because in cases of unlawful possession of a firearm ownership of the weapon is not an essential element of the offense and may even be immaterial (State v. Phinis, supra; State v. Potts, 205 Kan. 42, 468 P. 2d 74).
Appellant further contends the trial court erred in refusing to suppress a taped oral confession given by him because it was not voluntarily made and was taken prior to his appearance before a magistrate. Appellant was arrested in Olathe, Kansas, late Sunday evening, January 6, 1974, upon a charge of siphoning gasoline. His giving of a fictitious name and address aroused police suspicion with the consequence an identity check revealed he was wanted in Wichita on a murder charge. He was transported by police to Wichita early Monday morning, January 7, 1974, and the taped confession was made early in the afternoon of the same day. His first appearance before a magistrate was on Tuesday, January 8, 1974.
When appellant was first arrested in Olathe for siphoning gas the arresting officer immediately advised him of his constitutional rights. He was then taken to the police station where he was interviewed by a detective after a second advising of rights. When this detective discovered appellant’s true identity and that he was wanted in Wichita for murder he arrested him upon that charge and again advised him of his constitutional rights. On that occasion he handed appellant a printed form entitled “Your Rights”, which contained the Miranda statement of rights and provided a space for their written waiver. Appellant read the form and signed the waiver. He then told the officers he had killed a man in the parking lot of the Goldigger’s Lounge in Wichita with a .38 oaliber gun.
Three law officers from Wichita arrived at the Olathe jail at about 5:45 a. tm. Monday, January 8th. They again advised appellant of his constitutional rights and conversed with him for about six minutes. During this interview appellant stated he had killed a man in Wichita but the shooting was accidental. Appellant then agreed he would make a recorded statement when they returned to Wichita. During the return trip the officers did not discuss the case with appellant and he was free to sleep in the car. Appellant made no request for food during the trip but was given coffee and a cupcake at a rest stop.
The officers and appellant arrived at the Sedgwick county court house at 11:15 a. m., January 7th. Appellant was fingerprinted and booked into jail and then taken to a detective’s ofiice where he made a tape recorded statement beginning at 12:19 p. m. of the same day. Before the statement was taken appellant was again advised of his constitutional rights and in his taped statement he acknowledged he had been informed of those rights and had waived them.
Appellant contends his taped confession was not voluntary for a number of reasons: He had only a sixth grade education; he had been drinking heavily and going without food for two or three days prior to his arrest; he was not given adequate nourishment during detention before the statement was made; he did not have adequate rest the night before the recording was taken, and he signed the waiver form because the officers were asking him questions so fast he did not understand them and he believed signing the form would stop the questions.
In a criminal proceeding a statement made by an accused constituting a confession of guilt to the crime charged is not admissible in evidence unless it appears the confession was made freely and voluntarily and not under compulsion of duress (State v. McVeigh, 213 Kan. 432, 516 P. 2d 918). In State v. Soverns, 215 Kan. 775, 529 P. 2d 181, we had this to say on custodial interrogation:
“. . . If such confession is made while the accused is under restraint by law enforcement officials, evidence of the confession is not admissible on the trial, unless it is made to clearly appear that the accused was fully advised of his constitutional rights, and after being so advised, the confession of guilt was freely and voluntarily made under circumstances that afforded no undue influence in procuring the confession. [Citations]
“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] 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 Six Amendment rights, such findings will not be disturbed on appellate review. . . .” (p. 777.)
In State v. Creekmore, 208 Kan. 933, 495 P. 2d 96, we commented:
“. . . Factors generally considered as bearing on the voluntariness of a statement by an accused include the duration and manner of the interrogation; the ability of the accused on request to communicate with the outside world; the accused’s age, intellect and background; and the fairness of the officers in conducting the interrogation. The essential inquiry in determining the voluntariness of a statement is whether the statement was the product of the free and independent will of the accused. Generally if the accused was not deprived of his free choice to admit, deny or refuse to answer, the statement may be considered voluntary.” (p. 934.)
“The mental condition of a defendant at the time he makes a statement is relevant to the issue of voluntariness but is not necessarily conclusive; its weight is for the trier of fact” (State v. Brunner, 211 Kan. 596, Syl. para. 5, 507 P. 2d 233).
It is the duty of the trial court upon a motion to suppress to determine, in the first instance, whether a confession has been made voluntarily and without compulsion or coercion and the burden of proving voluntariness is on the state (K. S. A. 22-3215). “When a trial court, pursuant to the provisions of K. S. A. 22-3215, conducts a preliminary inquiry on the admissibility of an extrajudicial statement given by an accused, and determines the statement was freely, voluntarily and intelligently given and admits the statement into evidence at the trial, this court on appellate review will accept such determination if it is supported by substantial competent evidence” (State v. Smith, 216 Kan. 265, Syl. para. 1, 530 P. 2d 1215).
The trial court held an out-of-court Jackson-Denno type hearing on appellant’s motion to suppress his taped statement and concluded it was voluntarily given and admissible. Under the totality of the circumstances that decision is supported by substantial competent evidence. Appellant was fully advised of his rights on five different occasions, by three different officers and in various settings. In each instance appellant evinced his understanding of his rights and his willingness to make a statement. There is no claim or indication of police cajolement or harassment in order to break appellant’s will and no attempt by him at any time to break off questioning. The arresting officer saw no indication of alcohol or drugs in connection with appellant. The detective who first confronted appellant with the murder charge testified he did not believe appellant was under the influence of alcohol or drugs; that there was no impairment of speech or walking ability and no signs of mental incapacity. Other officers testified he talked freely, understandingly, and without any compulsion or promises of any kind. Although he did not get much sleep the night of his arrest, he was allowed to rest in the car on the trip to Wichita. He may have missed one full meal in the interim but it appears more nourishment would have been given upon his request. In State v. Law, 214 Kan. 643, 522 P. 2d 320, we considered the evidence under which an incriminating statement was given and rejected a contention of involuntariness based upon the defendant’s assertion he signed a waiver of rights in order to stop the questioning.
What about the delay factor in appellant’s appearance before a magistrate? He was arrested late Sunday evening in Olathe, transported to Wichita early the next morning, gave the taped statement early the next afternoon and first appeared before a magistrate the following day. He asserts the delay was unreasonable and prejudicial because the statement was given meanwhile. K. S. A. 22-2901 mandates that after arrest an accused be taken before a magistrate “without unnecessary delay”. The purpose of the statute is to insure that the person arrested is held on a proper charge and to secure to such person the earliest possible opportunity for bail (State v. Nading, 214 Kan. 249, 252, 519 P. 2d 714).
Although this court disapproves of any unwarranted delay in taking a prisoner before a magistrate after he has been arrested, delay in itself is not a denial of due process unless it has in some way prejudiced the right of the accused to a fair trial (State v. Giddings, 216 Kan. 14, Syl. para. 5, 531 P. 2d 445). Whether a delay is unreasonable or prejudicial must depend on the facts and circumstances of each case.
This court has ruled that delays of six days (Underwood v. State, 214 Kan. 633, 522 P. 2d 457), thirteen days (Cooper v. State, 196 Kan. 421, 411 P. 2d 652) and two days over a weekend (State v. Nading, supra) were not prejudicial. In the case at bar the delay was actually less than one day after appellant was brought to Wichita. The challenged statement was made prior to his appearance before a magistrate. However, this taped statement, except for elaboration as to details, was essentially the same as he had twice given at Olathe — first to the Olathe detective when he was arrested for murder and again a few hours later to Sedgwick county officers at the Olathe jail, and against which no challenge has been made. Appellant seemed completely willing at all times to discuss the affair and in view of the repeated warnings of Miranda rights there is no reason to believe that an earlier appearance before a magistrate would have changed his willingness. A very similar argument on this score was made and rejected in State v. Law, supra, where the trial court excluded testimony that the defendant had not been taken before a magistrate until after he had given two written confessions and had been in custody for over thirty-three hours. In upholding the trial court we said:
“This court has held that a confession obtained during a period of illegal detention is not inadmissible if voluntarily made and not the product of the detention. [Citations] Needless to say, we do not approve of unwarranted delay in taking a suspect before a proper magistrate; however, any issue as to whether defendant’s confessions were freely and voluntarily made or a product of the delay in taking him before a magistrate was resolved by the trial court.” (pp. 650-651.)
No prejudice has been shown by the delay and under all the circumstances the trial court did not err in admitting appellant’s statement into evidence.
Appellant next contends the trial court erred in refusing to instruct the jury on the lesser included offenses of second degree murder and involuntary manslaughter. In State v. Reed, 214 Kan. 562, 520 P. 2d 1314, we noted that a trial court’s duty under K. S. A. 21-3107 (3) to instruct on a lesser included offense arises only where there is evidence under which the defendant might reasonably have been convicted of the lesser offense. As already indicated, under the felony murder rule the felonious conduct itself is held tantamount to the elements of malice, deliberation and premeditation which are otherwise required for first degree murder, and if proof is adduced during the trial that the accused was committing a felony inherently dangerous to human life and the homicide was a direct result of that felony, then the only possible conviction can be that of first degree murder -under the felony murder rule (State v. Reed, supra, and State v. Masqua, 210 Kan. 419, 502 P. 2d 728). The oases of Reed and Masqua were distinguished, however, in the recent case of State v. Bradford, 219 Kan. 336, 548 P. 2d 812. There this court upheld a trial court’s decision to instruct the jury on the lesser included offense of second degree murder even though the defendant was charged with felony murder. The court’s rationale was as follows:
“The circumstances of this case are distinguishable from those in Reed and Masqua. In those cases the evidence was uncontradicted that a felony had occurred. There was no conflicting testimony. This court therefore held that because the jury could not have found Reed and Masqua not guilty of the felonies with which they were charged, and yet guilty of the murder charged, instructions on lesser degrees of homicide were inappropriate.
“In the case at hand, conflicting evidence was presented as to whether or not the felony charged, robbery, had occurred. . . .
“Ordinarily, in a felony murder case, where the evidence of the commission of the felony is clear and uncontroverted, no instruction on lesser degrees of homicide should be given. But where, as here, there is conflicting evidence as to the commission of the felony, and where the evidence will support a conviction of a lesser degree of homicide, instructions on appropriate lesser degrees should be given.” (pp. 342-343.)
Was the evidence in the case at bar clear and undisputed that the appellant committed the felony of unlawful possession of a firearm, and that during the commission of that felony the homicide was committed? Much of that which has already been said supplies an affirmative answer to this question. Appellant’s own testimony was that he used the pistol to scare the victim and all the evidence compels the conclusion he did in fact use the pistol in a menacing fashion as a weapon even though its discharge may have been accidental. Under these uncontroverted facts instructions on any lesser degree of homicide would have been improper.
Finally, appellant complains of the trial court’s failure to permit the jury to fix the punishment to be assessed upon conviction. Instead the court fixed the punishment as life imprisonment. Murder in the first degree is a class A felony. K. S. A. 21-4501 provides:
“For the purpose of sentencing, the following classes of felonies and terms of imprisonment authorized for each class are established:
“(a) Class A the sentence for which shall be death or imprisonment for life. If there is a jury trial the jury shall determine which punishment shall be inflicted. . . .”
The complaint has no merit. At the time of appellant’s trial the death penalty in Kansas had been judicially abolished and a jury in a class A felony case no longer had any function or choice to perform in fixing the penalty upon conviction (State v. Randol, 212 Kan. 461, 513 P. 2d 248). The law fixed the only permissible punishment and its declaration was a matter for the trial court.
The judgment is affirmed.
APPROVED BY THE COURT.
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The opinion of the court was delivered by
Prager, J.:
This is a workmen’s compensation appeal by the claimant-appellant, Phillip L. Eakes, from the judgment of the district court holding that the director of workmen’s compensation was without jurisdiction to review and modify an award entered on June 21, 1974. The appellees are the employer, Hoffman-La-Roche, Inc., and its insurance carrier, Hartford Insurance Group. The facts in the case are undisputed and are as follows: On December 28, 1973, the claimant, Eakes, sustained an accident arising out of and in the course of his employment with Hoffman-LaRoche, Inc. He lost no compensable time from his work and went to his own doctor. He incurred medical expenses in the total amount of $173.30. On June 21, 1974, the claimant appeared without counsel before special examiner Frank Menghini. At this time he was fully and completely advised of his rights under the workmens compensation act. The examiner was informed by the claimant that he had elected to pursue his rights against the negligent third party who caused the accident and that he desired to release his employer from any further liability for workmen’s compensation beoause of the accident. The examiner advised the claimant that he had the right to pursue a claim under the workmen’s compensation act and that he could also pursue his third-party action at the same time. Claimant was further advised that if he settled the workmen’s compensation claim on the basis of payment of the medical and hospital expenses an award based thereupon would constitute a final and complete release of his employer and its insurance carrier from any further liability for claims arising from the accident. The examiner informed the claimant that if he was unsuccessful in his third-party action, under the law he would not be able to come back later and obtain workmen’s compensation. The examiner suggested to claimant that it would be unwise for him to proceed on this basis. Claimant insisted that that was what he wanted to do. At the conclusion of the hearing the examiner made an award in favor of the claimant on the basis of payment of all medical and hospital expenses as read into the record. At that time all medical and hospital expenses had already been paid. No appeal was taken to the district court from the workmen’s compensation award under K. S. A. 44-556, nor was any request for a review filed with the director under K. S. A. 44-551.
On February 18, 1975, the claimant Eakes filed a motion for review and modification under the authority of K. S. A. 44-528. The basis of his motion for review was that he did not have an attorney representing him at the time the award was entered and that the award was inadequate. He further asserted all the grounds set out in K. S. A. 44-528, including mutual mistake. The motion for review and modification was set for hearing. At that time the employer and its insurance carrier' challenged the jurisdiction of the director on the basis that final payment for compensation had been made and therefore the workmen’s compensation director had no power or jurisdiction to hear the motion. The examiner denied the motion for review and modification because of lack of jurisdiction. The director and the district court both upheld the examiners ruling. The claimant has appealed to this court.
The issue presented to this court on appeal is strictly one of law and requires a determination of the application of certain provisions of the workmens compensation act which were amended effective July 1, 1974, only ten days after the workmen s compensation award was entered on June 21, 1974. On the date the award was entered K. S. A. 44-528 provided in pertinent part as follows:
“44-528. ... At any time before but not after the final payment has been made under or pursuant to any award or modification thereof agreed upon by the parties, ... it may be reviewed by the director for good cause shown upon the application of either party . . . and 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 . . .” (Emphasis supplied.)
Under K. S. A. 44-528, which was effective on June 21, 1974, whenever a claimant accepted a final payment under an award, he thereby divested the director of any authority to review the award, regardless of the time of the filing of the petition for review. (Everett v. Kansas Power Co., 160 Kan. 712, 165 P. 2d 595; Bailey v. Skelly Oil Co., 153 Kan. 378, 110 P. 2d 746.) If K. S. A. 44-528 is controlling there is no question that the workmen’s compensation director and his examiners had no jurisdiction to entertain the claimant’s motion for review and modification since the employer and its insurance carrier had paid in full the medical and hospital expenses prior to the date the award was entered. The claimant, however, relies upon a 1974 amendment to 44-528 which now appears as K. S. A. 1975 Supp. 44-528 (a) and which in pertinent part now provides:
“44-528. . . . (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 of any other interested party. . . .”
The pertinent change in 44-528 (a), from the claimant’s point of view, is the deletion of the phrase “at any time before but not after the final payment has been made.” This amendment became effective July 1, 1974, and if applicable to the present case would have permitted claimant to file a motion for a review and modification even though he had accepted final payment under a workmen’s compensation award. The 1974 legislature amended many sections of the workmen’s compensation act providing for substantial changes not only affecting matters of procedure but also substantive rights of the parties under the workmen’s compensation act. Included among these revisions was an amendment to K. S. A. 44-505 (c) which provided as follows:
“This act shall not apply in any case where the accident occurred prior to the effective date of this act. All rights which accrued by reason of any such accident shall be governed by the laws in effect at that time.”
The basic issue to be determined on the appeal is whether K. S. A. 44-528 should be applied or rather the amended statute K. S. A. 1974 Supp. 44-528. Simply stated it is the position of the claimant that the amended statute should be applied to his case since the amendment of 1974 was procedural and not substantive in nature. The employer and its insurance carrier take the position that K. S. A. 44-528 which was effective on June 21, 1974, the date on which the award was entered, is the applicable statute. They contend that the amendment to 44-528 was, in fact, substantive in nature and not procedural, and therefore cannot be applied retroactively to breathe life into the workmen’s compensation claim of Eakes which had become final and not subject to review on July 1, 1974, when the new statute became effective.
We have concluded that under established principles of law the amendment effective July 1, 1974, should not be applied retroactively to afford the relief which the claimant seeks in this case. The general rule followed in this jurisdiction is that a statute will operate prospectively rather than retrospectively unless its language clearly indicates that the legislature intended the latter, and that retrospective application will not be given where vested rights will be impaired. (Johnson v. Warren, 192 Kan. 310, 387 P. 2d 213; Ward v. Marzolf Hardwood Floors, Inc., 190 Kan. 809, 378 P. 2d 80; Pinkston v. Rice Motor Co., 180 Kan. 295, 303 P. 2d 197; Ellis v. Kroger Grocery Co., 159 Kan. 213, 152 P. 2d 860, 155 A. L. R. 546.) The application of an amendment to the workmen’s compensation act to injuries occurring prior to the effective date of the amendment was before the court in Lyon v. Wilson, 210 Kan. 768, 443 P. 2d 314. Lyon involved an amendment to K. S. A. 44-501 relating to coronary or coronary artery disease or cerebrovascular injuries. In holding that the amendment had no retrospective application the court said:
“The liability of an employer to an injured employee arises out of contract between them, and the terms of a statute are embodied in that contract. The injured employee must therefore recover on the contract, and his cause of action accrues on the date of the injury. The substantive rights between the parties are determined by the law in effect on the date of the injury. Amendments to the compensation act which are merely procedural or remedial in nature, and which do not prejudicially affect substantive rights of the parties, apply to pending cases. . . .” (p. 774.) (Emphasis supplied.)
As a general rule retroactive construction will not be given a statute so as to impose liabilities not existing at the time of its passage. (82 C. J. S. Statutes § 418, citing cases from other jurisdictions in support of the rule.) Retrospective operation of statutes was treated at some length in State, ex rel., v. Public Service Comm., 135 Kan. 491, 11 P. 2d 999, wherein the reparation act of 1929 (Laws of 1929, Ch. 223), as enacted, affected shipping contracts between shippers and common carriers. It was held invalid insofar as its retroactive aspects violated the provision of the federal constitution which forbids the state to pass any law impairing the obligation of contracts. In the text of the opinion Justice Dawson speaking for the court reviewed many of the cases dealing with retrospective legislation. Insofar as pertaining to the instant case he stated the rule to be as follows:
“. . . retrospective legislation which attempts to impair vested rights or deprive a private litigant of a right he had at the time the later statute was enacted cannot be enforced. . . . (citing cases)” (p. 503.)
The rule is recognized in Johnson v. Warren, supra, involving an amendment to the workmens compensation act, and also in Davis, Administrator v. Union Pacific Railway Co., 206 Kan. 40, 476 P. 2d 635.
In cases in jurisdictions where workmens compensation review statutes have been amended so as to allow a review of a workmen s compensation award where under the previous statute no review could be had, the majority of the courts have held that such an amendment cannot be applied retrospectively to cases where at the time the amendment became effective the workmen s compensation award had already became a finality and not subject to further review or modification. The rationale of the majority rule is that a final decree in a workmens compensation case is final as in any other case. An annotation on the subject may be found in 165 A. L. R. 515, where cases from other jurisdictions are set forth.
The factual situation involved in the case now before us is comparable to cases where a cause of action has been barred by a statute of limitation and the limitation statute is later amended to lengthen the period in which such an action may be brought. The rule followed throughout the United States in the majority of jurisdictions is that amendments to statutes of limitation will not be applied retroactively to causes of action already barred. The Kansas cases pertaining to statutes of limitation have followed the majority rule. In Bowman, et al., v. Cockrill, 6 Kan. 311, this court stated in the opinion that after a cause of action is once barred by a statute of limitations it is not in the power of the legislature to revive it by subsequent legislation. The rule has also been followed in Keith v. Keith, 26 Kan. 26; Terrill v. Hoyt, 149 Kan. 51, 87 P. 2d 238; and Rostocil v. United Oil & Gas Royalty Ass’n, 177 Kan. 15, 274 P. 2d 761.
When we apply the general principles of law set forth above to the factual circumstances in the present case, it logically follows that K. S. A. 1974 Supp. 44-528 should not be applied retrospectively to permit the filing of a motion for review and modification in a workmen’s compensation case where the award had become final and not subject to review and modification at the time the amendment became effective. In our judgment the rights of the parties in this case had become vested prior to the effective date of the amended statute K. S. A. 1974 Supp. 44-528 and hence the amendment should not be given retrospective application. There is nothing in the statute to indicate clearly that the legislature intended the amendment to be applied retrospectively and under the general rule cited above it should not be so construed.
The only case which claimant cites in his brief in support of his position is Pinkston v. Rice Motor Co., supra. Pinkston involved an amendment to G. S. 1949 44-520a which increased from eight months to one year the time for serving a claim for workmen’s compensation death benefits upon an employer. The amendment became effective subsequent to the death of the employee involved but at a time when the eight-month period under the former statute for filing claims had not yet expired. In Pinkston the court ruled that the amendment was procedural in nature and that the amended statute was applicable. The situation in Pinkston was not the same as that involved in the present case. There the workmen’s compensation award had not become a finality but was an existing viable claim at the time the amendment increasing the time for filing the claim became effective. Under the circumstances it can not be said that the rights of the parties in Pinkston had become vested. Hence the amendment being procedural in nature and not prejudicing substantial rights of the parties could be applied retrospectively to existing claims not yet barred under the prior statute.
For the reasons set forth above the judgment of the district court is affirmed.
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The opinion of the court was delivered by
Prager, J.:
This is a direct appeal in a criminal action in which the defendant-appellant, James Russell Eatmon, Jr., was convicted by a jury of selling a narcotic drug in violation of K. S. A. 1973 Supp. 65-4127a. The major point raised on the appeal is that the trial court erred in overruling the defendant’s motion to suppress certain evidence consisting of marked currency which was obtained as the result of a search of defendant’s person by Topeka police officers. The defendant contends that the evidence should have been suppressed for the reason that it was obtained as the fruits of an illegal search and seizure in violation of the defendant’s rights under the Fourth Amendment to the United States Constitution. The basic question to be determined is whether or not the police officers had probable cause to stop and search the defendant. The same issue was raised after conviction in the defendant’s motion for a new trial. In overruling the motion for a new trial the district court filed a well-written memorandum opinion which sets forth at length the decisive facts, outlines the issue, and states the considerations for its order and judgment in such manner and form that the opinion might well be incorporated in and made a part of the opinion of an appellate court. We quote that portion pertaining to the search and seizure issue.
“Memorandum Decision
“The defendant has filed a motion for new trial stating five separate grounds. The principal ground relates to a motion of defendant to suppress certain evidence consisting of marked currency obtained as the fruits of a search and seizure which defendant contends was illegal.
“The evidence at the suppression hearing disclosed that during the evening hours on or about the 12th or 13tb day of August, 1974, KBI Agent, Dave R. Ballentine, went to the residence of Mark Lynn, at 1501 Wayne Street, Topeka, Kansas, and purchased a small quantity of heroin. At that time Ballentine made arrangements with Lynn to purchase a larger quantity of the substance. Lynn informed Ballentine that he was going bowling and that Ballentine could return later that same evening to obtain the larger quantity. Ballentine then returned to his vehicle and marked a quantity of U. S. currency, which he intended to use for the second purchase. After the bills were marked, Ballentine went back to Lynn’s residence with the currency. Thirty-five minutes later Vicki Lawyer entered the residence and handed Lynn a tin foil ball containing several packages of brownish powder, which Ballentine believed to be heroin. Ballentine examined the powder and paid $789.00 in marked currency to Lynn. Ballentine then departed with the evidence and drove his vehicle out of the area.
“Ballentine also testified that while he was negotiating with Lynn for the large purchase of heroin, it was necessary for Lynn to make a phone call to obtain the price for the larger buy, which was determined to be $800.00. Ballentine was $11.00 short. However, he was permitted to make the buy for the amount of $789.00. Ballentine further testified that shortly before his second visit to Lynn’s residence during the time he was marking the currency in his vehicle, he observed a black over gold Buick with a Continental rear end, which he recognized as the defendant’s car. This vehicle was in an alley approximately a block and a half from Lynn’s residence in the vicinity of 15th and MacVicar. The driver of the Buick was a black male. Ballentine was unable to make any further identification. Ballentine further testified that during his second visit Lynn made another telephone call during which Ballentine overheard Lynn state that he “had something for an individual.’
“Upon departing the Lynn residence after the second visit, Ballentine radioed to the surveillance team that the buy had been completed and that Lynn would be leaving to meet someone to give the money to, shortly.
“The evidence also disclosed that after the radio transmission, Guy Scott Teeselink, a law enforcement officer and member of the surveillance team, observed Lynn leave in a blue Honda, parked behind his residence. Teeselink followed him eastbound through the College Hill area to the vicinity of 12th and Lincoln Streets, where contact was lost. A very short period of time later officers K. C. Blodgett and Tom Sargent radioed that they had the Honda in sight and that it was circling the area on Munson Street where the defendant’s vehicle and that of Blodgett and Sargent were parked.
“The evidence further disclosed that law enforcement officers K. C. Blodgett and Tom Sargent were members of the surveillance team stationed in a separate vehicle. They followed the blue Honda driven by Lynn away from the area of the Lynn residence at 11:40 p. m. They lost contact briefly with the Honda in the vicinity of Huntoon and Lincoln Streets. During this period of time, said officers observed a 1971 Buick Electra 225, license No. SNE 7469, black over gold with Continental rear end, which the officers recognized as the defendant’s, parked on Munson Street, between Lincoln and Lane Streets near an alley. No one was observed in the vehicle. The officers parked their vehicle on Mun-son Street and set up surveillance to see if the blue Honda would make contact. Within two or three minutes the Honda was again seen by the officers, circling the area where the defendant’s vehicle was located. The Honda came out of the alley and drove past the parked Buick westbound on Munson. It then appeared to leave the area proceeding in the general direction of the Lynn residence.
“Moments later a negro male was observed by Blodgett and Sargent approaching and entering the defendant’s vehicle. The officers could not determine the direction from which the individual approached. However, the officers did not observe him crossing Munson from the side opposite the alley. Blodgett and Sargent radioed Teeselink that Lynn was in route back to his residence and that the defendant’s vehicle was moving and that they would attempt to stop it. Teeselink picked up the Honda at Munson and Washburn and followed it to Washburn and 15th Streets, where the Honda turned westbound in the direction of the Lynn residence. Upon receiving the radio transmission from Blodgett and Sargent that the defendant’s vehicle was leaving the area, Teeselink dropped off the Honda and returned to the area to assist in stopping the Buick. However, Teeselink was advised by Blodgett and Sargent at 11:48 p. m. that they had lost contact with the defendant’s vehicle. Both surveillance vehicles rendezvoused in a parking lot near 17th and Washburn. At 11:54 p. m. the defendant’s vehicle was observed westbound on 17th Street passing the parking lot. The officers stopped defendant’s vehicle at 17th and Oakley Streets. Defendant was driving, and Janice Pratt was a passenger. The defendant was instructed to step to the rear of the vehicle where he was searched, and a large quantity of the marked currency utilized by Ballentine in the second buy was discovered on defendant’s person. The currency was seized as evidence. Mark Lynn is a white male, and the defendant is a black male.
“Defendant contends that this evidence should have been suppressed. He argues that the officers had no probable cause for search. Defendant further contends that the record fails to disclose any reasonable basis for the decision of Blodgett and Sargent to place defendant’s vehicle under surveillance on Munson Street. In defendant’s view of the evidence, the facts fail to show any relevant connection between the second purchase of heroin from Lynn and the defendant or his vehicle.
“Defendant’s arguments are not persuasive. Lynn made two phone calls incident to the second purchase of heroin. The first was to obtain the price, and the second was to advise his contact that he ‘had something for an individual’. It could have been reasonably inferred by Ballentine that Lynn had obtained the price from his supplier and then made contact again with the supplier to advise that $789.00 would be delivered as proceeds of the sale. This was a reasonable inference in view of the size of the sale, the amount of money and the timing involved. Thus, Ballentine’s radio transmission to the surveillance team to this affect was warranted under the circumstances. Moreover, Lynn’s departure in the blue Honda, shortly after the sale, tended to further support such inference on the part of the surveillance team. Defendant’s vehicle was distinctive in color and shape. The evidence discloses that the officers were familiar with it and recognized it as the defendant’s on the night in question. Said vehicle was seen by Ballentine approximately a block and a half away from the Lynn residence in an alley shortly before the second buy. The timing and proximity of said vehicle was an additional circumstance tending to support the inference that defendant was in contact with Lynn.
“Defendant’s contention that the officers were required to have reasonable grounds or probable cause at the time they set up surveillance on defendant’s vehicle, is without merit. There is no such requirement in the law. Such surveillance did not violate defendant’s rights. If the officers had decided to observe defendant’s vehicle by reason of a mere ‘hunch’ or even by accident, it would be of no consequence. The law requires only that the surveillance team have probable cause at the time defendant was stopped and searched at 17th and Oakley Streets.
“All of. the circumstances taken together at the time of the search provided probable cause. Such factors as the sighting of defendant’s vehicle in the proximity of the Lynn residence shortly before the second buy, the two telephone calls and the quick departure of Lynn after the second sale have already been mentioned. In addition, such circumstances as the movements of the Lynn vehicle in circling the area where defendant’s vehicle was parked and then leaving the area and heading back in the general direction of the Lynn residence, taken in conjunction with the departure of the defendant’s vehicle shortly thereafter, are all consistent with the inference that Lynn had delivered the marked currency to the defendant and that defendant was Lynn’s contact or supplier. The failure on the part of the officers to view an actual contact or exchange is not fatal. Obviously, persons engaged in such activities cannot be expected to make contact where they can be readily observed. In the instant case, the timing and proximity of Lynn’s and defendant’s movements' are enough to support a reasonable inference either that defendant was Lynn’s contact or that defendant was in some way involved in the illegal sale of heroin. Moreover, the evidence discloses that all the foregoing events starting with Lynn’s departure from his residence and ending with the sighting of defendant’s vehicle on 17th Street prior to the search, took place between 11:40 p. m. and 11:54 p. m., a mere 14 minutes. The facts which supported the officers inference as to the involvement of the defendant were fresh, indeed.
“Thus, the Court concludes that the web of factual circumstances and the timing of the events in question establish reasonable grounds and probable cause at the time of defendant’s search. The officers had probable cause plus exigent circumstances for the search. (Chambers v. Maroney, 399 U. S. 42, 26 L. Ed. 2d 419, 90 S. Ct. 1975) The evidence consisting of marked currency could have been easily disposed of by defendant at any time without a moment’s notice. The officers would have been running a serious risk of losing the evidence if they had postponed the search. Furthermore, the information and knowledge received from fellow officers may be relied upon. (United States v. Ventresca, 380 U. S. 102, 85 S. Ct. 741, 13 L. Ed. 2d 684) The Court is, therefore, of the view that the search of the defendant and the seizure of the evidence in question was lawful and that no error was committed when the motion of defendant to suppress was overruled.”
After a careful consideration of the district court’s memorandum decision, we are convinced that the trial court assigned sound and controlling reasons for its order overruling the defendant’s motions to suppress evidence. The trial court’s memorandum opinion effectively answers the questions and the arguments advanced with respect thereto raised by the defendant on this appeal.
The defendant’s second point is that the trial court erred in overruling his motion for a mistrial which arose as a result of a statement made by Officer Teeselink in the presence of the jury. While on the stand Teeselink volunteered that he had received a' telephone communication from Officer Ballentine to the affect that the drug seller, Lynn, was leaving his residence to meet his contact. Ballentine, himself, did not testify concerning this communication. Immediately after the statement was made by Teeselink, counsel for the defendant objected to it. The court promptly sustained the objection and instructed the jury to disregard the remark. The trial court, however, overruled the defendant’s motion for a mistrial. The record discloses that the trial court sustained the objection on the basis that the evidence was hearsay. The general rule is that so long as the objecting party’s rights have not been substantially affected, exposure of improper hearsay testimony to a jury does not constitute prejudicial error when the court promptly strikes the testimony and admonishes the jury to disregard it. (State v. Carter, 214 Kan. 533, 521 P. 2d 294.) Under the circumstances shown in the record in this case we cannot say that the defendant’s rights could have been substantially affected by the denial of his motion for a mistrial. At the trial the defendant took the stand in his own defense and testified that he received a telephone call from Lynn in which Lynn advised defendant that Lynn had money for him and that he met Lynn as a result of the call. Defendant denied that the money he received from Lynn came from the sale of narcotic drugs. According to defendant, Lynn gave him the money in repayment of a loan. It was clear from the testimony that Lynn did in fact leave his residence to meet the defendant following a telephone communication. Under the circumstances we do not see how the testimony of Officer Teeselink could possibly have prejudiced the rights of the defendant in this case.
The defendant’s final point on appeal is that the state’s evidence was insufficient to support the verdict. There was substantial evidence offered by the state from which the jury could return a verdict of guilty. The evidence offered by the state showed that the marked money, which had been used to purchase heroin from Mark Lynn, was found on the person of the defendant a few minutes later. This evidence considered with the rest of the evidence in the case could lead to a reasonable inference that the defendant was the heroin supplier for Mark Lynn. The time-honored rule of this court is that when the sufficiency of the evidence is challenged in a criminal case it is this court’s duty to determine whether there was sufficient evidence to form for the jury a basis of a reasonable inference of guilt when viewed in the light most favorable to the state. (State v. Austin, 209 Kan. 4, 495 P. 2d 960; State v. Sparks, 217 Kan. 204, 535 P. 2d 901.) In our judgment there was ample evidence to support the verdict of guilt.
The judgment of the district court is affirmed.
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The opinion of the court was delivered by
Miller, J.:
This habeas corpus proceeding involves the custody of eleven-year-old Michael Lynn Avery. His mother, Nancy E. Jolly, is the petitioner-appellee; his father, Lyndell L. Avery, is respondent and appellant. The matter was heard and the petition granted in Division 6 of the District Court of Johnson County, Kansas. The respondent raises several points on appeal, most of which involve the exercise of discretion by the trial court.
The background facts are not remarkable. Nancy and Lyndell were married in Kansas in 1957. They then moved to Michigan, where Michael was born in 1964. Four years later the parents separated. Nancy remained in Michigan; Lyndell returned to Kansas and has resided in Johnson County since 1968. Nancy filed for divorce, and a default decree was entered in April, 1969, by the Circuit Court of Oakland County, Michigan, dissolving the marriage contract and granting to Nancy the care and custody of Michael. The court also granted visitation privileges to Lyndell, including the right to have Michael come to Kansas for a visit of up to one month each summer. Both Nancy and Lyndell have remarried.
Michael came to visit his father during the summer of 1975. Nancy says that Michael came to Kansas on August 8, and that Lyndell agreed to return him to Michigan on August 28, but instead, Lyndell telephoned Nancy’s attorney on that date advising him that Michael would not be returned to Michigan. Lyndell acknowledges that Michael came to Kansas to visit him under and pursuant to the visitation orders entered by the Circuit Court of Oakland County, Michigan, and that Michael remained in Kansas until the petition for writ of habeas corpus was heard.
Next in the chain of events, the circuit court entered an emergency order on August 29, directing Lyndell to return Michael to his home in Michigan immediately, or to appear before that court on September 17 at 9 a. m. to show cause why he should not be punished for contempt. This order was served upon Lyndell on September 5.
Lyndell, on September 2, commenced an action in the District Court of Johnson County, Kansas wherein he sought the temporary and permanent custody of Michael. He alleged in his petition a change of circumstances since the granting of the Michigan decree in 1969, and the unfitness of both Nancy and her present husband. Nancy was served with summons on September 9. This case was assigned to division 5.
Nancy filed her verified application for a writ of habeas corpus in the District Court of Johnson County, Kansas on September 8. She pleaded the 1969 decree of the Michigan court granting her Michael’s custody and the emergency order of August 29 requiring Lyndell to return Michael to Michigan. She alleged that not withstanding these orders, Lyndell was unlawfully restraining and holding Michael in his custody. This action was assigned to division 6, and a writ of habeas corpus was issued, returnable on September 10. The record does not reflect the date on which the writ was served.
Lyndell answered the habeas petition and a hearing was held before division 6 of the Johnson County District Court on September 10, both parties appearing in person and by counsel, and Michael being out of the courtroom but within the building. The court refused to hear evidence as to changed circumstances or fitness of the parents, and limited its consideration to (1) whether there was a valid and effective order of the Michigan court awarding custody, and (2) whether there was a violation of that order. It found in the affirmative on both questions, determined that in the interest of comity it should give full faith and credit to the Michigan court order, and granted Nancy immediate custody of Michael.
Simply stated, respondent here complains that the court erred in not holding an evidentiary hearing; in failing to transfer the matter to division 5 under local rule 3; and in refusing to grant respondent a stay pursuant to K. S. A. 60-1505. We will consider these points in the order stated.
The court was first faced with a determination of whether to hold a full evidentiary hearing on the issue of change of custody as urged by the respondent. Lyndell’s answer denied all of the allegations of the petition except the identities of the parties and their residences, and that they are the natural parents of Michael. However, attached as an exhibit to the answer was a copy of the verified petition for change of custody filed by Lyndell a few days previously in the same court. By that verified document Lyndell pleaded facts which he chose to deny in the habeas action — that the parties were divorced by decree of a Michigan court, which decree awarded custody of Michael to Nancy and visitation privileges to him; and that Michael was physically present in Johnson County pursuant to the visitation granted Lyndell by the court in Michigan. He challenged the copies of the orders of the Michigan court appended to the habeas petition because they were certified and not authenticated. The trial court specifically inquired if respondent denied or in any way challenged the validity of those orders, and no challenge except as to lack of certification was forthcoming. The long and short of respondent’s argument then and now is that he wanted the trial court to hold an evidentiary hearing not on the validity of the Michigan court orders but upon his request for a change of custody.
Here we have a parent who brings a child into Kansas temporarily under a summer visitation order entered by a court of our sister state, and then seeks to- invoke the equity jurisdiction of our courts to avoid compliance with the order under which temporary custody of the minor was secured. The Michigan court has continuing jurisdiction in child custody matters under MSA 25.97, and may upon proper application and showing, change the custody or otherwise alter or revise the decree insofar as it provides for the care, custody or support of minor children of the marriage. Rybinski v. Rybinski, 333 Mich. 592, 53 N. W. 2d 386; Sperti v. Sperti, 326 Mich. 620, 40 N. W. 2d 746; Young v. Young, 13 Mich. App. 395, 164 N. W. 2d 585.
At the time of the hearing on September 10 before the trial court in this matter, the Michigan court had already issued its emergency order of August 29, and had scheduled a hearing for September 17. The trial court recognized its jurisdiction to hold an evidentiary hearing, but declined to do so in the exercise of its discretion. In its memorandum, the trial court said:
“. . . The Court is aware that it could have jurisdiction to have an evidentiary hearing on change of custody but feels that it should give full faith and credit ... [to the Michigan court proceedings].”
The trial court also indicated that it was invoking the “clean hands” doctrine in exercising its discretion.
The problem facing the trial court is a recurring one. Justice (now Chief Justice) Fatzer discussed it in detail in Perrenoud v. Perrenoud, 206 Kan. 559, 576-578, 480 P. 2d 749, where he said:
“Frequently courts have been faced with the problem whether to give ‘full faith and credit’ or ‘comity’ to a sister state’s decree and refuse to reexamine its merits, or to exercise their own discretion and protect the welfare of minor children within their jurisdiction. . . . This court has recognized that a decree of a court of one state having jurisdiction relating to the custody of minor children, is, under the doctrine of ‘comity’ prevailing among sister states, entitled to recognition in this state. However, full faith and credit has only limited application to child custody decrees; it is inherent in the nature of such a decree that it is not final and conclusive, but is subject to the right of the parties to show a change of circumstances and conditions. . . .
“It is apparent that . . . the door is open wide, so to speak, to ‘forum shopping’. . . . Some decisions point out that such abuse may be prevented by the imposition of the ‘clean hands’ doctrine which prevents a parent from invoking the court’s jurisdiction if he is a fugitive from the state issuing such decree, or has made misrepresentations in some way to obtain the custody of the children, or is flaunting a foreign proceeding or decree. The doctrine seems to be making advancement in family law and is being relied upon in some jurisdictions where the circumstances merit its application. In cases of this character, the court is dealing with a matter equitable in nature where the child’s welfare is the paramount consideration, and it is a familiar equitable maxim that ‘[h]e who comes into equity must come in with clean hands.’ . . .
“The ‘clean hands’ doctrine, as applied in child custody cases, is an equitable one, is not an absolute, and is to be applied or not applied at the court’s discretion in each particular case. . . .”
Anderson v. Anderson, 214 Kan. 387, 520 P. 2d 1239, is factually similar to the case at hand. The Andersons were divorced in Minnesota. The trial court gave Mr. Anderson custody of the minor child, and granted Mrs. Anderson visitation privileges, including the right to bring the child to Kansas for four weeks during the summer. Mrs. Anderson brought the child here in the summer as authorized, and before the visit ended filed an action in the District Court of Sedgwick County alleging a change of circumstances and praying for a change of custody. While that action was pending and undetermined, Mr. Anderson, finding his child and former wife living in El Dorado, filed an action in habeas corpus in the District Court of Butler County. In his petition he set out the Minnesota decree and alleged that Mrs. Anderson was violating its provisions by retaining the child after her visitation rights expired. The trial court granted the writ. It gave full faith and credit to the Minnesota decree and, applying the “clean hands” doctrine, denied Mrs. Anderson’s request to introduce evidence showing a change of circumstances. We affirmed, relying upon and citing extensively from Perrenoud, supra.
We think the trial court here was fully justified in taking like action. Plaintiff complains that there was no evidence before the trial court on which to render such a decision. He points out that his answer constituted a general denial, thus putting in issue all of the factual allegations of the habeas petition. His answer, however, includes a copy of his verified petition in the change of custody action he had commenced. A comparison of the denials in the answer with the averments in respondent’s petition indicates that the general denial was not advanced in the utmost good faith.
Our rule, K. S. A. 60-208 (b) (since amended), provides in applicable part that a party:
“. . . [Slhall admit or deny the averments upon which the adverse party relies. . . . Denials shall fairly meet the substance of the averments denied. When a pleader intends in good faith to deny only a part . . . of an averment, he shall specify so much of it as is true . . . and shall deny only the remainder. . . .”
As Judge Gard notes in his Kansas Code of Civil Procedure, p. 33, the rule requires in substance that where a pleader denies generally, he must mean it. Respondent, in his answer, denied that the parties were divorced on April 9, 1969, in the Circuit Court of Oakland County, Michigan. He denied that that court granted the custody of Michael to Nancy and granted visitation privileges to him. In his petition, however, he alleged that the parties were divorced by decree of the Circuit Court of Oakland County in April, 1969; that the decree granted the custody of Michael to Nancy; and alleged that Michael was physically present in Johnson County, Kansas, visiting with respondent at his residence under the visitation orders entered by the Circuit Court of Oakland County, Michigan in its divorce decree. Further, he alleged that he remarried on May 10, 1969, the month following the entry of the decree. It was readily apparent to the trial court at the hearing, and is readily apparent to us, that respondent did not in good faith controvert the material allegations of the habeas petition. No useful purpose would have been served by requiring the petitioner to offer evidence to establish the allegations of her petition, when those allegations were not controverted. The answer, when read with the conflicting averments of the attached petition to change custody, did not constitute a specific denial of the material allegations of the petition.
Respondent’s counsel orally indicated a desire to offer evidence before the trial court in support of respondent’s application for a change of custody — not evidence challenging the allegations of the habeas petition. Under these circumstances it was not error for the trial court to accept the statements in the petition as true.
Respondent contends that the court erred in not holding an evidentiary hearing on his request to change custody. He contends that he was not “forum shopping”; that he came into court with “clean hands”; and that he was not in contempt under the Michigan court order since the show cause hearing had not yet been held. The court found that the Michigan custody order had not been vacated, modified or changed and that respondent received the minor child with the understanding that the child would be returned on August 28. Notwithstanding, respondent did not return the child to his mother in Michigan, but maintained him within this state. The Michigan court then entered its emergency order requiring respondent to immediately return the minor child to Michigan or show cause why he should not be punished for contempt. These findings of the trial court are supported by the record.
We hold that absent unusual circumstances, where a parent brings a child into this state for temporary visitation under an order of a court of another state, which has continuing jurisdiction to change or modify its decree, then in the interest of comity a Kansas court may, and in most instances should, give full faith and credit to the decree from our sister state and decline to hear on its merits an application to change custody made here under such circumstances. To hold otherwise would create chaos in child custody proceedings, discourage the granting of visitation privileges to nonresidents, aggravate relationships between separated spouses, and, most importantly, would adversely affect the children involved. Here, it is clear that respondent was holding the child in violation of the orders of the Michigan court. That court had, prior to the Kansas hearing, set the matter down for hearing. Respondent had notice of that setting. Under the circumstances, petitioner did not come into the District Court of Johnson County with “clean hands,” and the trial court did not abuse its discretion by declining to hear the application to change custody, and by giving full faith and credit to the Michigan proceedings, where the matter was already set and could be fully heard.
Petitioner also complains that the trial court erred in not transferring the habeas petition to division 5 of the District Court of Johnson County where his action to change custody was pending. Local rule 3 provides for the assignment of companion cases to the division having the lowest number. A similar question arose in Anderson v. Anderson, supra. There we noted that the habeas court might have deferred taking action until after final hearing on the pending change of custody action, but we held it was not required to give the earlier case priority. Similarly, we know of no legal impediment to the trial court’s proceeding to hear the habeas petition here.
As the United States Supreme Court observed in Fay v. Noia, 372 U. S. 391, 399, 400, 9 L. Ed. 2d 837, 83 S. Ct. 822:
“We do well to bear in mind the extraordinary prestige of the Great Writ, habeas corpus ad subjiciendum, in Anglo-American jurisprudence: ‘the most celebrated writ in the English law.’ 3 Blackstone Commentaries 129. It is ‘a writ antecedent to statute, and throwing its root deep into the genius of our common law. . . . It is perhaps the most important writ known to the constitutional law of England, affording as it does a swift and imperative remedy in all cases of illegal restraint or confinement. . . .’”
Habeas corpus has been described as a high prerogative common law writ of ancient origin. Its function is to provide a speedy and efficacious remedy to illegal restraint. Clearly, by its very nature, a proceeding in habeas corpus is entitled to priority; the judge is directed by statute to “proceed in a summary way to hear and determine the cause. . . .” K. S. A. 60-1505 (a). We conclude that the trial court did not err in proceeding to hear the matter with dispatch on the return date of the writ, and in denying the requested transfer to division 5 under local rule 3.
Finally, respondent contends that the trial court committed reversible error in faffing to grant a stay of its order pursuant to K. S. A. 60-1505 (d). Respondent, however, has sustained no prejudice and we therefore need not consider this point.
For the reasons stated, 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, Terry L. McClain, from convictions of murder in the first degree in violation of K. S. A. 1973 Supp. 21-3401 and aggravated robbery in violation of K. S. A. 1973 Supp. 21-3427.
Defendant raises four points. He contends that the trial court erred in permitting a Topeka police officer, Lieutenant Davis, to testify about the reading of the “Miranda warning” to the defendant by another police officer, Corporal Meyer, who was not called as a witness. Defendant objects to the testimony on the ground that it was hearsay. He thus concludes that a proper foundation was not laid for the admission of his statement. He contends that the court erred in admitting a statement he made to Deputy Williams, since Williams did not advise defendant of his rights; Williams knew that defendant was in a depressed state, and Williams knew that McClain was represented by an attorney who was not present. He contends that the court erred in failing to declare a mistrial because of improper remarks made during the state’s closing argument. And finally, he contends that his trial counsel was incompetent and ineffective.
The facts of the offense are not important to a determination of the questions raised. The bullet-riddled body of Gene Scott, an area manager for the Seven-Eleven stores, was discovered lying in a ditch in rural Shawnee County, Kansas, on July 9, 1974. Apparently some $5000 had been taken from Scott. The defendant is a former employee of the food chain. He was arrested a few days later and was charged with murder and robbery.
He was interviewed by Lieutenant Frank Davis of the Topeka Police Department. Davis testified that he was assigned to interview the defendant. Davis, Corporal Meyer and the defendant were present in M-Squad headquarters. Davis was permitted to testify, over objection, that Corporal Meyer advised defendant of his rights by reading the Miranda warning "as printed on our blue card.” Davis testified fully as to the rights covered in the warning which was read, and that McClain indicated to Davis and Meyer that he understood those rights.
Defendant objected to Davis’ testimony concerning the advice of rights on the grounds that it was hearsay, and he urges that here as his first point on appeal. The state counters that the testimony was not hearsay, but if it was hearsay then it falls within exceptions to our hearsay rule, K. S. A. 60-460 (d), as a contemporaneous statement. Before examining the exceptions we turn first to the definition of hearsay evidence contained in the statute. It states that hearsay evidence is “Evidence of a statement which is made other than by a witness while testifying at the hearing” and which is “offered to prove the truth of the matter stated.” (Emphasis supplied.)
2 Wharton’s Criminal Evidence (13th Ed.) § 274, states the rule as follows:
“An extrajudicial statement is inadmissible as hearsay only when offered as evidence of the truth of the matter to which it relates. If the statement is offered merely to show the fact of its having been made, it is admissible through the person who heard it. . . .”
6 Wigmore on Evidence (3d Ed.) § 1766, states:
“. . . The essence of the Hearsay rule is the distinction between the testimonial (or assertive) use of human utterances and their nontestimonial use.
“The theory of the Hearsay rule ... is that, when a human utterance is offered as evidence of the truth of the fact asserted in it, the credit of the assertor becomes the basis of our inference, and therefore the assertion can be received only when made upon the stand, subject to the test of cross-examination. If, therefore, an extrajudicial utterance is offered, not as an assertion to evidence the matter asserted, but without reference to the truth of the matter asserted, the Hearsay rule does not apply. . . .”
And, see, 2 Jones on Evidence (6th Ed.) § 8:6 which gives the following explanation:
“If a statement previously made out of court is offered in evidence through a witness . . . not for the purpose of establishing tire truth of the matter stated, but merely for the purpose of establishing the fact that the statement was made, the evidence is admissible, if it is relevant, and it is not subject to the exclusionary impact of the hearsay rule.
“One prominent class of such statements [is] often referred to as verbal acts . . .”
In State v. Rhoten, 174 Kan. 394, 400, 257 P. 2d 141, we held that the testimony of an officer that he heard statements such as “Place your bets” and “New man shooting” emanating from a building in which it was alleged that a dice game was in progress was not hearsay but was original evidence, under the rule set forth in § 1766 of Wigmore, supra.
Clearly the state was not attempting to prove the truth of the matter stated, viz., the Miranda warnings. The evidence was offered for the purpose of establishing that the warnings were stated and explained to the defendant prior to the interview. The witness heard the warnings read and he may say so.
We conclude that the testimony of Lieutenant Davis was not hearsay. The trial court, after an extensive Jackson v. Denno hearing out of the presence of the jury, determined that defendant’s statement was entirely voluntary, and permitted both Lieutenant Davis’ testimony as to the advice of rights, and defendant’s subsequent statement, to go to the jury. We find no error in the admission of the testimony, and none in the admission of defendant’s statement.
McClain’s second complaint is that the trial court erroneously admitted into evidence statements he made to Deputy Sheriff Williams while he was in custody, without a showing having been made that he was advised of his rights. He argues that Williams knew that he was depressed; that Williams had heard that he had attempted suicide; and that Williams was aware that he was represented by counsel and made no attempt to have his counsel present at the time of the interview. The record reveals that Deputy Williams was at the time working in the narcotics and vice department of the Shawnee County sheriffs office. He was also assigned to the security detention at the jail. Defendant approached Williams on November 28, 1974, and asked Williams if he had a few minutes to talk with him. Williams stated that he was busy and defendant asked if he could get back and talk to him the next day. On the following day Williams was escorting two other prisoners when defendant approached him and the conversation to which defendant now makes objection occurred. Williams was not assigned to investigate the charges against the defendant and had never interrogated him. On the occasion in question the record is clear that the defendant initiated the conversation and made voluntary statements to Williams. The record further discloses that defendant had been advised previously as to his Miranda rights. The trial court, in ruling upon the admissibility of the conversation between defendant and Deputy Williams at the conclusion of the Jackson v. Denno hearing, said:
"The Court: . . . The evidence here has been that the statement was made at the request of the defendant. He initiated the conversation. There is no evidence to show that in any way that was not his free and voluntary act. The fact that his attorney may not have wanted him to talk to anyone in the jail is not the controlling factor here. ... [T]he defendant . . . had previously been advised of his rights and there is no showing that it was other than a completely voluntary statement. The fact that he might have been depressed — being placed under a murder charge would be depressing and incarceration in the jail. There was no showing that there was any interference with his thought processes such as to deprive him of the ability to make a voluntary statement. So the Court finds that the testimony can be admitted.”
The defendant relies upon cases where investigative agents have conducted planned interrogations of an accused in custody without notifying his counsel. Such cases are not persuasive where, as here, a person in custody initiates a conversation with law enforcement officers and makes voluntary statements. The trial court’s comments on the evidence were correct, and its ruling admitting the testimony was likewise proper.
Defendant next contends that the trial court erred in not declaring a mistrial after the prosecutor made the following statement to the jury in closing argument:
“. . . Ladies and gentlemen, there’s been everything here all through this case to show a malicious disposition by this defendant towards Mr. Scott; and this is just the last step in his malice toward Mr. Scott by trying to cast this whole thing off onto Mr. Scott, trying to clean his own skirts, if you please. And I’ll ask you conscientiously as jurors of this community — Don’t let the defendant get away with this one too. . . .”
Counsel for the defendant then requested a mistrial, contending that the argument was extremely prejudicial and improper. The trial court overruled the objection and did not admonish the jury to disregard the comment.
Defendant’s testimony at the trial was to the effect that Scott, the deceased, had been bilking his employer; that Scott planned the activity which resulted in his death; that Scott inveigled the defendant to assist him in carrying out the plan; that the defendant attempted to withdraw, whereupon Scott pulled a revolver and pointed it at defendant’s head; that a scuffle ensued and the firearm accidentally discharged.
If the jury believed defendant’s testimony that Scott had planned the robbery, it could well have believed that Scott’s death was accidental. Therefore, it was the prosecutor’s argument that the defendant’s contention .that he and Scott were partners was a fabrication, as was his claim that the firearm discharged accidentally. Scott was found to have suffered eight bullet wounds; defendant was unable to recall how more than one bullet was discharged. Under these facts and circumstances we conclude that the prosecutor’s remarks amounted to fair comment upon the evidence and did not exceed the scope of the issues presented in the case.
Defendant’s final point is that he was denied the effective assistance of counsel. He argues that such incompetency is disclosed by the failure of his counsel to secure a ruling upon his motion for change of venue prior to the conclusion of the voir dire; and by the failure of his counsel to be prepared to proceed with his defense immediately upon close of the state’s evidence. The record discloses that the state rested at about noon on a Thursday. Defendant’s counsel had anticipated that the state would not complete the presentation of its evidence until Friday, and counsel had subpoenaed defense witnesses in for the following Monday. The court granted a recess from about two o’clock on Thursday afternoon until Friday morning, at which time opening statements were made on behalf of the defense, and defendant’s evidence was then presented.
With reference to the motion for change of venue, the record indicates that the motion was adequately prepared and presented, taken under advisement by the court, and ruled upon at the conclusion of the voir dire. Nothing in the record indicates incompetency by counsel for the defendant.
Defendant notes the test for adequacy of counsel found in State v. Wheeler, 215 Kan. 94, 96, 523 P. 2d 722, wherein this court, quoting from Winter v. State, 210 Kan. 597, 603, 502 P. 2d 733, said:
“ . . To be a denial of an accused’s constitutional rights it must clearly appear that the representation of the accused was wholly ineffective and inadequate. . . .”’
Nevertheless, defendant urges that this court abandon this test in favor of the test found in Beasley v. United States, 491 F. 2d 687, in which the Sixth Circuit Court of Appeals held:
. . Defense counsel must perform at least as well as a lawyer with ordinary training and skill in the criminal law . . .” (p. 696.)
By either standard the efforts of defendant’s trial counsel did not deny him effective assistance of counsel. The trial was not a sham or a mockery. Defendant was adequately represented by competent counsel. We find no error.
The judgment of the trial court is affirmed.
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The opinion of the court was delivered by
Fromme, J.:
Earl Hall appeals from a jury conviction of burglary (K. S. A. 21-3715) and felony theft (K. S. A. 21-3701). Seven points are raised and will be considered, but first a brief statement of facts.
The J. C. Penney store at 722 Minnesota Avenue in Kansas City, Kansas, was burglarized at midnight on May 7, 1975. Two glass doors were broken and four green leisure suits worth $120 were missing. A witness testified he was sitting on the front steps of the Y. M. C. A. building, which is about a half block from the intersection of 7th Street and Minnesota Avenue. While sitting there he saw an individual wearing brown pants, golf cap and a brown shirt with a flowery type design walking east on Minnesota Avenue just before midnight. A short time later he heard an alarm go off. About three minutes after hearing the alarm the witness saw the appellant, Earl Hall, come through the alley across the street from where the witness was sitting. The witness testified that appellant first looked up and down the street, then ran across the street and into the Y. M. C. A. building. The appellant, carrying several light green suits on hangers with J. C. Penney price tags hanging from them, passed within a few feet of this witness.
The witness, Joe Copeland, further testified he next saw appellant leaving the building without the suits and walking north on 8th Street. Copeland called the Kansas City Police Department and gave a physical description of the man as well as a description of his clothing. A police broadcast on the burglary was sent out which gave a description of the suspect and of the clothes he was wearing. A police officer heard the police broadcast and arrested the suspect three blocks north of the Y. M. C. A. building.
The suspect was transported to police headquarters, placed in a line-up and identified by the witness Copeland that same day.
The leisure suits were recovered from a room in the Y. M. C. A. building which had been rented by appellant’s brother. Joe Copeland testified at the trial that he was personally acquainted with the brother, Rahn Hall, and Rahn was not the person who had carried the suits into the building. Rahn had been in a car wreck and had his face bandaged at the time this incident occurred, so the witness could not have been mistaken in identifying the appellant.
Additional facts will be developed in discussing the points raised on appeal. The first point concerns the appearance of the appellant in jail clothing in full view of the jury panel. The jury panel had been sworn to answer questions on the voir dire examination. At that time appellant’s trial attorney approached the bench and made the following request out of the hearing of the jury panel:
“I’d like to make two requests: I’d like to ask that this entire panel be dismissed for the reason that my client is supposed to be brought down here in civilian clothes, not his jail clothing. I’d like the record to reflect he’s got a black silk, sleeveless, nylon T-shirt on, pair of blue slacks, come up just below his knees, and pair of long black socks and house slippers on.”
The trial court denied the request for a mistrial but declared a recess and directed that the appellant be permitted to dress in civilian clothes. The appellant returned to the courtroom dressed in civilian clothes. The same jury panel was then recalled and the selection of the jury proceeded.
This raises a question of first impression in Kansas. The federal courts and several state courts have discussed the issue. The cases have been collected in an annotation which considers the propriety and prejudicial effect of compelling the accused to wear prison clothing at a jury trial. See 26 A. L. R. Fed. 535, anno. — Wearing Prison Garb at Jury Trial. Fair trial concepts, similar to those inherent in the U. S. Constitution, are incorporated in 'the Constitution of the State of Kansas, Bill of Rights, § 10. In addition to our constitutional provision there is a statutory declaration that a defendant in a criminal trial shall be presumed innocent until the contrary is proven. (K. S. A. 21-3109.)
Most federal courts have held that to compel a prisoner to stand trial in prison clothing, which is clearly identifiable to a jury such as clothing with numbering or lettering appearing thereon, constitutes a denial of the prisoner’s right to the presumption of innocence as guaranteed by the due process clause of the United States Constitution. (See Hernandez v. Beto, [5 CA 1971] 443 F. 2d 634, cert. den. 404 U. S. 897, 30 L. Ed. 2d 174, 92 S. Ct. 201; Bentley v. Crist, [9 CA 1972] 469 F. 2d 854; Gaito v. Brierley, [3 CA 1973] 485 F. 2d 86, 26 A. L. R. Fed. 529.)
There can be 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 Bill of Rights, § 10 and K. S. A. 21-3109. This practice, if it exists in Kansas, should be discontinued.
However, if a prisoner voluntarily chooses to be tried in prison garb or fails to object at the trial, his voluntary action or lack of action may constitute an effective waiver of his right to appear at the trial in civilian clothing. (Gaito v. Brierley, supra; Lemons v. United States, [3 CA 1974] 489 F. 2d 344; Estelle v. Williams, 425 U. S. 501, 48 L. Ed. 2d 126, 96 S. Ct. 1691.)
There was-no waiver or voluntary appearance by the appellant in this case. Appellant requested that he be permitted to put on his civilian clothes before being brought into the courtroom. In addition his attorney brought the matter to the attention of the trial judge. 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. (Watt v. Page, [10 CA 1972] 452 F. 2d 1174, cert. den. 405 U. S. 1070, 31 L. Ed. 2d 803, 92 S. Ct. 1520; Anderson v. Watt, [10 CA 1973] 475 F. 2d 881; United States v. Williams, [10 CA 1974] 498 F. 2d 547.)
In the present case the appellant’s appearance in court dressed in prison garb was of limited duration. The trial judge promptly corrected the situation when it was first brought to his attention. The major portion of the trial occurred after appellant had changed into civilian clothing. The appellant was dressed in civilian clothing during the questioning on voir dire and during the entire remainder of the trial proceedings. There is nothing in the record before us to indicate that a single juror was aware of the distinct nature of the clothing worn by appellant during his first appearance. No prejudice has been shown and if we‘were to reverse this case it would have to be on a holding that an appearance in prison garb per se results in an unfair trial. This we refuse to do. The evidence of guilt was clear and convincing. We can say beyond a reasonable doubt that the brief appearance of appellant in prison garb did not have substantial effect upon the ultimate verdict. (See State v. Fleury, 203 Kan. 888, Syl. ¶2, 457 P. 2d 44.)
The second point concerns the limitation on evidence affecting the credibility of the state’s principal witness, Joe Copeland. On cross-examination he testified he had been a security officer for an organization and had resigned pending suspension. The suspension had arisen from some incident in which he had an accident while engaged in a high speed chase of a traffic violator. He further testified he was implicated in another incident involving the theft of stereo speakers. When the defense put on its evidence it called Copeland’s supervisor at the time Copeland was discharged as a security officer. This supervisor testified that Copeland had been fired and that he had lied when he said he resigned pending a suspension. The trial court limited the testimony of this witness and would not let the defense go into the facts of the specific incident any further.
K. S. A. 60-420 provides:
“Subject to sections 60-421 and 60-422, for the purpose of impairing or supporting the credibility of a witness, any party including the party calling him may examine him and introduce extrinsic evidence concerning any conduct by him and any other matter relevant upon the issues of credibility.”
Contrary to the contention of the defense made during the trial, K. S. A. 60-422 does not authorized any particular type of evidence bearing on credibility, it imposes limitations on its admissibility. In our present case the credibility of Copeland was the focal point and the limitation on inquiry was as to specific facts of the incident. A trial judge must be given judicial discretion in determining the relevancy and extent of extrinsic evidence which is offered to test the credibility of a witness under K. S. A. 60-420. In the absence of court discretion to control the extent of credibility evidence the true issues in a criminal trial might well be obscured by trial of the witnesses.
In discussing the limitation imposed by K. S. A. 60-422 (d) this court in State v. Humphrey, 217 Kan. 352, 537 P. 2d 155, said:
“It has been stated that the reason for the restriction is that where character is only incidentally involved it would not be expedient to let the trial go off on collateral tangents which would result from trying out the factual issues involved in the proof of specific instances of conduct. . . .” (p. 364.)
On the issue of credibility of a witness the trial court’s determination as to the proper extent and limitation on extrinsic evidence will not be reversed on review except for an abuse of judicial discretion which affirmatively appears to have affected the substantial rights of the party complaining. (K. S. A. 60-2105; State v. Winston, 214 Kan. 525, 520 P. 2d 1204.) We find no abuse of discretion.
As his third point appellant complains of the testimony of a police officer concerning communications with the police dispatcher about the burglary, the description of the suspect and the whereabouts of the suspect when last seen by Copeland. Appellant argues that the contents of the police dispatch were inadmissible as hearsay. The matter has been repeatedly considered and disposed of in prior cases. When an officer testifies as to the details of a police dispatch overheard by him, merely to provide some explanation for his subsequent actions in locating the defendant, the details of the police dispatch are admissible in evidence. Testimony is not inadmissible as hearsay evidence when it is not offered to prove the truth of the matter asserted. It is hearsay but it is not inadmissible as such. (See State v. Trotter, 203 Kan. 31, 453 P. 2d 93; State v. Hollaway, 214 Kan. 636, 522 P. 2d 364; State v. Ritson, 215 Kan. 742, 529 P. 2d 90.)
The appellant’s fourth point raises questions concerning the composition and fairness of the line-up. It was conducted the day of the burglary. Appellant was a black man and four black males from the county jail participated. There was a variance of from two to three inches in height and from 15 to 35 pounds in weight. The identifying witness, Copeland, made a positive identification of appellant. Copeland had seen the appellant at close range and on three different occasions immediately prior to and after the burglary. The identifying witness was directed to pick out the appropriate suspect. He was not advised that he was under no obligation to identify anyone.
Some factors to be considered in evaluating the likelihood of misidentification at a line-up are (1) the opportunity of the witness to view the accused at the time of the crime, (2) the witness’ degree of attention, (3) the accuracy of the witness’ prior description of the accused, (4) the level of certainty displayed by the witness at the confrontation, and (5) the length of time between the crime and confrontation. See State v. Bey, 217 Kan. 251, 535 P. 2d 881.
On consideration of the totality of the circumstances surrounding the line-up we find nothing unnecessarily suggestive or conducive to an irreparable mistaken identification. The motion to suppress evidence of the line-up identification was properly overruled after applying the guidelines set forth in State v. Bey, supra; State v. Deffenbaugh, 217 Kan. 469, 536 P. 2d 1030; State v. Carney, 216 Kan. 704, 533 P. 2d 1268; and State v. McCollum, 211 Kan. 631, 637, 507 P. 2d 196.
Appellant’s fifth specification relates to the following instruction:
“In order to return a verdict, all jurors must agree upon the verdict. In pursuing such a goal, jury deliberation should be conducted in a businesslike manner. Upon submission of a case to it, the jury should first select a foreman. He should see to it that discussion goes forward in a sensible and orderly fashion and that each juror has the opportunity to discuss fully and fairly.
“The attitude and conduct of jurors at the outset of their deliberations are matters of considerable importance. It is rarely helpful for a juror, upon entering the jury room, to make an emphatic expression of his opinion on the case or to announce a determination stand for a certain verdict. The result of conduct of this nature might be that a juror because of personal pride would hesitate to recede from an announced position when shown that it is fallacious. It is natural that differences of opinion will arise. When they do, each juror should not only express his opinions but the reasons upon which he bases them. Although a juror should not hesitate to change his vote when his reason and judgment [are changed, each juror should vote according to his honest judgment], applying the law from the instructions to the facts as proved. If every juror is fair and reasonable a jury can almost always agree. It is your duty as jurors to consult with one another and to deliberate with a view to reaching an agreement if you can do so without violence to your individual judgment.”
The instruction was given along with the other instructions. Appellant argued on his motion for new trial that the instruction was too lengthy and confusing. A similar argument is made on appeal. The instruction in question was taken from PIK Civil 1.07. We see nothing coercive or confusing about it for it appears to be a fair statement concerning the necessary procedure to be followed by the jury and the proper attitude which the jurors should maintain in the jury room.
The sixth specification of error accuses the trial judge of lecturing the jury and of improperly having the oath of jurors reread to them. The jury had deliberated for three hours. They were called into the courtroom before being allowed to go home at the end of their first day of deliberations. The judge gave them the usual admonition against discussing the case with anyone outside the jury room. He further directed the jurors to report back the following morning at nine o’clock and asked the court reporter to reiterate the oath which the jurors had previously taken. The oath was recited and the judge then said:
“The Court: Now, that is the oath that you took. If you will read the Instructions, it will tell you what to do. Now, tomorrow morning, when you come back and go back up there to deliberate, I want you to read the Instructions, and proceed. Everyone must participate.”
As an explanation of the judge’s final comment on participating, it should be mentioned that a note had previously been sent by the foreman of the jury advising the judge that one member of the jury would not vote.
Although a trial judge cannot be permitted to intimidate and coerce a jury, it is impossible for this court to say this jury was intimidated or coerced by this particular discourse. The judge’s remarks do not approach the level of the “Allen type instruction” cautioned against in such cases as State v. Troy, 215 Kan. 369, 524 P. 2d 1121; State v. Boyd, 206 Kan. 597, 481 P. 2d 1015, cert. den. 405 U. S. 927, 30 L. Ed. 2d 800, 92 S. Ct. 977; Bush v. State, 203 Kan. 494, 454 P. 2d 429; and State v. Earsery, 199 Kan. 208, 428 P. 2d 794. The danger in giving an intimidating or coercive instruction arises when a jury has reported its failure to agree on a verdict. Under such circumstances a coercive instruction might induce a jury to return a verdict which they would not otherwise have reached. The jury in this case had been instructed to report a failure to agree, if such should happen, by having the foreman send the judge a written note to that effect. No such failure to agree was reported.
As to appellant’s final point, we have examined the notes sent to the judge by the jury foreman. It is not contended that these notes were improperly handled or answered. The argument made is that the notes show the jury was confused on certain matters and that a mistrial should have been declared. The argument is without merit.
The judgment on these convictions is affirmed.
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The opinion of the court was delivered by
Fromme, J.:
Appellant, Roy Nelson Powell, has perfected this appeal from a jury conviction on a felony charge of giving a worthless check (K. S. A. 21-3707). The offense charged was committed against Thompson Electric, Inc., of Shawnee Mission, Kansas.
The state’s evidence consisted primarily of circumstantial evidence. Frank Thompson, part owner of the electric company, testified that on July 9, 1974, an unidentified man telephoned Thompson Electric, Inc., said he was a representative of Powell Material Company and requested price information on various types of electrical wire. Thompson quoted prices and the unidentified man placed an order for wire. It should be noted that Powell Material Company is a sole proprietorship owned by appellant. Subsequently Thompson filled out an invoice to Powell Material Company for the goods which had been ordered of the value of $93.22. The invoice and goods were placed in the display area of the store. Neither Thompson nor his employees recalled who picked up the wire. However, on July 10, Thompson found the invoice on his desk marked paid and a check attached for $93.22 signed by appellant.
Thompson testified he processed the checked through his company’s checking account and it was subsequently returned by the drawee bank marked “insufficient funds”. A seven day bad check notice was mailed on August 7, 1974, to the address of Powell Material Company by registered mail. The notice informed the ap pellant that he had seven days after receipt of the notice to' pay the check and that failure to pay would result in the filing of a complaint. The notice letter was returned to Thompson on August 10. A post office notation on the envelope stated that the mail box at that address had been discontinued. Thompson then attempted to contact appellant by telephone. Failing in that, Thompson then visited appellant and confronted him with the worthless check. Appellant told Thompson thaj: the check was good and assured him that it would be paid if it were resubmitted to the bank. Thompson visited the bank and tendered the check. Payment was again refused on the ground of insufficient funds.
On September 6, 1974, appellant was charged with violating K. S. A. 21-3707 and subsequently convicted by a jury. On. December 6, 1974, appellant filed a motion for new trial. It was denied. On the latter date the state notified appellant that it intended to. invoke the habitual criminal act to enhance his sentence. On January 9, 1975, appellant was sentenced to a prison term of one to ten years under K. S. A. 21-4504 (1) (a).
On appeal appellant contends the trial court erred in admitting evidence which disclosed that during June, July, August, and September, 1974, appellant wrote numerous worthless checks on this and other bank accounts totaling some $9,000.00. The ledger sheets of the bank upon which the check was drawn indicated that at no time between July 2, and August 30, was the balance in appellant’s account sufficient to cover the $93.22 check. Appellant sought, unsuccessfully, to suppress this evidence prior to the commencement of trial.
The state argued that under K. S. A. 60-455 ledger sheets which reflected that defendant had written bad checks both before and after the subject transaction were admissible to prove issues in dispute including intent, knowledge, design and plan. The court ruled this evidence admissible.
Appellant’s argument regarding the alleged inadmissibility of similar offenses is difficult to follow. He intimates that the prejudicial nature of the evidence so outweighed its probative value that it should not have been admitted.
This court has recognized that a trial court must employ a balancing procedure by weighing the probative value of evidence against its tendency to prejudice the jury where the state seeks to introduce evidence of other crimes. Sound judicial discretion must be employed and such evidence should not be admitted where it has no real probative value and does not tend to prove a fact substantially in issue. (See K. S. A. 60-455; State v. Bly, 215 Kan. 168, 175, 176, 523 P. 2d 397; and State v. Gunzelman, 210 Kan. 481, 502 P. 2d 705, 58 A. L. R. 3d 522.)
In the present case the probative value of the evidence was weighed in a hearing conducted out of the presence of the jury. The defense raised material issues on intent, plan, knowledge, identity, and. absence of mistake, which issues were contested in this case. Appellant presented an alibi witness at trial who< claimed that appellant was in Utah or Colorado when the crime was committed. Appellant also submitted evidence which suggested that the $93.22 check was passed by some unidentified individual who had stolen it from appellant’s business premises. Evidence that numerous worthless checks had been written against appellant’s account over a four month period, which included the date of issuance of the check in question, tended to refute the stolen check defense. This evidence also tends to indicate that appellant knew his bank account contained insufficient funds to cover the check and that he intended to defraud Thompson Electric, Inc. Similar offenses committed in the community by appellant on or near the date of the present crime were relevant to prove intent to defraud, plan, knowledge, identity and absence of mistake. Under these circumstances the probative value of the evidence substantially outweighs the prejudicial nature of the documents that reflect the commission of other similar offenses during the period in question.
Appellant argues that evidence of other offenses was improperly admitted by the trial court in violation of K. S. A. 60-447. That statute provides:
“Subject to section 60-448 when a trait of a person’s character is relevant as tending to prove his conduct on a specified occasion, such trait may be proved in the same manner as provided by section 60-446, except that (a) evidence of specific instances of conduct other than evidence of conviction of a crime which tends to prove the trait to be bad shall be inadmissible, and (b) in a criminal action evidence of a trait of an accused’s character .as tending to prove his guilt or innocence of the offense charged, (i) may not be excluded by the judge under section 60-445 if offered by the accused to prove his innocence, and (ii) if offered by the prosecution to prove his guilt, may be admitted only after the accused has introduced evidence of his good character.”
Appellant reads this statute as limiting the type of evidence which may be admitted under 60-455 and argues that evidence of the other offenses in this case are inadmissible because no convictions had been obtained for the other offenses.
Conviction is not a prerequisite to the admission in evidence of other similar offenses pursuant to K. S. A. 60-455 if the requirements for admission are otherwise fulfilled. (State v. Anicker, 217 Kan. 314, 536 P. 2d 1355; State v. James, 217 Kan. 96, 535 P. 2d 991; State v. Lamb, 215 Kan. 795, 530 P. 2d 20.)
Appellant misinterprets K. S. A. 60-447. The final provision of that statute allows evidence of prior convictions in a criminal case to rebut evidence of good character first introduced by the defense. Thus while a defendant is protected by 60-455 from prosecution attempts to prove a present crime by showing criminal predisposition, that protection is waived as to prior convictions involving dishonesty and false statement when a defendant puts his character in issue in an effort to support his credibility or disprove his participation. (See K. S. A. 60-421; State v. James, supra, at p. 97; and 4 Vernon’s Kansas Statutes Annotated, Code of Civil Procedure, §60-447, p, 359.)
The appellant did not testify at this trial and he did not introduce evidence of character or reputation. His credibility was not an issue and neither K. S. A. 60-421 nor K. S. A. 60-447 applies.
In a prosecution for issuing a worthless check under K. S. A. 21-3707 bank ledger sheets tending to show that the bank account on which the check was drawn contained insufficient funds to cover said check and various other checks issued before, on and after the date of the issuance of the check in question are relevant and admissible in evidence to establish the charge. The ledger sheets are not inadmissible merely because they tend to establish additional crimes by the defendant involving the issuance of other worthless checks during the same period of time. Evidence otherwise relevant in a criminal prosecution is not rendered inadmissible because it may show a crime other than that charged. (State v. Calvert, 211 Kan. 174, Syl. 6, 505 P. 2d 1110.)
Appellant contends he is not responsible for giving the worthless check because the payee’s name was misspelled (Thompon Electric) and the payee endorsed the check with its name correctly spelled (Thompson Electric, Inc.) when it presented the check for payment. The endorsement which appears on the check is “Thompson Electric, Inc. by Frank A. Thompson, Pres”. Appellant claims that the check as endorsed was not properly payable when presented to the drawee bank. He concludes that upon these facts he cannot be held criminally responsible for issuing an insufficient fund check.
The gravamen of the offense of giving a worthless check as proscribed by K. S. A. 21-3707 is the act of putting a negotiable check into circulation with knowledge that sufficient funds or credit are not on deposit to pay the amount specified in the instrument. The offense is complete when such an instrument is issued with intent to defraud, and it is not necessary to show that the check was presented for payment at the drawee bank in order to prove the crime. Reviewing the nature of a similar offense in State v. Haremza, 213 Kan. 201, 515 P. 2d 1217, this court made the following observation:
“. . . A careful study of 21-3707 (1) shows clearly that the refusal of the bank to pay a check on. presentation for payment is not one of the elements of the offense. The statutory elements of the offense are that the defendant issued a check, that the defendant knew there were insufficient funds in the bank at the time the check was issued and that the defendant did so with intent to defraud. When these elements are established the crime is complete. . . .” (pp. 208, 209.)
(Also see 32 Am. Jur. 2d, False Pretenses, § 79, p. 224, and 35 C. J. S. False Pretenses, § 21, p. 828.)
Other jurisdictions have held that it is not necessary that a check or draft used to obtain possession of money or merchandise be complete in form in order to constitute the crime of passing a worthless check if the instrument can be negotiated by the payee upon proper endorsement. (See People v. Harris, 39 Cal. App. 3d 965, 114 Cal. Rptr. 892; State v. Campbell, 70 Idaho 408, 219 P. 2d 956; King v. State, 308 S. W. 2d 40 [Tex.Cr.App. 1957]; State v. Donaldson, 14 Utah 2d 401, 385 P. 2d 151.)
In this case, although a bank officer testified that the drawee bank considered the endorsement insufficient to support payment, the bank refused payment to Thompson because appellant’s account contained insufficient funds. Despite the misspelling of the payee’s name, the instrument was a valid and negotiable check if properly endorsed by the payee as provided in K. S. A. 84-3-203 of the Uniform Commercial Code. K. S. A. 84-3-203 provides:
“Where an instrument is made payable to a person under a misspelled name or one other than his own he may indorse in that name or his own or both; but signature in both names may be required by a person paying or giving value for the instrument.”
The crime was complete once the worthless check was issued and placed in circulation by appellant with intent to defraud Thompson.
Appellant next contends that the trial court erred in giving an instruction which defined circumstantial evidence and discussed the weight to be afforded such evidence in determining guilt or innocence.
In State v. Wilkins, 215 Kan. 145, 523 P. 2d 728, it was held:
“An instruction on circumstantial evidence, which cautions the jury that a defendant should not be found guilty unless the facts and circumstances proved exclude every reasonable theory of innocence or states that the jury cannot convict the defendant on circumstantial evidence unless the circumstances exclude every reasonable hypothesis of his innocence, is unnecessary when a proper instruction on ‘reasonable doubt’ is given; overruling State v. White, 211 Kan. 862, 508 P. 2d 842, and all other decisions in which this court has required a special instruction on circumstantial evidence.” (Syl. 6.)
Reaching this conclusion in Wilkins this court emphasized that it is the province of the jury to weigh evidence and a trial court should not by its instructions attempt to stress the comparative weight or strength of any particular type of evidence. (See also State v. Murray, 200 Kan. 526, 437 P. 2d 816.)
The situation in this case is similar to that in State v. Holloway, 219 Kan. 245, 547 P. 2d 741. In Holloway it was held that although the term “reasonable doubt” should not be further defined in jury instructions, the giving of an instruction defining reasonable doubt does not result in prejudicial error.
It is the province of the jury to weigh the evidence and a trial court should not by its instructions attempt to stress the comparative weight or strength of any particular type of evidence. An instruction that the jury should not find the defendant guilty on circumstantial evidence alone unless the facts and circumstances exclude every reasonable theory of innocence need not be given, but the giving of such an instruction is generally beneficial to the defendant and no reversible error accrues to a defendant-appellant if such instruction is given.
Appellant’s next contention is that the court erred by instructing on the statutory presumption to prove an intent to defraud. The court instructed the jury:
“In any prosecution against the maker or drawer of a check, payment of which has been refused by the bank on account of insufficient funds, the making, drawing, issuing or delivering of such check shall be prima facie evidence of intent to defraud and of knowledge of insufficient funds in, or on deposit with, such bank, providing such maker or drawer shall not have paid the holder thereof the amount due within seven days after notice has been given to him that such check has not been paid by the bank.
“The word ‘notice’, as used herein, shall be construed to include notice to the person entitled thereto given orally as well as notice given to such person in writing. Notice in writing shall be presumed to have been given when deposited as restricted matter in the United States mail, addressed to the person to be charged with notice at his address as it appears on such check, draft or order.
“As used in this instruction, ‘prima facie evidence’ is evidence that on its face is true, but may be overcome by evidence to the contrary.”
The foregoing instruction properly explains the statutory presumption set forth in K. S. A. 21-3707 (2). Appellant cites State v. Haremza, supra, in which this court examined this statutory presumption and said:
“. . . In order for the presumption to come into play the facts which must be proven are as follows: (1) The defendant must have made or drawn the check; (2) payment must have been refused by the drawee on account of insufficient funds; (3) after notice was given to the defendant that such check was not paid, the defendant failed to pay the holder of the check the amount due thereon- within seven days after notice. . . .” (213 Kan. p. 206.)
There was evidence introduced to establish the three requirements.
Appellant argues that the evidence in the lower court did not establish that he issued the check or that he received notice it had been dishonored. A review of the evidence in the record contradicts appellant’s claim. It is undisputed that Thompson contacted appellant personally and told him payment had been refused. He did not deny that the check was his when he was confronted with it. In addition evidence was introduced to establish that appellant did sign the check as maker. Evidence was further introduced at trial which disclosed the unsatisfactory condition of appellant’s checking account when the check was issued. The statutory presumption set forth in K. S. A. 21-3707 (2) is simply a permissive ■rule of evidence and does not add to the elements of the offense of giving a worthless check. (State v. Haremza, supra, at p. 209.) There was substantial evidence in this case that appellant intended to defraud Thompson apart from the statutory presumption. The giving of the instruction was proper.
Appellant next contends the evidence below was insufficient to support the jury’s verdict and that the lower court should have sustained his motion for acquittal. On appellate review this court will not overturn the decision of the jury where the facts and circumstances disclosed by the evidence support a reasonable inference of guilt. (State v. Soverns, 215 Kan. 775, 529 P. 2d 181; State v. Austin, 209 Kan. 4, 495 P. 2d 960. State v. Trotter, 203 Kan. 31, 453 P. 2d 93.) The evidence here is clearly sufficient to sustain the conviction.
Finally appellant argues that the state improperly invoked the habitual criminal act (K. S. A. 21-4504) to increase his sentence without proper notice and hearing.
In State v. Myers, 215 Kan. 600, 527 P. 2d 1053, it is said:
“Due process of law requires that a defendant have a reasonable notice that the habitual criminal law may be invoked. (Jackson v. State, 204 Kan. 841, 466 P. 2d 305). The state is not required to give an accused notice of its intention to invoke the habitual criminal act prior to trial or prior to submission of a case to a jury. Reasonable notice is all that is required. (State v. Pappan, 206 Kan. 195, 477 P. 2d 989). The purpose of requiring such notice is to afford the defendant time to prepare his defense and show cause why the act should not be invoked (State v. Bell, 205 Kan. 380, 469 P. 2d 448). No particular form of notice is necessary and such notice may be waived (Lieser v. State, 199 Kan. 503, 430 P. 2d 243).” (p. 605.)
In this case it appears that appellant received notice of the state’s decision to invoke the habitual criminal act thirty-four days prior to sentencing. Appellant had ample opportunity to present evidence in mitigation of the increased sentence, but he did not do so. The sentence imposed should not be disturbed.
The judgment is affirmed.
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The opinion of the court was delivered by
Foth, C.:
Frank Cobum was convicted by a jury of felony theft and has appealed. He raises what are essentially two issues, one relating to our speedy trial statute, the other going to the substance of the crime of theft as reflected in the instructions and proof.
Prior to his resignation in March, 1973, Coburn was the sheriff of Lyon county. When he left office he took with him two pistols which had come into his possession during his tenure as sheriff under circumstances to be discussed later.
On May 7, 1973, a grand jury indicted him for the theft of the two pistols in the following language:
“The Grand Jury charges that on or about March 1, 1973, in Lyofl County, Frank Cobum did, unlawfully and feloniously, with intent to deprive the owner permanently of. the possession, use or benefit thereof, obtain and exert unauthorized control over one (1) .38 cal. Colt Revolver, serial No. 553-202, and one (1) .25 cal. Wischo K G Automatic, serial no. 98-779, the same being lawfully in the custody of the Lyon County Sheriff’s office, in violation of K. S. A. 1972 Supp. 21-3701 (a).”
On May 29, 1973, he was arraigned on the charge and pleaded not guilty. Defendant was at all times free on bond. Trial was set for October 25, 1973. On the latter date the trial court considered its calendar and concluded that because of other cases pending for trial it did not have sufficient time to commence trial within 180 days of arraignment. It therefore ordered the case continued for 47 days, to December 11, 1973.
Defendant did not agree to the order of continuance and on November 30, 1973, moved for discharge on the grounds that the 180 day period prescribed by K. S. A. 22-3402 (2) had expired.
The motion was overruled, the case went to trial beginning December 11, 1973, the date set, and resulted in a verdict of guilty as charged. This appeal followed.
Appellant’s speedy trial argument is essentially this: subsection (2) of K. S. A. 22-3402 required his discharge unless he was brought to trial within 180 days of arraignment, “or a continuance shall be ordered by the court under subsection (3).”
Subsection (3) provides that the time for trial may be extended beyond the limitation otherwise applicable for any of several reasons, including:
“(d) Because of other cases pending for trial, the court does not have sufficient time to commence the trial of the case within the time fixed for trial by this section. Not more than one continuance of not more than thirty days may be ordered upon this ground.” (Emphasis added.)
Appellant points to the last sentence of (d) and says that, although only one continuance on this ground was ordered, because the continuance was for more than 30 days he was entitled to be discharged.
The state counters by pointing out that trial was begun on the 196th day after arraignment, well within 30 days from the statute’s normal 180 day limit. It contends that the underlying purpose of subparagraph (d) was to place a 210 day outer limit on continuances granted because of the condition of the court’s calendar, and that this purpose was more than fulfilled in the instant case.
We agree with the state. We have recognized that the statute represents a legislative effort to implement the speedy trial provisions of our constitutions. State v. Davis, 209 Kan. 225, 495 P. 2d 965. Rather than rely on the “balancing” tests employed in the absence of a statute (cf. State v. Otero, 210 Kan. 530, 502 P. 2d 763), the legislature has imposed strict standards which this court has not hesitated to enforce. E. g., State v. Cox, 215 Kan. 803, 528 P. 2d 1226; State v. Sanders, 209 Kan. 231, 495 P. 2d 1023. The statute, however, like any other statute, must be given a construction which is reasonable and which will carry out the legislative purpose without working an injustice to either the defendant or the state. (Cf. Willmeth v. Harris, 195 Kan. 322, 403 P. 2d 973.)
The basic question underlying this issue is the extent to which the statute was intended to govern the trial court’s control of its docket. It seems apparent that within the outer limits prescribed no control was intended; by its terms, the statute has no applicability to trial settings or continuances granted within (in case of a defendant on bond) 180 days of arraignment. Until that date is reached the defendant has no speedy trial issue to raise under either our statute, or under the state or federal constitutions. Unless a continuance infringes upon the legislative limit it may be ordered as required by the exigencies of the trial court’s docket; no limitation is applicable until the statutory limit is reached regardless of the reason assigned for the continuance. Thus, for example, if a trial court on the 30th day orders a 60 day continuance because of a crowded docket, the defendant has no cause to complain that the time exceeded 30 days.
Once the limit approaches, however, the trial court is faced with different problems. If the nearest practicable trial date is over the limit, the trial court is faced with two choices. It may fix a trial date within the statutory time limit, knowing the case cannot be then tried. Such an order, as pointed out above, regardless of the length of the continuance, does not call the statute into play. Rut when the date fixed arrives another continuance must be ordered, as the court well knew all along; so long as the second continuance does not exceed thirty days even the literal terms of the statute are not breached. In the alternative a trial court can do as the trial court did here and fix a realistic trial date more than 30 days from the date of the order, but within thirty days of the statutory limit. Either way the ultimate trial date is the same, and is known to the trial court at the time of the original trial date.
In this case, then, under the first alternative the court on October 25, 1973, could have ordered a thirty-one day continuance to November 25, 1973, the 180th day; the defendant would have had no cause to complain that the continuance was for more than 30 days. It could then have ordered an additional 16 day continuance to December 11, 1973, the actual trial date, and been within the literal terms of the statute. Again the defendant would have had no cause to complain. Instead, the trial court followed the second alternative and made but one order, on October 25, fixing the December 11th date at the outset. It thereby did directly what it clearly could have done indirectly. To say that the direct approach deprived the defendant of his right to a speedy trial, while the indirect approach would not, seems a prime example of exalting form over substance. Under such reasoning a 30 day continuance on the 180th day is proper, but a 31 day continuance on the 179th is not, although the result is obviously the same. We cannot accept such a construction of the statute.
As we see it the statute was designed to accommodate the conflicting demands of speedy justice and crowded court calendars. A specific time limit to begin the trial is fixed, but one continuance caused by calendar congestion is permitted, of up to 30 days beyond the limit. We therefore construe the phrase “not more than thirty days” in K. S. A. 22-3402 (3) (d) to mean “to a date not more than thirty days after the limit otherwise applicable.”
In this case the continuance was to a date 16 days after the applicable 180 day limit. The trial was therefore timely under the statute as we construe it, and the defendant was not entitled to be discharged.
Appellant’s substantive issues deal with “ownership” as an element of theft. He asserts that the instructions did not require the state to prove who the “owner” of each pistol was, and that the evidence did not show that his control over the pistols was not authorized by the respective owners. The issues were raised below by objections to the instructions and by a motion for directed verdict.
The key to appellant’s argument lies in the manner in which the pistols came into his possession. The .38 Colt was found in a car occupied by two suspects arrested by appellant when he was sheriff. At that time both disclaimed ownership. Later they were released, and were told they would not be charged with unlawful possession of the pistol although, as felons, they were subject to such a charge if possession could be proved. At the time of their release they again disclaimed any interest in the gun — or at least any interest in taking it into their possession, thereby subjecting themselves to immediate rearrest. The appellant testified that one of the suspects said the gun was his, but that the appellant “could have” it and could take the gun and sell it. Thereafter appellant used the gun for target practice (as did the undersheriff) and in his official duties as sheriff until he resigned. He took it with him when he left office.
The .25 automatic had been used by a young man to commit suicide in 1970. It, along with other property, was picked up by the appellant in the course of his official investigation of the shooting. When the investigation was complete appellant attempted to return all the property to the boy’s parents, but was told by the father that he “had no use for” the gun and that he “did not want” the gun. There was testimony that appellant thereafter carried this gun when on duty, and he testified that he kept it at home.
K. S. A. 21-3701 defines the offense of which appellant was convicted:
“Theft is any of the following acts done with intent to deprive the owner permanently of the possession, use or benefit of his property:
“(a) Obtaining or exerting unauthorized control over property; . . .”
The general definition section of our criminal code, K. S. A. 21-3110, provides:
“(13) ‘Owner’ means a person who has any interest in property.”
It was appellant’s theory that he came into possession of both guns from “owners” who did not want them, and that his exercise of control over them (even after he ceased being sheriff) was therefore not “unauthorized.” The state’s theory, on the other hand, was that the county (through the sheriff’s office) had a superior possessory interest in the guns which made it their “owner.” Hence the charge in the indictment that the guns were “lawfully in the custody of the Lyon County Sheriff’s office” when the unauthorized control was alleged to have been exerted.
In accordance with his theory appellant objected to the court’s theft instructions because they did not require the state to prove who the individual “owners” of the guns were, or that he acted without the authority of those individuals. The instructions given were in the following form:
“The defendant is charged with the crime of theft of a .38 cal. Colt Revolver and a 25 cal. Wischo K G Automatic. The defendant pleads not guilty.
“To establish this charge each of the following claims must be proved:
“1. That someone other than defendant was the owner of the property;
“2. That the property was in the lawful custody of the Lyon County Sheriff Department, which had a greater right to possession than the defendant.
“3. That the defendant obtained and exerted unauthorized control over the property;
“4. That the defendant intended to deprive the owner or owners permanently of the use and benefit of the property; and
“5. That this act occurred on or about the 1st day of March, 1973, in Lyon County, Kansas.”
Separate but similar instructions were given as to each pistol individually, thus permitting the jury to find the defendant guilty as to either or both, as well as not guilty.
We think the instruction given properly reflected the appropriate elements of theft. The essential elements applicable here are: (a) the requisite intent; (b) the exertion of control; and (c) the lack of authority from the owner. There is no issue here about (a) or (b) either in the instructions or the proof. The only question is whether the county’s possession was sufficient to make it the owner, in which case the defendant’s control was clearly unauthorized, or whether the individuals having legal title were the owners, in which case defendant could argue that he did have authority from the owners.
Our present statute consolidates a number of former crimes dealing with obtaining property by dishonest means, including larceny and embezzlement. (See the Judicial Council note appended to the statute.) Historically larceny was an offense against another’s superior possessory interest in personal property. Although in a larceny prosecution it was necessary to specify in the charge who the “owner” was, the owner named need not have legal title so long as he had the requisite superior right of possession.
Thus in State v. Pigg, 80 Kan. 481, 103 Pac. 121, it was held that one may be guilty of stealing from a thief, and the first thief was properly named as the “owner” of the property in the charge. In State v. Bartholomew, 116 Kan. 590, 227 Pac. 366, a servant of the legal owner in temporary possession of an automobile was held to be its “owner” for the purpose of charging a larceny. In State v. Urban, 117 Kan. 130, 230 Pac. 77, a farm tenant was held to be an “owner” of harness that came with the farm, and an information charging larceny from him was sufficient. And in State v. Hubbard, 126 Kan. 129, 266 Pac. 939, it was held that a pledgee was an “owner” so that a taking from his possession without permission was larceny, even when committed by the holder of legal title to the property taken. Each case illustrates that it is the superior right of possession of the victim that makes him an “owner,” and not the legal title.
The same rule is currently followed in Illinois, from whose code we adopted our present statute with only minor modifications. The general rule is put this way:
“Theft is the taking of property without the owner’s consent. Ownership of some form of possessory interest in someone other than the defendant is an essential element of the offense and must be alleged and proved. [Citation omitted.] . . . One of the purposes of the requirement is to adequately inform the defendant of the charges against him and to protect him from possible double jeopardy. [Citation omitted.]” (People v. Sims, 29 Ill. App. 3d 815, 817, 331 N. E. 2d 178.)
See, also, People v. McAllister, 31 Ill. App. 3d 825, 334 N. E. 2d 885, and cases cited therein.
That “ownership” under a statute like ours does not mean legal title is illustrated by People v. Traylor, 26 Ill. App. 3d 687, 325 N. E. 2d 383:
“Theft conviction requires proof of ownership or ‘some sort of superior possessory interest’ in one other than accused, and this element may be proved by circumstantial evidence.”
“Evidence that complainant owned television set and loaned it to brother-in-law who had set inside car at time prior to its theft, and theft accused offered no contrary evidence, nor did he contend at bench trial that his claim to possession was superior to that of complaining witness, was sufficient to support conclusion that accused had no possessory interest superior to that of complaining witness, so that requisite proof of ownership or superior possessory interest in object allegedly stolen, as element of theft conviction, would be established.” (Official Abstract of Decision, para. 3 and 4. Emphasis added.)
In this case the instruction given required the jury to find that the pistols were not the property of the defendant, and that the Lyon County Sheriff Department “had a greater right to possession than the defendant.” We think this was a sufficient definition of “ownership” in the county, comporting with our statutory definition of an owner as one who has “any interest in property.”
Of course, whether the sheriff’s department had a superior possessory interest depends on the interpretation given to the conduct of the holders of the legal title to the two guns. The defense theory seems to have been that when they relinquished their possessory rights to him they dealt with him as a private individual, rather than in his official capacity as sheriff. If he was acting in an official capacity, then the guns came into possession of the public entity he represented. K. S. A. 22-2512 provides that property validly seized by any peace officer, with or without a warrant, shall be kept by him until it is no longer required as evidence. Then, under subsection (3), if it is unclaimed it is to be sold by the sheriff at public sale and the proceeds paid into the county general fund. Under subsection (5), firearms which have been used in the commission of a crime are to be returned to the owner, destroyed, or sold, in the discretion of the court. In neither event do the seized articles become the personal property of the seizing officer.
Compare K. S. A. 13-14a02 and 14-10a02, dealing with the disposition of unclaimed property in the hands of certain police departments. And cf., Noble v. City of Palo Alto, 89 Cal. App. 47, 264 Pac. 529, holding that even in the absence of a statute or ordinance police officers have a duty to preserve property they find abandoned and to remit to the public treasury the proceeds from the sale of such property; Majewski v. Farley, 203 App. Div. 77, 196 N. Y. S. 508, imposing the same duty under a city charter, even as to property found in the city streets by a policeman who was off duty and not in uniform.
In this case whether the two felons and the father of the suicide victim meant to make personal gifts to the sheriff was resolved by the jury’s verdict. Although the jury was not specifically instructed as to the sheriff’s duties under K. S. A. 22-2512, the finding of guilt necessarily found a superior possessory interest in the governmental agency the sheriff represented. That finding is adequately supported by the evidence.
The judgment is affirmed.
APPROVED BY THE COURT.
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The opinion of the court was delivered by
Miller, J.:
The Board of County Commissioners of Wyandotte County denied a petition for the incorporation of the City of Piper, Kansas on April 1, 1974. The district court affirmed, and petitioners appeal.
This is a sequel to City of Kansas City v. Board of County Commissioners, 213 Kan. 777, 518 P. 2d 403. There the Board of County Commissioners had unanimously granted a petition to incorporate Piper City. The City of Kansas City appealed, challenging the lawfulness of the incorporation. The district court approved the legality of the proceedings, but we reversed, holding the order of incorporation invalid for the reason that the required statutory notice had not been given.
Shortly following our decision a second petition for the incorporation of Piper City was circulated and filed with the county clerk on January 29, 1974. This petition was signed by over 90% of the residents of the 15-square-mile area involved. It was accompanied by supporting affidavits, certificates, and an enumeration. Appropriate notice was given, and a hearing was held before the Board on March 4, 1974. We note that there was a complete change of membership on the Board between the hearings on the earlier and the 1974 petitions.
Petitioners appeared with counsel and presented numerous witnesses and exhibits in support of the petition. Apparently the evidence was similar to that presented in 1971, but it was updated and reflected developments since the earlier hearing. No opposition was voiced. At the conclusion of the hearing the matter was adjourned until April 1, 1974 for the ostensible reason that this court had not then ruled upon a pending motion for rehearing in City of Kansas City v. Board of County Commissioners, supra. Our ruling, denying the motion, was made on March 6, 1974.
The hearing reconvened on April 1, 1974. Further evidence was offered in support of the petition, and two witnesses, residents of Kansas City, Kansas, appeared pro se and voiced opposition to the incorporation. Full opportunity was given to all present to be heai'd. At the conclusion of the hearing, the Board took a short recess and reconvened to announce its unanimous decision denying incorporation. The Board’s order in pertinent part reads:
“The Board has reviewed the petition for incorporation, the evidence adduced at the March 4, 1974 hearing, the statements of residents of the area made at the March 4, 1974 meeting, and the statements and arguments of Louis A. Silks, attorney for the petitioning incorporators. The Board has also considered the evidence offered April 1, 1974. From such review the Board has determined that the petition for incorporation should be denied; that generally the tax base for the proposed area is not sufficient with the levy limitations imposed by law to produce sufficient revenues to render the services which a third class city should be expected to have when incorporation is granted; by reason thereof, the proposed incorporation would be contrary to the public interest.
“The Board has carefully considered all of the factors enumerated in K. S. A. 15-121 and makes these findings:
“1. The population and population density of the area within the boundaries of the territory proposed to be incorporated is not of sufficient size to justify incorporation.
“2. The Board has considered but has determined that there are no adverse reasons affecting the land area, the topography and the natural boundaries and drainage basin, but feels that these factors are not important.
“3. The area of platted land relative to the unplatted land, and the assessed value of the platted land relative to the assessed value of the unplatted areas, does not justify incorporation.
“4. There has been no extensive business, commercial and industrial development in the area within the past five years.
“5. There has been no substantial expansion in terms of population and construction within the last five years.
“6. There is little likelihood of sufficient growth in the area and in adjacent areas during the next ten years.
“7. The present cost of services from taxes levied by Prairie Township have provided substantial adequate governmental services in the area in the past.
“8. It would be adverse on adjacent areas and on local governmental structure of the entire urban community to grant incorporation.
“9. The territory is within five miles of the existing cities of Kansas City, Kansas and Bonner Springs, Kansas. The size and population of such cities and their growth in population, business and industry during the past ten years has been substantial.
“10. Said cities of Kansas City, Kansas and Bonner Springs, Kansas have extensively increased their respective boundaries by annexation during the past ten years and by reason thereof, the probability of growth of tire Piper City area would be impaired.
“11. It is likely that the cities of Kansas City, Kansas and Bonner Springs, Kansas are willing to annex the territory and each city has the ability to provide city services in case of annexation.
“12. The general effect upon the entire community should there be additional cities in Wyandotte County, Kansas would be adverse; to grant incorporation of Piper City would interfere with the overall orderly and economic development of the area and would present an unreasonable multiplicity of independent municipal governments.
“By reason of the foregoing findings it is the unanimous decision of the Board, and It is so ordered, that the petition for the incorporation of the area above described as a City of the third class, to be known as Piper City, Kansas, should be and the same is hereby denied.”
The written decision of the Board was prepared prior to the April 1, 1974 hearing. The sentence “The Board has also considered the evidence offered April 1, 1974” was inserted in the document immediately prior to its adoption. Thereafter, petitioners gave timely notice of appeal to the district court pursuant to K. S. A. 19-223.
Also on April 1,1974 the Board, without prior notice, unanimously passed a resolution adopting the County Road Unit System, pursuant to K. S. A. 68-515b. While not important in the matter at hand, it is of some moment to petitioners who reside in that portion of Prairie Township which constitutes, for all practical purposes, the only portion of Wyandotte County not presently within an incorporated city. So far as we are informed, no petition protesting the adoption of the resolution was filed.
The appeal came on for hearing before the district court on August 14, 1974. Mr. Burke Bettis testified on behalf of the petitioners and Commissioner Davis, Commissioner Hart, and Murray Rhodes, County Director of Planning, testified for respondents. The proceedings were continued to and concluded on August 28, 1974. The court took the matter under advisement, counsel submitted briefs, and on September 12, 1974 the court wrote to counsel a lengthy letter in which he detailed his findings and the reasons therefor, and concluded that judgment should be entered in favor of the Board. A journal entry followed. Petitioners then appealed to this court.
The trial court’s carefully prepared letter-memorandum is enlightening. Since it treats at length the issues raised on this appeal, we quote from it as follows:
“In this appeal, the parties concede that under K. S. A. 15-126, this court may reverse the ruling of the Board denying reincorporation only ‘if the court is of the opinion that the decision of the board was arbitrary, unlawful, or capricious’. A corollary to this rule is that this court may not substitute its judgment for that of the Board, and that the burden of proof is upon the appellant to prove that the Board’s decision was arbitrary, unlawful, or capricious.
“At the outset, a question concerning the admissibility of evidence upon which the Board’s decision depends must be decided. In accordance with the statutes, the Board of County Commissioners held a meeting on April 1, 1974, at which the evidence of the petitioners was presented and all those present permitted to voice their sentiments. An adjourned meeting was held on March 4, 1974. A stenographic record of both proceedings was made. By stipulation of counsel, all of this evidence as shown by the transcript, including the exhibits, was introduced at the hearing before this court.
“The County Counselor then offered the testimony of two of the County Commissioners to explain what other information the Board had considered and the basis for its findings, and also offered the testimony of the County Planning Director to explain exhibits numbered 24 and 26 prepared by him for the Board.
“Petitioner’s counsel objected to this additional evidence on the grounds that counsel had stipulated prior to trial that only the evidence before the Board as shown by the transcript of the two [hearings] was to be introduced. Re spondent’s counsel, however, admits only that he stipulated to all the evidence as shown by the transcript but denies that the stipulation went farther than that. It is his contention that since the Board considered other evidence in its possession, it should be permitted to show [what] such evidence was in order to show that its decision was not arbitrary or capricious. Whatever the stipulation, petitioners offered no additional evidence at the hearing before this court on August 14, 1974 or at the continued hearing on August 23, 1974.
“It is the further contention of petitioner’s counsel that under the statutes (K. S. A. 15-116, et seq.) the Board is required to make its decision solely on the basis of the evidence presented at the statutory hearing before it, and that this court in determining whether the Board’s action was arbitrary and capricious must do so on the basis of the record of such hearing.
“The hearing before the Board is designed to give the inhabitants of the area and those most likely to be affected thereby an opportunity to present their views to the Board, and the Board is directed to conduct it in such manner as to it seems ‘best suited to the occasion’. In my opinion, the statute does not contemplate that this hearing shall be an adversary hearing in the sense of civil trial. There were no pleadings to define the issues. The Board is given certain guide lines and factors to consider, but these factors are not exclusive. (K. S. A. 15-121). Most of the evidence presented to the Board was hearsay in the form of statistics, reports, letters and opinions. There were no objections to the evidence or cross examination.' As a practicál matter, the Board had no way of knowing what the evidence would be and what issues would develop until after the hearing was held.
“It is only after the hearing is adjourned sine die that the Board is directed to consider the matter. It is then authorized to request the director of the State Department of Economic Development to make a study not only of the evidence presented at the hearing but also of the general area in which the territory is located, information in possession of the Board and other sources and render an opinion as to the advisability of the proposed incorporation. This is also permissive and not mandatory. All of this suggests that the Board is not limited to consideration only of the evidence presented at the hearing. And if it is permissible to ask the director of a State agency to make a study of such other information, no reason suggests itself why the Board may not ask its own expert, the County Planning Director, to provide such information, and to consider this and such other information in its possession.
“The other evidence alluded to and considered by the Board included public records and information concerning such matters as the comparative budgets of the Townships and other cities in the County, costs of road maintenance, fire protection, levy limitations, sewage problems in the area, and their knowledge and experience as members of the Board and of individual members as a former township official and as a State Legislator.
“The Board also considered the information available to the Chairman of the Board as a member of M. A. R. C., an area planning council, that the proposed 1-435 highway had been tentatively postponed for as much as 15 years, which information had also been publicized in the news reports and was a matter of common knowledge. They also conducted a personal survey of the roads in Piper which they considered.
“In my opinion, the statute does not contemplate that the Board may con sider only the evidence presented at the hearing and exclude all other information and evidence. To hold otherwise would mean that if no opposition appeared at the meeting and presented counter evidence, as was the case here, the Board would have no alternative but to approve the petition regardless of the situation. This would amount to no more than a plebiscite of those present at the meeting.
“It was also contended that the fact that the former Board approved the incorporation of Piper City is evidence that the present Board acted arbitrarily and capriciously in denying reincorporation since the same evidence was presented at both hearings. The fact is, however, that while petitioners presented the same evidence both times, with some statistics up dated the second time, the present Board had ievidence and information before it that was not available to the former Board.
“For example, it had a study and exhibits prepared for it by its County Planning Director. It had up dated statistics on budget items and costs. It had knowledge of the operations of Piper City and developments in the area during the intervening two year period and knowledge of the condition of the roads obtained from personal inspection together with the knowledge that construction of 1-435 was no longer imminent. In addition, Piper was no longer threatened with imminent annexation as before.
“Among the findings given by the Board upon which it based its order denying reincorporation are these: The area sought to be incorporated covers 15 square miles or 9600 acres which would make it the second largest city in the County. It has a population of approximately 810 persons and contains approximately 255 households. There are 14 subdivisions with 428 lote of which only 80 are occupied. The unincorporated town of Piper is located on less than 80 acres in the southeast part of the area. The only other development of any consequence is a sub-division called Dub’s Dread located in about the middle of the area. Outside of these two areas, the population is sparse. There are several square mile sections that contain as few as 5 or 6 houses. More than 90% of the area is devoted to woodlands and agricultural uses. There is a private sewage facility in Dub’s Dread, otherwise the area has no sewers and none were presently planned. The existing water facilities from Rural Water Districts # 2 and # 4 are limited and would have to be expanded to support any sort of expansion, and the Board of Public Utilities has announced as a matter of policy that it will not serve any more incorporated cities. The area would have 33.5 miles of roads to maintain. The budget for 1973 was $26,239.80 and for 1974 was $29,570.60 which was not sufficient, in its opinion, to provide the necessary services. The roads in the area were in poor condition. The Board has adopted the County unit road system and is prepared to up grade and maintain the roads in the area. The present zoning regulations of the County will insure orderly and planned development in the area. There has been no significant development or growth in the area within the past five years.
“In general, the Board felt that the situation had changed, since 1971, that Piper City could not provide the necessary services of a third class city in such a large area with the existing tax base and budget, that with the threat of annexation removed, the petition to incorporate was premature. It did not rule out future petitions to incorporate.
“The law is settled in this state that the creation of municipalities involves essentially the exercise of legislative and not judicial power, and the power to make such determination is conferred upon the Board of County Commissioners, [citing Town of Olsburg v. Pottawatomie County, 113 Kan. 501, 215 Pac. 451; and Ruland v. City of Augusta, 120 Kan. 42, 242 Pac. 456.]
“The petitioners disputed some of the findings of the Board and presented opinions and statistics of their own to prove otherwise. Obviously, some of the issues are arguable. But under the evidence in this case, I cannot hold that in reaching its decision, the Board acted arbitrarily and capriciously. Judgment will therefore be entered in favor of the respondent Board. . . .”
The principal claim of error is that the Board, in arriving at its decision, went outside of the record and considered matters not in evidence. The question is whether a Board of County Commissioners, in acting upon a petition to incorporate under K. S. A. 15-115, et seq., must confine its consideration to the evidence ofiered at the public hearing.
When weighing the pros and cons and determining the advisability of incorporation, the board is performing a legislative function. Lampe v. City of Leawood, 170 Kan. 251, 253, 225 P. 2d 73; Town of Olsburg v. Pottawatomie County, 113 Kan. 501, 215 Pac. 451. K. S. A. 15-123 specifically provides that after a public hearing has been adjourned, the board (ostensibly to assist it in arriving at a decision) “may request the director of the division of planning of the state department of economic development to make a study of the general area in which the territory is located, information in possession of the county board and other sources, and render an opinion as to the advisability of the proposed incorporation.” A board has readily available to it from county officers tax and valuation data, plats, road and highway information. It has first-hand knowledge of the area. Members of such boards are no strangers to local finance, budget, road, waste disposal, water, sewage and like problems. We see no reason why the board cannot consider all such matters, whether touched upon by the evidence or not.
A legislature may of course give consideration to matters not presented during hearings on proposed legislation. The board acts in a legislative capacity. The hearings are not in the true sense adversary. Here there was but one side presented. Certainly a board is not compelled to grant incorporation where the petitioners make a prima facie showing, no one appears in opposition, and no evidence to the contrary is offered.
Where, as here, the territory lies within five miles of incorporated cities, a unanimous vote of the commissioners is required. Viewing the act as a whole, we think it is clear that the legislature did not intend the action of the board to be 'an empty formalism. The board is required to consider, among others, a large number of factors specified by the legislature. K. S. A. 15-121. These factors must be considered — whether or not there is evidence upon each. The board may employ consultants to provide information and assistance, and to gather information. K. S. A. 15-122. And as noted above, it may request a further study and opinion after the hearing has been concluded. K. S. A. 15-123.
In sustaining a decree of the Court of Quarter Sessions of Berks County denying incorporation, the Superior Court of Pennsylvania said:
“A proceeding to incorporate a borough ‘is not in the nature of private litigation’. . . . Such a proceeding largely involves issues of fact and questions of expediency for the Court of Quarter Sessions. ... ‘In the consideration of the questions of fact and expediency arising in such cases the judges of the quarter sessions, having personal knowledge of the territory sought to be incorporated and of the witnesses who testify as to the facts, are more likely to arrive at a correct conclusion . . . than the members of a tribunal sitting at a distance from the scene of controversy, who are without full information as to local conditions’. . . .” Petition for Incorporation of Borough of Blandon, 182 Pa. Super. 304, __, 126 A. 2d 506, 508 (1956).
We conclude that it was not error for the Board of County Commissioners to consider matters within the personal knowledge of the members, and other matters outside of the formal record in the incorporation proceeding.
Petitioners argue that the trial court erred in admitting testimony of two members of the Board in that such testimony was not in the record made before the Board; that the testimony violated the agreement of counsel limiting the evidence to the record; and that the admission of such testimony deprived petitioners of the opportunity for rebuttál, for proper cross-examination, or to offer further evidence. We have determined that it was proper for the Board to consider matters in addition to the evidence presented in open hearing. The issue before the district court was whether the decision of the Board was arbitrary, unlawful or capricious. We think the testimony of the members as to the additional information considered was highly relevant. The trial procedure in the district court is governed by our Code of Civil Procedure. The reasonableness of the Board’s decision should be determined upon the basis of the evidence before the court, and that evidence is not necessarily limited to the evidence before the Board, so long as it is relevant to the issue before the trial court. Keeney v. City of Overland Park, 203 Kan. 389, 395, 454 P. 2d 456; Rydd v. State Board of Health, 202 Kan. 721, 451 P. 2d 239; Bodine v. City of Overland Park, 198 Kan. 371, 424 P. 2d 513; Olathe Hospital Foundation, Inc. v. Extendicare, Inc., 217 Kan. 546, 539 P. 2d 1.
Counsel disagreed as to whether they stipulated that the matter would be submitted to the court on the record before the Board. The attorney for petitioners so contended. The county counselor contended that he stipulated only to the admission of that record into evidence before the court. The letter upon which claim of stipulation is based does not set forth a definite stipulation, and in fact stated that Mr. Rhodes would be called as a witness for the Board. Petitioners also offered the testimony of one witness, Mr. Bettis. This tends to negate petitioners’ claim that counsel stipulated that the matter would be submitted on the transcripts alone.
Counsel for the Board announced at the commencement of the August 14th hearing before the court that two commissioners would be called as witnesses. Petititioners objected, but did not request a continuance. The witnesses were fully cross-examined. The presentation was not completed on August 14, but was continued for two weeks and concluded on August 28, 1974. Petitioners did not offer rebuttal evidence. The commissioners testified generally as to the matters taken into consideration by them in ruling upon the petition including matters which were not shown of record at the hearings. This testimony was relevant and germane to the issue before the district court. No prejudice to petitioners is shown. Petitioners were not denied preparation time, cross-examination or an opportunity to offer rebuttal evidence. We conclude that the district court did not err in admitting this testimony.
Finally, petitioners claim that the order denying incorporation was not supported by the record and was unlawful and constituted an arbitrary and unreasonable decision. The standards for review of decisions of the Board by the district court is found in K. S. A. 15-126, which provides in pertinent part:
“. . . Upon appeal the district court shall have jurisdiction to affirm or, if the court is of the opinion that the decision of the board was arbitrary, unlawful, or capricious, to reverse the decision complained of or direct the county commissioners to take proper action.”
This court’s review powers of a district court decision are very much the same as the district court’s review of the Board. As this court noted in City of Kansas City v. Board of County Commissioners, supra:
. . In reviewing the proceedings of the county commissioners this court cannot concern itself with the advisability of the incorporaton. Our review must be restricted to judicial matters such as the construction of statutes and the application of the statutes to the facts of this case.” (p. 779.)
Similar caution was expressed more recently in State, ex rel., v. City of Overland Park, 215 Kan. 700, 527 P. 2d 1340, wherein it was said:
“In reviewing the action of a city in annexing territory the wisdom, desirability, expedience and advisability of its action is not within the judicial realm, and factors involving economic or political considerations are not matters for the courts to consider.” (Syl. 4.)
The findings of the Board are not findings of specific facts, but are for the most part conclusions drawn by the Board from the data before it. Petitioner would have us weigh and evaluate the evidence adduced on behalf of the petitioners and then draw contrary conclusions therefrom. This we cannot do.
The evidence, as we have noted, was supportive of the petition; but there were obvious omissions which, together with other available data, the Board was entitled to ponder.
Petitioners introduced charts showing that there were many cities in Kansas having smaller population and less assessed valuation. What was not offered was a comparison of the areas and road mileage of Kansas cities. During the hearing one of the Commissioners pointed out that the proposed city would be the second largest city in Wyandotte County, although it had but a fraction of the assessed valuation of Bonner Springs and Edwardsville; it would have more streets to maintain than Edwardsville; and Edwardsville was then having difficulty financing its street maintenance and was asking the county to assume the maintenance of some of its principal thoroughfares. The Commissioners also took into consideration county records relating to tax levies, and the findings and projections of Mid-America Regional Council, a planning facility. The Board personally inspected the roads in the proposed city, and estimated the cost of proper maintenance based upon present day costs of labor and material. These were all matters with which the Board was familiar, and matters which it might properly consider.
Its conclusions go to the ultimate question — the advisability of incorporation, a legislative judgment which we are not authorized to consider.
Upon the record before us we find no error. Accordingly, we affirm the judgment.
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The opinion of the court was delivered by
Schroeder, J.:
This is an appeal by Republican members of the Kansas Senate seeking to vacate the trial court’s order restraining them from barring members of the public the right to attend the August 21,1975, Republican Caucus.
The question sought to be resolved is whether the Kansas Open Meeting Law (K. S. A. 1975 Supp. 75-4317, et seq.) requires the Republican Caucus, called pursuant to K. S. A. 1975 Supp. 46-1601, (Repealed in part L. 1976, ch. 234) to be open to the public.
Stephen Burnett (plaintiff-appellee) is a newsman for a Topeka television station assigned to the statehouse as a reporter for news coverage. Ross O. Doyen, Norman E. Gaar, Joseph C. Harder, J. C. Tillotson and Robert W. Storey are Republican members and officers of the Kansas Senate.
Pursuant to K. S. A. 1975 Supp. 46-1601 (a), et seq., the defendants-appellants were to meet in the evening on August 21, 1975, to nominate one or more members of the Kansas Senate for election to the position of President of the Kansas Senate to fill the vacancy created by the appointment of the Honorable Richard Rogers, former President of the Kansas Senate, to a federal district court judgeship. K. S. A. 1975 Supp. 46-1601 (a) provided:
“When a vacancy occurs in the office of president of the senate or speaker of the house of representatives and the legislature is adjourned to a date more than thirty (30) days after the occurrence of the vacancy, the house of representatives or senate, as the case may be, shall meet within thirty (30) days and elect a member thereof to fill the vacancy. The vice president of the senate or the speaker pro tem, as the case may be, shall within ten (10) days of such occurrence issue a call for such meeting at a time not less than ten (10) days and not more than twenty (20) days after the date of the call. On the day preceding the date of the call the party caucuses of the house shall meet to choose their respective nominees.” (Emphasis added.)
Legislative members attending the caucus were to receive compensation, expense allowances and mileage as provided by K. S. A. 1975 Supp. 46-1601 (d).
Burnett desired to attend and film part of the Republican Caucus. Based on comments by two of the five defendants and Burnett’s inability to attend the 1974 Senate Republican Caucus during the preorganization meeting of the legislators, Burnett feared “irreparable injury” if he and other members of the public would be barred from the Republican Caucus. Joseph Harder, Majority Leader of the Kansas Senate, stated he intended to submit the question of whether the Republican Caucus meeting should be opened or closed to a vote at the caucus. Burnett claimed this violated his right to attend the meeting because the vote might result in the public being barred. Therefore, Burnett filed a petition for declaratory judgment on August 20, 1975, and a motion for temporary restraining order on August 21, 1975. He sought to have the Republican Caucus be declared subject to the Kansas Open Meeting Law (K. S. A. 1975 Supp. 75-4317, et seq.), a restraining order to insure access of the public to the meeting, and to further insure that ballots for the nomination were open and non-secret.
The public policy of the state with regard to open meetings is stated in K. S. A. 1975 Supp. 75-4317 as follows:
“(a) In recognition of the fact that a representative government is dependent upon an informed electorate, it is declared to be the policy of this state that meetings for the conduct of governmental affairs and the transaction of governmental business be open to the public.
“(b) It is declared hereby to be against the public policy of this state for any such meeting to be adjourned to another time or place in order to subvert the policy of open public meetings as pronounced in subsection (a).”
K. S. A. 1975 Supp. 75-4318 (a) provides the following legislative guidelines:
“Except as otherwise provided by law, all meetings for the conduct of the affairs of, and the transaction of business by, all legislative and administrative bodies and agencies of the state and political and taxing subdivisions thereof, including boards, commissions, authorities, councils, committees, subcommittees and other subordinate groups thereof, receiving or expending and supported in whole or in part by public funds shall be open to the public and no binding action by such bodies shall be by secret ballot.”
On the morning of August 21, 1975, the trial court, pressed for immediate action, first attempted to handle the motion for a temporary restraining order. The court stated three times it was not resolving the matter on the merits, but it heard evidence and said the Republican Caucus was a governmental affair within the Kansas Open Meeting Law which must be open to the public. The journal entry restrained the appellants from barring the public from the Republican Caucus and further restrained them from voting by secret ballot. A motion for an order staying the trial court’s order pending appeal was denied. A request that the trial court set bond was also denied.
On the afternoon of August 21, 1975, Justice Fromme of this court issued an order staying the judgment of the trial court.
The Republican party caucus was held on the evening of August 21, 1975. Affidavits submitted by the five defendants indicated Senators Tillotson, Storey and Harder supported opening the meeting to the public and opposed voting by a secret ballot. Senators Doyen and Gaar took the opposite view. Because the defendants were merely five of a 26-member caucus, they did not have absolute control and power in matters of procedure that came before the meeting. The caucus was opened to the public by vote of its members.
Stephen Burnett and other members of the press went to the Republican Caucus where they observed the meeting was open to the public, and the votes cast upon the nominations made were by open ballot.
Since August 21, 1975, the law pertaining to party caucuses has been amended. What was formerly K. S. A. 1975 Supp. 46-1601 now reads:
“Members of the legislature attending a meeting called to fill a vacancy as provided by rules of the senate or rules of the house of representatives, or attending a meeting of the senate called for whatever reason by the president or attending a meeting of the house of representatives called for whatever reason by the speaker shall receive compensation, expense allowances and mileage as provided by K. S. A. 1975 Supp. 75-3212 and any amendments thereto.” (L. 1976, ch. 234, §1.)
All other provisions of K. S. A. 1975 Supp. 46-1601 were repealed. (L. 1976, ch. 234, § 2.) Senate Rule 21 now provides the procedure for electing a new President of the Kansas Senate. References to party caucuses are totally omitted in the Senate Rules. (1976 Senate Journal, Senate Resolution No. 1845, p. 1000.)
Because K. S. A. 1975 Supp. 46-1601 has been significantly amended and the plaintiff was able to attend the Republican Caucus, this case is moot.
The legislature in 1976 effected a major change in K. S. A. 1975 Supp. 46-1601. References to party caucuses are totally omitted from L. 1976, ch. 234 and the new Senate Rules. Admittedly a case should not be declared moot every time the law is amended by the legislature, because some amendments have minimal impact upon the overall effect of the law. (Knowles v. State Board of Education, 219 Kan. 271, 279, 547 P. 2d 699.) However, the 1976 amendments involved herein have a significant impact upon the overall effect of the law.
Furthermore, the Republican Caucus was open to the public and the press. We have frequently said it is the duty of the courts to decide actual controversies by a judgment which can be carried into effect, and not to give opinions upon moot questions or abstract propositions, or to declare principles which cannot affect the matter in issue before the court. (Diehn v. Penner, 169 Kan. 63, 216 P. 2d 815; Bumm v. Colvin, 181 Kan. 630, 312 P. 2d 827; and Thompson v. Kansas City Power & Light Co., 208 Kan. 869, 494 P. 2d 1092, cert. denied, 409 U. S. 944, 34 L. Ed. 2d 215, 93 S. Ct. 270.) Here the plaintiff did not seek damages, but rather sought a declaratory judgment and a restraining order. Since this court could grant no further or additional relief under the facts and circumstances involved, the matter is moot. Should a question relating to the Kansas Open Meeting Law arise in another context, there is nothing to prevent the court from giving it consideration.
Although the case is moot, one other matter remains. The plaintiff sought a temporary restraining order. (K. S. A. 60-902.) While the trial court stated many times it was not resolving the matter on the merits, its effort to label the order a “temporary restraining order” is erroneous. In effect, the trial court issued a temporary injunction. The restraint which an order purports to impose, and not the name given to it, determines its true nature and character. (Hayward v. State Corporation Comm., 151 Kan. 1008, 1013, 1014, 101 P. 2d 1041, and authorities cited therein; and 42 Am. Jur. 2d, Injunctions, § 14.)
The distinction between a temporary injunction and a restraining order is important. In 43 C. J. S., Injunctions, § 8, it is stated:
“A restraining order is an order granted to maintain the subject of controversy in status quo until the hearing of an application for a temporary injunction. Its purpose is merely to suspend proceedings until there may be an opportunity to inquire whether any injunction should be granted, and it is not intended to operate as an injunction pendente lite, and should not in effect determine the issues involved before the parties can have their day in court or give an advantage to either party by proceedings in the acquisition or alteration of the property the right to which is disputed while the hands of the other party are tied.” (p. 415.)
(See also Ostler v. Nickel, 196 Kan. 477, 479, 413 P. 2d 303; and Major v. Sowers, 297 F. Supp. 664 [E. D. La. 1969].) Here the trial court’s order erroneously altered the status quo without giving the appellants sufficient notice to be prepared or fully heard, without a full hearing, and without a clear showing of entitlement to relief. As such the order is void.
Some have construed the trial court’s order as a final decision on the merits. (See, Attorney General Opinion No. 75-362.) While this was certainly not intended by the trial court, that interpretation is a natural consequence of the trial court’s erroneous use of a temporary restraining order. To clear the record we vacate the erroneous order of the trial court.
The order of the lower court is vacated, and the appeal is dismissed as moot.
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The opinion of the court was delivered by
Miller, J.:
Lewis E. Guebara appeals from his conviction by a jury of felony murder in violation of K. S. A. 21-3401 and unlawful possession of a firearm in violation of K. S. A. 21-4204 (1) (b). He was sentenced to concurrent terms of imprisonment for life, and for not less than one nor more than five years.
The principal issue before us is whether the felony murder statute, K. S. A. 21-3401, and the trial court’s jury instruction which followed it, deprived the defendant of his defense of self-defense because no independent finding of malice was required.
Lewis E. Guebara served a sentence for voluntary manslaughter in the Kansas State Penitentiary, from which he was released on parole in February, 1973. He took up residence in Wichita. During the forenoon of April 21, 1973, he visited the home of a friend, Luis DeLuna, and without DeLuna’s knowledge, took DeLuna’s .22 caliber revolver with him when he left the home. He tucked the gun in the waistband of his trousers, under his shirt, and had it with him during the events which followed. Defendant spent the day and evening drinking beer, either at the home of DeLuna’s sister, or at a nearby tavern.
About one o’clock on the morning of April 22, 1973, defendant, Luis DeLuna, and Jimmy DeLuna drove in Jimmy’s car to The Waterhole Club. They parked next to an automobile owned by Homer Hernandez (the deceased). They entered the club and remained on the premises until the club closed at three o’clock that morning. Homer and Clara Hernandez were also early morning patrons of the club, as was Clara’s brother, Arthur. Arthur was intoxicated and lost consciousness by closing time.
Jimmy and Luis DeLuna, perhaps with the assistance of the defendant, carried the inert Arthur from the club and attempted to put him in a convertible which was parked near the entrance. Clara and Homer attempted to pass by this group on the way to Homer’s car. The defendant accused Homer of trying to take the gun which the defendant had tucked in the waistband of his trousers, and angry words were exchanged. Homer and Clara then proceeded toward Homer’s car and the defendant and the DeLunas proceeded toward the DeLuna car. The argument between the defendant and Homer continued. The weapon was removed from its place of concealment below the defendant’s shirt, and Homer was fatally shot. The bullet entered on the left side of Homer’s breast bone, went through his heart and lung, and lodged in his back. He was pronounced dead upon his arrival at the hospital. Expert testimony revealed that although only one shot was fired, one of the bullets remaining in the weapon had been struck by the firing pin, but had failed to fire. Homer had no nitrites on his clothing, and the expert was therefore of the opinion that Homer was at least 3K feet away from the firearm when it discharged. Homer is described as being about five feet, five inches tall, and weighing about one hundred thirty-five pounds.
The record discloses little evidence as to how the shooting occurred, except the testimony of Clara Hernandez, and it discloses no evidence upon which a claim of self-defense could be based. For this reason we secured and have reviewed the trial transcript.
Clara testified that as she was leaving The Waterhole with Homer, they attempted to pass a group of people, and Homer put his hands on the defendant’s waist in order to make room for Clara to pass. The defendant immediately accused Homer of trying to take his gun away from him. Homer denied it. Homer and Clara pro ceeded to Homer’s car and the defendant followed, still arguing. Homer told the defendant, “If you want to fight, you don’t need no gun.” Clara was to the side and about midway between the two men, who were about ten feet apart. The defendant suddenly pulled his gun and shot Homer.
Jimmy DeLuna was on the driver’s side of his car; defendant, Clara and Homer were on the other side. Homer and the defendant were arguing; Jimmy told them to forget it. While Jimmy’s back was turned, he heard a shot. He then saw Homer falling, and defendant backing away with a pistol in his hand. During this time Luis DeLuna was at the back of the car. He was nauseated and was not paying attention to the conversation. Homer and the defendant were arguing but they were not fighting. While Luis had his head down, he heard a shot. He looked up and saw defendant, gun in hand, backing away from Homer, who was going down. Joe Varela was about fifty feet away, entering his car, when he heard a shot. He saw Homer fall, and he saw the DeLuna car, in which defendant was riding, leave. Before Homer died, he told Joe that the defendant shot him.
The defendant testified that while he was helping to put Arthur into the convertible, Homer tried to take his gun away from him. They argued, and Homer struck the defendant on the back of the head with his fist. Jimmy DeLuna stopped them and the defendant and Jimmy then walked over to Jimmy’s car. Homer and Clara followed them, and Homer again tried to take the gun away from the defendant. Each of them had a hand on the gun. Homer jerked the gun out and tried to take defendant’s hand away from it. At that time the gun went off. The defendant testified that he did not intend to shoot Homer.
Defendant points out that K. S. A. 21-3401 and the felony murder instruction which the court gave do not require the jury to make a specific finding of malice if the jury finds that the killing occurred during the commission of another felony, unlawfully possessing a firearm within five years after a previous felony conviction. Defendant admitted possession of the gun and a prior felony conviction, and raised no defense to them. He contends that his defense was self-defense, which necessarily excludes malice since self-defense implies self-preservation rather than ill will. Because the jury was not required to make a specific finding of malice, the defendant reasons that he was prevented from effectively asserting self-defense.
We agree that malice is an essential element of murder in the first degree, including felony murder. In a prosecution for felony murder, however, the state may show malice, premeditation, and deliberation by showing that the killing took place during the commission of another felony. State v. Goodseal, 220 Kan. 487, 553 P. 2d 279; State v. Bradford, 219 Kan. 336, 548 P. 2d 812; State v. Clark, 204 Kan. 38, 460 P. 2d 586. The other felony must be one inherently or foreseeably dangerous to human life. The unlawful, willful or knowing possession of a revolver by a recently convicted or released felon, with the intent to control the use and management of the weapon, is such a felony. State v. Goodseal, supra; State v. Moffitt, 199 Kan. 514, 431 P. 2d 879. And, see, State v. Neal, 215 Kan. 737, 529 P. 2d 114. We concluded in Goodseal that malice is established by proof of the same collateral felony as is here involved. We adhere to that ruling.
We disagree, however, with defendant’s contention that the failure to require a specific finding of malice effectively deprived him of the defense of self-defense, for two reasons. First, we turn to the evidence before us. Homer Hernandez was unarmed. He did not threaten to inflict injury upon the defendant. Defendant’s own testimony was that the gun fired accidentally as they scuffled for possession of it — not that he shot Homer in order to protect himself from threatened injury. The other witnesses all testified to an exchange of words, an argument, but none reported hearing any threats, nor did the defendant. There is no evidence that the deceased had committed prior acts of violence, that the defendant knew of such acts, or that the defendant believed or had reasonable grounds for believing himself to be in danger of death or great bodily harm at the hands of Homer. There is no evidence as to the relative size or strength of the deceased and the defendant. Defendant does not contend or admit that he shot Homer in self-defense or otherwise; he contends that the weapon accidentally discharged during a struggle for its possession, and while both he and Homer had their hands upon it. We conclude that, viewing the evidence in the light most favorable to the defendant, there is no evidentiary basis for a claim of self-defense.
Second, the trial court instructed on both self-defense and accident, and no objections were made to nor were changes requested in either instruction. Both defenses were thus presented to the jury by the court. The jury was left to weigh the evidence under appro priate instructions. It could have found that the defendant acted in self-defense, or that the shooting was accidental. By its verdict the jury rejected both defenses.
We conclude that the defendant was not deprived of the defenses available to him under the evidence; that the jury was properly instructed; and that the defendant was afforded a fair trial.
The judgment is affirmed.
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Kaul, J.
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The opinion of the court was delivered by
Fromme, J.;
This appeal is from a judgment of a district court construing certain provisions of the “Kansas automobile injury reparations act”, commonly referred to as the no-fault insurance law. (K. S. A. 1975 Supp. 40-3101, et seq.) The judgment was based upon the trial court’s interpretation of certain provisions of the act which would indicate what company holds primary coverage and has the obligation to pay survivors’ benefits on the death of an occupant in an accident vehicle. In addition the judgment concerns those provisions of the act relating to the rights and liabilities to reimbursement and indemnity of insurance companies 'for payments made by them to survivors of a deceased occupant of an accident vehicle.
The facts necessary for a determination of the present controversy were stipulated by the parties and the case was submitted to the trial court for determination without a jury. The accident vehicle was owned and driven by Kurt R. Zimmerman. Zimmerman was insured by American Standard Insurance Company of Wisconsin. Danny Ray Tiller, a passenger in the accident vehicle, died on the way to the hospital as a result of his injuries. Tiller was the owner of another vehicle, not involved in the accident, and was insured by Farm & City Insurance Company.
The accident and death occurred in April, 1974, in the state of Kansas. Zimmerman and Tiller were residents of the state of Kansas. It was stipulated for the purposes of the action that Tiller’s death was the direct and proximate result of the negligence of Zimmerman. The automobile policy issued to Zimmerman by American Standard and the automobile policy issued to Tiller by Farm & City contained identical coverage provisions for personal injury protection (PIP). The phrase, “Personal injury protection benefits”, means the disability benefits, funeral benefits, medical benefits, rehabilitation benefits, substitution benefits and survivors’ benefits required to be provided in motor vehicle liability insurance policies under the Kansas automobile injury reparations act. (K. S. A. 1975 Supp. 40-3103 [q].) The policies of both companies stated that any terms of the policy in conflict with the Kansas automobile injury reparations act were amended to conform to such law. We will comment further on the provisions of .the policies later.
Tiller was survived by his wife, Linda, and two small children, Paula and Patrick. The children were under the age of eighteen years. Farm & City paid $1,000.00 PIP funeral benefits and $2,-522.20 PIP survivors’ benefits to the wife on May 7, 1974 (thirty days after the death of Tiller). Farm & City then notified American Standard and Linda Tiller that it claimed rights of reimbursement and indemnification for PIP payments against any amounts Linda Tiller received from Zimmerman or American Standard.
Subsequently Farm & City paid additional survivors’ benefits to Linda Tiller of $5,134.40 making the total paid $8,656.60. The latter sum was the maximum required under the limits of the Tiller policy.
American Standard refused to honor Farm & City’s request, and on June 3, 1974, it settled Linda Tiller’s wrongful death claim for $14,800.00 in exchange for a covenant not to sue for the elements of damage set forth in K. S. A. 60-1904 (the Kansas wrongful death statute).
Farm & City then filed this action seeking to recover the amount of the Tiller PIP benefit payments from American Standard. Basically Farm & City’s claim is twofold. First, that American Standard had primary coverage for all the Tiller PIP benefit payments because Tiller was covered by the American Standard policy as a passenger in the accident vehicle. Second, that in any event Farm & City was entitled to reimbursement under the provisions of K. S. A. 1975 Supp. 40-3113 (b) because of American Standard’s refusal to include Farm & City as a joint payee in the $14,800.00 settlement check to Linda Tiller.
As a result of the construction placed on various provisions of the act the trial court held that sub-section 40-3113 (a) does not create rights of reimbursement in favor of an insuring company for PIP benefits accruing after the death of an insured, i. e., for sur vivors’ benefits. In other words it held that the reimbursement and indemnity provisions of the act are limited to PIP benefits payable to the injured person and accruing up to the date of his death. The court further held that under the policies and the act both companies provided identical PIP benefit coverage to Danny Ray Tiller while an occupant in the Zimmerman accident vehicle, and that under sub-section 40-3109 (b) Farm & City was entitled to recover from American Standard one-half, or $4,328.30, of the amounts it had paid.
Sub-section 40-3109 (b) provides for an equitable pro-rata sharing of liability if two or more insurers are liable to pay PIP benefits for the same injury to any one person. The trial court in effect required each company to bear the burden of one-half of the total PIP benefits payable under the act. The American Standard payment adjudged would be in addition to the $14,800.00 settlement it had paid on the Tiller tort claim.
Both insurance companies have appealed. American Standard, which insured Zimmerman and the accident vehicle, appeals from that portion of the judgment holding that American Standard provided PIP benefit coverage to the passenger Tiller. It denies any and all liability for the payments made by Farm & City to Tiller’s survivors.
Farm & City cross-appeals from that portion of the judgment holding that sub-section 40-3113 (a) of the act does not create rights of reimbursement for PIP benefits accruing after the death of an insured, i. e., survivors’ benefits. It claims a right to full reimbursement from American Standard for all PIP benefits paid to Tiller’s survivors.
Before considering the issues raised it will be helpful to review a few of the observations of this court with respect to this entire act as set forth in Manzanares v. Bell, 214 Kan. 589, 522 P. 2d 1291. In Manzanares the act withstood constitutional attack. At pp. 595 and 596 of that opinion it is stated:
“. . . The operation of a motor vehicle on a highway of this state or property open to public use is prohibited, unless the prescribed liability insurance coverage is in force. . . .
Section 7 (/) requires that every liability insurance policy shall contain personal injury protection benefits. The section’s phrase ‘include personal injury protection benefits’ merges traditional third party liability insurance with first party coverage. . . .
“Direct benefits are provided to the named insured, members of his family residing in his household, guest passengers, and others operating the insured motor vehicle with permission, and to pedestrians struck by the insured vehicle. . . .” (Emphasis supplied.)
So it appears in Manzanares this court recognized that the PIP insurance required by the act was “first party coverage” with direct benefit payments coming from a party’s own insurance company. It was pointed out that the tort liability insurance system, which had previously required an injured person to rely on the negligent third party’s insurance coverage for personal injury protection, was considered by the legislature to be inadequate. As stated in Manzanares the purpose of the Kansas automobile injury reparations act is to make personal injury protection insurance mandatory by requiring every owner of a motor vehicle to obtain first party coverage for personal injury protection benefits payable by his own insurance company.
Now let us turn to the questions presented in this appeal. Both Zimmerman, the owner-operator of the accident vehicle, and Tiller, the passenger-victim in the accident vehicle, held separate policies of insurance providing identical PIP benefits. The first question to be answered is — Which policy of insurance covered the survivors’ benefits which were required to be paid to Tiller’s survivors under the act? Does the liability for payment of those benefits fall upon the injured person’s insurance company or upon the insurance company insuring the accident vehicle?
For all intents and purposes in the present case the wording in both policies is identical. Each policy provides that the company will pay, in accordance with the Kansas automobile injury reparations act, personal injury protection benefits for expenses and loss enumerated, if incurred with respect to bodily injury sustained by an eligible injured person caused by a motor vehicle accident. An eligible injured person is defined in both policies as:
“1) the named insured or any relative who sustains bodily injury while occupying, or through direct physical contact with while not occupying, any motor vehicle, or
“2) any other person who sustains bodily injury while occupying the insured motor vehicle or through direct physical contact with the insured motor vehicle while not occupying any motor vehicle;” (Emphasis supplied.)
Under the exclusions set forth in these policies appears the following:
“This coverage does not apply:
“d) to bodily injury sustained by any person other than the named insured if such person is the owner of a motor vehicle with respect to which security is required under the Kansas Automobile Injury Reparations Act;”
Other provisions of these two policies follow along the lines of the act itself setting forth definitions of the terms used, limits of liability, conditions for reimbursement and equitable sharing of the expense of payments if two or more companies are liable to pay PIP benefits for the same injury to any one person.
Now let us turn to pertinent provisions of the act itself. The following definitions are set forth under section 40-3103:
“(b) ‘Disability benefits’ means allowances for loss of monthly earnings due to an injured person’s inability to engage in available and appropriate gainful activity, subject to the following conditions and limitations: (1) The injury sustained is the proximate cause of the injured person’s inability to engage in available and appropriate gainful activity; (2) subject to the maximum benefits stated herein, allowances shall equal one hundred percent (100%) of any such loss per individual, unless such allowances are deemed not includable in gross income for federal income tax purposes, in which event such allowances shall be limited to eighty-five percent (85%); and (3) allowances shall be made up to a maximum of not less than six hundred fifty dollars ($650) per month for not to exceed one (1) year after the date the injured person becomes unable to engage in available and appropriate gainful activity.
“(d) ‘Funeral benefits’ means allowances for funeral, burial or cremation expenses in an amount not to exceed one thousand dollars ($1,000) per individual.
“(h) ‘Injured person’ means any person suffering injury.
“(i) ‘Injury’ means bodily harm, sickness, disease or death resulting from an accident arising out of the ownership, maintenance or use of a motor vehicle.
“(q) ‘Personal injury protection benefits’ means the disability benefits, funeral benefits, medical benefits, rehabilitation benefits, substitution benefits and survivors’ benefits required to be provided in motor vehicle liability insurance policies pursuant to this act.
“(*) ‘Survivor’ means a decedent’s spouse or child under the age of eighteen (18) years, where death of the decedent resulted from an injury.
“(y) ‘Survivors’ benefits’ means total allowances to all survivors for: (1) Loss of an injured person’s monthly earnings after his death, up to a maximum of not less than six hundred fifty dollars ($650) per month; and (2) substitution benefits following the injured person’s death. Expenses of the survivors which have been avoided by reason of the injured person’s death shall be subtracted from the allowances to which survivors would otherwise be entitled, and survivors’ benefits shall not be paid for more than one (1) year after the injured person’s death, less the number of months the injured person received disability benefits prior to his death.”
Section 40-3107 relates to required coverage in policies issued by an insurer to an owner of a motor vehicle residing in Kansas. It states, among other things, that every policy shall:
“(b) insure the person named therein and any other person, as insured, using any such vehicle with the expressed or implied consent of such named insured, against loss from the liability imposed by law for damages arising out of the ownership, maintenance or use of any such vehicle within the United States of America or the Dominion of Canada, subject to the limits stated in such policy;
“(f) include personal injury protection benefits to the named insured, relatives residing in the same household, persons operating the insured motor vehicle, passengers in such motor vehicle and other persons struck by such motor vehicle and suffering bodily injury while not an occupant of a motor vehicle, not exceeding the limits prescribed for each of such benefits, for loss sustained by any such person as a result of injury; . . .”
Section 40-3108 relates to authorized exclusions and provides in pertinent part:
“Any insurer may exclude benefits required by subsection (f) of section 7 [40-3107] of this act: (a) For injury sustained by the named insured and relatives residing in the same household while occupying another motor vehicle owned by the named insured and not insured under the policy, or for injury sustained by any person operating the insured motor vehicle without the expressed or implied consent of the insured; and . . .”
Subsection (b) which follows the above provision authorizes exclusions in specific instances not pertinent to our discussion and is therefore intentionally omitted.
Section 40-3109 specifies the injuries for which payment of benefits is required and provides for equitable pro-rata sharing of the expenses by two or more insurers liable for PIP benefits for the same injury to any one person. It reads in pertinent part:
“(a) A self-insurer or the insurer of the owner of a motor vehicle covered by a policy of motor vehicle liability insurance meeting the requirements of this act shall pay any personal injury protection benefits which are required to be provided by this act or in such owner’s policy of motor vehicle liability insurance for any injury':
“(1) Sustained in this state by the owner while occupying a motor vehicle not excluded by subsection (a) of section 8 [40-3108], or while not an occupant of a motor vehicle if the injury is caused by physical contact with a motor vehicle;
“(2) [Not pertinent.]
“(3) sustained by a relative of the owner residing in the same household, under the circumstances described in paragraph (1) or (2) of this subsection, if the relative at the time of the accident is not himself the owner of a motor vehicle with respect to which a motor vehicle liability insurance policy is required by this act;
“(4) sustained in this state by any other person while occupying such motor vehicle or, if a resident of this state, while not an occupant of such motor vehicle, if the injury is caused by physical contact with such motor vehicle and the injured person is not himself the owner of a motor vehicle with respect to which a motor vehicle liability insurance policy is required under this act.
“(b) If two (2) or more insurers or self-insurers are liable to pay personal injury protection benefits for the same injury to any one (1) person, the maximum benefits payable shall be the total of the various maximum benefits provided by this act, and insurer or self-insurer paying the benefits shall be entitled to recover from each of the other insurers or self-insurers an equitable pro-rata share of the benefits paid and expenses incurred in processing the claim.”
Before passing over section 40-3110 we note it provides that PIP benefits due from an insurer under the act are primary and shall be due and payable beginning 30 days after the insurer is furnished written notice of loss. When read in conjunction with section 40-3103 (h) (disability payments) and 40-3103 (y) (survivors’ benefits ) we see that such benefits paid to the injured person up to the time of his death and to his survivors thereafter may be spread over a period of one year and made in monthly payments.
In construing this act we are mindful of the general rules of statutory construction. The various provisions of a statute in pari materia must be construed together with a view of reconciling and bringing them into workable harmony if it is reasonably possible to do so. (Callaway v. City of Overland Park, 211 Kan. 646, 508 P. 2d 902.) 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, even though words, phrases or clauses at some place in the statute must be omitted or inserted. (Wolf v. Mutual Benefit Health & Accident Association, 188 Kan. 694, 702, 366 P. 2d 219.) In construing a statute the legislative intent is to be determined by a general consideration of the whole act. Effect should be given, if possible, to the entire statute and eveiy part thereof. To this end it is the duty of the court, so far as practicable to reconcile the different provisions so as to make them consistent, harmonious and sensible. (Fleming Company v. McDonald, 212 Kan. 11, 16, 509 P. 2d 1162.) When a statute is susceptible of more than one construction it should be given the construction which, when considered in its entirety, gives expression to its intent and purpose even though such a construction may not be within the strict literal wording of the statute. (Gnadt v. Durr, 208 Kan. 783, 785, 494 P. 2d 1219.)
As to our present case we have a provision in the act requiring the owner of the accident vehicle (Zimmerman) to insure himself and any passenger in such motor vehicle. (40-3107 [f].) We have a further provision in the act requiring any person who owns a motor vehicle (Tiller) to obtain insurance to insure himself both as an owner and as an occupant of a motor vehicle. (40-3109 [a] [1].) At first blush these appear to be separate provisions which result in duplicate coverage, and justify equitable pro-rata sharing of the expense of benefits due Tiller’s survivors.
However, section 40-3109 (a) (4) of the act, relating to coverages for both occupants and pedestrians, contains a qualification on such coverage or coverages. The last phrase of this section imposes this qualification, “. . . and the injured person is not himself the owner of a motor vehicle with respect to which a motor vehicle liability insurance policy is required under this act.” Because of the sentence structure and punctuation supplied by the legislature this phrase would appear to qualify the coverage as to pedestrians only. In other words, in order for a policy issued to the owner of the accident vehicle to extend coverage to a pedestrian struck by the owner the pedestrian must not own another vehicle covered by the act.
American Standard, the insurer of the present accident vehicle, contends this phrase of qualification was intended to apply to both an occupant and a pedestrian. American Standard reads the qualifying phrase in 40-3109 (a) (4) as if a comma and the word “provided” were inserted after the word “and”. These suggested additions to punctuation and phraseology would clearly show that the final phrase was meant to modify both of the preceding clauses conjoined by the word “or”. Under such a construction both an occupant and a pedestrian would be required to look to their own insurance company for payment of PIP benefits if they owned another vehicle covered by the act.
Section 40-3109 (a) (1) clearly requires the insurer of the owner of a motor vehicle to pay its insured for any injury suffered while an occupant of another motor vehicle or while he is a pedestrian. A construction of paragraph (4) of sub-section (a) as urged by American Standard would place the final modifying clause of that sub-section in harmony with paragraph (1) of sub-section (a).
This construction of the two provisions would be in line with the observations of this court in Manzanares v. Bell, supra, i. e., that the act makes provision for first party coverage and direct benefits coming from an injured persons own insurance company. We further note that such a construction is in harmony with the provisions of 40-3109 (a) paragraph (3) relating to injuries sustained by relatives of the owner residing in the same household. Such relatives are not covered by the owner’s insurance if such injured relative is himself the owner of a motor vehicle required to be insured under the act.
Throughout the act it appears the legislature intended every owner of a motor vehicle to carry his own PIP insurance and to look to his own company for payment. Insurance is made mandatory for each owner of a motor vehicle. In the act the legislature made certain that every owner of a vehicle could obtain the required PIP insurance for it set up an assigned claims plan. See section 40-3116. Under sub-section (c) of section 40-3116 the legislature sought to require compliance with the mandatory insurance provisions by providing that if you fail to have a policy in effect and own a motor vehicle for which insurance is required you are not entitled to personal injury protection benefits.
The trial court’s interpretation of 40-3109 (a) (4), as to occupants and pedestrians injured by non-owned motor vehicles, if adopted by this court would lead to uncertainty in filing PIP benefit claims. The effect of the trial court’s interpretation would be to require an injured pedestrian to look to his own insurance company if he owned a motor vehicle required to be insured under the act, but if he was injured as a passenger, he could look either to the insurance company insuring the accident vehicle or to his own company. As to any PIP benefits paid to such a passenger the two companies would have to pro-rate their expenses for the PIP benefits, but as to a pedestrian there would be no pro-ration. We can design no reason for such a different treatment and we do not believe the legislature intended such differences.
Accordingly we hold that the last qualifying provision in K. S. A. 1975 Supp. 40-3109 (a) (4), “. . . and the injured person is not himself the owner of a motor vehicle with respect to which a motor vehicle liability insurance policy is required under this act” modifies both preceding clauses separated by the conjunctive word “or”; such qualification relates to both an occupant and a pedestrian injured by another person’s motor vehicle.
It might be noted in passing that in an analogous situation involving the construction of a contractual provision which contained two clauses separated by the word “or” and followed by a final clause introduced by the word “and”, it has been held that the final clause may modify both preceding clauses. (See Kansas City Structural Steel Co. v. L. G. Barcus & Sons, Inc., 217 Kan. 88, 92, 535 P. 2d 419.)
If the above construction of sections 40-3107 (f) and 40-3109 (a) is sound, and we believe it is, an obvious question presents itself. What effect, if any, does 40-3109 (b) have in the scheme of things? Sub-section (b) is the provision which relates to equitable pro-rata sharing of expenses of PIP benefits if two insurance companies are liable for the same injury to any one person. What is the purpose of such a provision if the injured person must look to his own insurance company? It is clear from this and other provisions of the act that the legislature intended to prevent double recovery of PIP benefits. This was recognized and pointed out in Manzanares v. Bell, supra. Why should the provision for sharing be in the act? Are there circumstances in which a person entitled to PIP benefit payments may have primary coverage with two or more companies? We believe there are. Many persons today own more than one motor vehicle. All such vehicles may not be insured under 'the same policy or by the same company. Seotion 40-3108 recognizes this and permits an insurer to exclude PIP benefits for injury sustained by the named insured while occupying another motor vehicle owned by the named insured and not insured under the policy. Sub-section 40-3109 (b) would apply to cases in which no such exclusion was placed in the policy. Also, when an owner holding policies with two or more companies is injured while an occupant in a friend’s car, or is injured as a pedestrian, 'there can be dual liability placed on his own companies. It appears that sub-section (b) does have a sphere in which to operate and it is reasonably necessary under our construction of the act.
The final question raised on appeal concerns the district court’s judgment holding that the provisions of section 40-3113 of the act, relating to an insurance company’s rights of reimbursement and indemnity, do not apply to survivors’ benefits paid after the death of an injured person. This section of the act is divided into two sub-sections: (a) speaks of subtraction by an insurance company from, benefits due an injured person after recovery of damages on a tort claim; (b) speaks of a right or reimbursement from another insurance company in certain instances.
Section 40-3113 in pertinent part reads as follows:
“(a) No subtraction from personal injury protection benefits shall be made because of the value of a claim in tort based on the same bodily injury, but after recovery of damages by judgment, settlement or otherwise is realized upon any such tort claim, a subtraction shall be made to the extent of the recovery, less reasonable attorney’s fees and other reasonable expenses incurred in effecting the recovery, but only to the extent that the injured person has recovered damages from the tortfeasor or his insurer or insurers, which are duplicative of personal injury protection benefits payable. If personal injury protection benefits have already been received, the claimant shall repay to the insurer or insurers out of any such recovery a sum equal to the benefits received, but no more than the recovery, exclusive of reasonable attorneys’ fees and other reasonable expenses incurred in effecting the recovery, but only to the extent that the injured person has recovered said damages from the tortfeasor or his insurer or insurers which are duplicative of personal injury protection benefits received. The injured person’s insurer or insurers- shall have a lien on such recovery to this extent. No recovery of damages by an injured person or his estate shall be subtracted by an insurer in calculating benefits due after such person’s death resulting from an injury for which the benefits were payable, and no recovery under K. S. A. 1973 Supp. 60-1903 shall be subtracted in calculating funeral benefits.
“(b) An insurer having a right of reimbursement under this section, if suffering loss from inability to collect such reimbursement out of a payment received by an injured person upon a tort claim, is entitled to indemnity from one who, with notice of the insurer’s interest, made such payment to the injured person without making the injured person and the insurer joint payees, as their interests may appear, or without obtaining the insurer’s consent to a different method of payment.
“[The sub-sections which follow in this section are not pertinent. ]” (Emphasis added.)
Farm & City has oross-appealed from the judgment of the trial court and contends the payment of the wrongful death claim ($14,800.00) by American Standard to Tiller’s survivors was duplicative of the PIP survivors’ benefits payments. It further claims the payment was made by American Standard in- disregard of the notice of Farm & City’s claim for reimbursement, and that it should be entitled to full reimbursement from American Standard. Farm & City arrives at this conclusion in the following manner. Sub-section (a) of 40-3113 consists of four sentences. The first two sentences establish an insurer’s right to reimbursement of PIP benefits recovered by insureds from tort-feasors or their carriers. The thud sentence elevates this right of recovery to the status of a lien. The fourth sentence which contains the “no recovery pro vision” is glossed over by Farm. & City without discussion, and it thereafter concludes it is entitled to full reimbursement for PIP benefit payments made because of American Standard’s refusal to include it as a joint payee of the $14,800.00 settlement check.
This particular section of the act is not without difficulty. We have no case law to guide us and the statutes and case law of other states are not helpful.
It must be kept in mind that the legislature in giving birth to the Kansas automobile injury reparations act was dealing with two separate and distinct types of action. The first (a survival action) is recognized in K. S. A. 60-1801 which provides in pertinent part:
“Survival of actions; what causes of action survive. In addition to the causes of action which survive at common law, causes of action . . . for an injury to the person . . . shall also survive; and the action may be brought notwithstanding the death of the person entitled or liable to the same.”
This survival statute authorizes recovery of damages accruing between the injury and the death of the injured person. (Flowers, Administratrix v. Marshall, Administrator, 208 Kan. 900, Syl. 3, 494 P. 2d 1184.)
The second (a wrongful death action) is recognized in K. S. A. 60-1901 which provides:
“Cause of action. If the death of a person is caused by the wrongful act or omission of another, an action may be maintained for the damages resulting therefrom if the former might have maintained the action had he lived, in accordance with the provisions of this article, against the wrongdoer, or his personal representative if he is deceased.”
This second type of action is for the exclusive benefit of all the heirs who have sustained loss, and damages are those accruing after death.
The Kansas automobile injury reparations act provides for payment of benefits to the injured person which covers damages for the period between the injury and the death, and it also provides for payment of benefits to survivors which covers damages accruing to the survivors after the death of the injured person. (See Flowers, Administratrix v. Marshall, Administrator, supra.) This should be kept in mind in examining the act.
In Manzanares v. Bell, supra, at p. 617, this court said that 40-3113 was designed to prevent duplicative recovery, i. e., to forestall an injured party from recovering PIP benefits from his own insurer and recovering for the same elements of damage against the tort-feasor or his insurer. Similar no-fault insurance acts adopted by other states contain analogous provisions which prevent double recovery. (See 18A Fla. Stat. Ann., § 627.736 [3], and 17A Mich. Stat. Ann., 1976 Supp., § 24.13116.) These provisions for reimbursement stem from a 1965 study which is generally regarded as the foundation of most no-fault legislation. (Keeton & O’Connell, Basic Protection for the Traffic Victim [1965]; see also Note, Reimbursement Under Florida’s No-Fault Law, 26 Fla. L. Rev. 534, 554 [1974].)
Keeton & O’Connell proposed no-fault automobile liability insurance legislation and suggested provisions to prevent double recovery for elements of damage by granting an insurer, who has paid an injured party for personal injuries, a right to reimbursement if the injured party recovered for the injuries from the tort-feasor or his insurer. (See Keeton & O’Connell, supra, § 1.10 [c] [2], p. 307.) It was recognized, however, that in cases where an injured party dies of his injuries following an automobile accident, two separate claims arise: one for the loss suffered by the injured person before his death and another for loss sustained by the survivors after his death. There is no overlapping between these claims and accordingly payment by an insurer for one claim does not entitle it to reimbursement if recovery is obtained from the tort-feasor or his insurer on the other claim. The existence of these two separate and distinct claims was recognized by the Kansas Supreme Court in Flowers, Administratrix v. Marshall, Administrator, supra.
To clarify the insurer’s right to reimbursement and to allow an injured person, his estate and his survivors to recover for loss occurring both before and after his death the Keeton-O’Connell plan provided that an insurer could not subtract recovery by the injured person or his estate for loss suffered before death in calculating payments due a survivor after the death nor could a survivor’s recovery be offset against payments for loss occurring before death. (See Keeton & O’Connell, supra, p. 307, and pp. 380-386.)
However, we note in section 40-3113 of our act it speaks of subtraction and reimbursement in terms of recovery of damages by the “injured person”, not by the survivors, and provides that no recovery of damages by an “injured person or his estate shall be subtracted” in calculating benefits due after such person’s death. The act specifically provides “no recovery under K. S. A. 1973 Supp. 60-1903 (wrongful death statute) shall be subtracted in calculating funeral benefits.” Sub-section (b) relating to the right of reimbursement also speaks of payment received by an “injured person” upon a tort claim. Nothing is said regarding payments received by survivors.
In the definitions section of the act (40-3103) under sub-section (h) an injured person means any person suffering injury, and under (i) an injury includes death resulting from a motor vehicle accident. Under sub-section (x) a survivor means a decedent’s spouse or child under the age of 18 years. Under these separate definitions in the act we cannot include a “survivor” within the term “injured person”. They have separate and distinct meanings. A survivor may be a claimant but a claimant is not included within the definition of an injured person.
It should also be pointed out that the “no recovery” provision appearing as the final sentence in 40-3113 (a) was inserted in the act in its present form by a special committee on motor vehicle accident reparations at a time when the proposed draft did not provide survivors’ benefits. (See minutes of November 30, 1972, meeting of special committee on motor vehicle accident reparations on file with Legislative Research Department. See also proposed House Bill No. 1754 by Committee on Insurance, Session of 1972.)
At some later date when the act first received the attention of the 1973 legislature the provision for survivors’ benefits was added (L. 1973, ch. 198, § 3.) but the “no recovery” provision remained unchanged. (L. 1973, ch. 198, § 13.)
Another matter which should be considered with regard to indemnification or reimbursement for PIP survivors’ benefits is the interplay between the act and the wrongful death statute. There are differences both in the parties affected and the elements of damage recoverable. A survivor under the Kansas automobile injury reparations act is limited to a decedent’s spouse or child under the age of 18 years. (40-3103 [x].) Survivors’ benefits are allowances to these survivors for loss of an injured person’s earnings and for appropriate expenses incurred in obtaining necessary services in lieu of those ordinarily performed by the injured person for the benefit of himself and family. No payments are included in such benefits for non-pecuniary loss such as mental anguish, et cetera.
However, under the provisions of K. S. A. 60-1901, et seq., (wrongful death statute) the claim may be maintained by any one of the heirs-at-law who has sustained loss by reason of the death. This may include children over the age of 18 years and parents of a deceased person. (See Leonard v. Kansas City Public Ser. Co., 167 Kan. 51, 204 P. 2d 760.) The elements of damage which can be recovered in such an action include non-pecuniary loss such as mental anguish, loss of companionship, loss of marital and filial care and other such items. (See K. S. A. 60-1904.)
In addition apportionment of the damages recovered in a wrongful death action may be made among the heii's-at-law as the judge shall direct. (See K. S. A. 60-1905.) No apportionment among the survivors receiving PIP benefits is provided for in the Kansas automobile injury reparations act.
Recause of these differences it would seem practically impossible to distinguish that portion of damages received in a wrongful death tort action which was duplicative of PIP benefits paid to survivors. In the present case the $14,800.00 settlement with the wife and children was made by American Standard with no attempt to segregate the elements of damage. The payment of $14,800.00 was made to cover “all the elements of damage set forth in K. S. A. 60-1904.” How could this or any court determine what portion, if any, of the $14,800.00 was for PIP benefits and what portion was for non-pecuniary loss? In omitting provisions for reimbursement and indemnity for survivors’ benefits these problems were avoided by the legislature, and after considering the entire act we believe reimbursement and indemnity provisions were intentionally omitted as to survivors’ benefits.
Accox-dingly we hold that section 40-3113 of the Kansas automobile reparations act, providing for an insurer’s or self-insurer’s rights of reimbursement and indemnity, does not apply to survivors’ benefits payable under the act.
In summary we hold: (1) That the trial court correctly determined section 40-3113 does not provide rights of reimbursement for personal injury protection benefits paid to the survivors of the injured person; (2) that the trial court erred in holding exclusion (d) in the insurance policies was in derogation of the coverages required by the Kansas automobile injury reparations act; and (3) that the trial court erred in requiring pro-rata sharing of the expenses of PIP benefits paid to the survivors.
The judgment of the district court is affirmed on cross-appeal and reversed on appeal. The judgment in favor of Farm & City Insurance Company in the amount of $4,328.30 is reversed.
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The opinion of the court was delivered by
Prager, J.:
This is an action brought by the plaintiff, Olathe Ready-Mix Company, Inc., on an open account, arising from the sale of ready-mix concrete to the defendant, Gary Frazier. The trial court entered judgment in favor of plaintiff against Gaiy Frazier in the amount of $5,034.32 and Gary Frazier has appealed.
The sole point raised on appeal is that the trial court erred in admitting into evidence certain of plaintiff’s business records without identification by their custodian. At the trial Lewis Thompson, an employee of plaintiff in charge of business accounts, identified certain records as invoices on shipments of concrete made from plaintiff to defendant. Defendant objected to their admission on the ground that Thompson was not the custodian, since he had to obtain them from plaintiff’s bookkeeper.
The admission into evidence of business records falls within the exception to the hearsay rule governed by K. S. A. 60-460 (m) which provides for the admission of “writings offered as memoranda or records of acts, conditions or events to prove the facts stated therein, if the judge finds that they were made in the regular course of a business at or about the time of the act, condition or event recorded, and that the sources of information from which made and the method and circumstances of their preparation were such as to indicate their trustworthiness”. 60-460 (m) does not require that the custodian of records identify them. The foundation facts may be proved by any relevant evidence and the person making the entries in the records need not be called to authenticate them if they can be identified by someone else who is qualified by knowledge of the facts. (Gard, Kansas Code of Civil Procedure, §60-460 [m], p. 483.) The policy of this section is to leave it up to the trial court to determine whether the sources of information, method, and time of preparation reflect trustworthiness. (State v. Beasley, 205 Kan. 253, 469 P. 2d 453.)
Though not specified in the statement of points, defendant alternatively argues that Mr. Thompson was not qualified to testify as to the foundation facts in this oase. A reading of the record negates this contention. Thompson testified he had access to all invoices and that he was in charge of, and partially responsible for, preparing the bills with the bookkeeper. He readily identified the exhibits as invoices on shipments made from plaintiff to defendant. The defendant has failed to show that the trial court abused its discretion in the admission of these records.
The judgment of the trial court is affirmed.
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The opinion of the court was delivered by
Owsley, J.:
Defendant Ivester Johnson, Jr., appeals from a conviction by a jury of murder in the first degree. (K. S. A. 21-3401.) The victim was a three-month-old girl, Marchelle Johnson. It was undisputed that the child was not fathered by defendant, but he had married the child’s mother before Marchelle was born and had signed her birth certificate as the father. Defendant knew he was not the child’s father before the marriage was consummated.
The exact events leading up to the death of the child are not known and the state’s case rests entirely on circumstantial evidence. The record discloses that on Sunday, October 13, 1974, Lee Ellen Johnson, the child’s mother, had gone to the store, leaving the child in the care of defendant. She testified that when she left home the child was in a normal and healthy condition. When she returned from the store about one hour later, Mrs. Johnson went into the room where the baby slept and, according to her, the baby was “just laying there with her head to the side.” When she picked the baby up, she noticed its head was “swollen.”
Marchelle was taken to Providence Hospital emergency room where she was examined by Dr. Andrew Myers. Dr. Myers testified that he responded to a “Code Blue” emergency and found the infant in dire condition. Despite his efforts to revive the child she died.
Dr. Angelo Lapi performed an autopsy on the deceased child. His external examination of the head indicated it had a “boggy” feeling and was swollen. There was discoloration of the left side of the chest and subtle bruises on both legs between the knees and ankles. In his internal examination of the head the doctor found a horseshoe-shaped fracture of the skull with numerous branch fractures. There was extremely severe subdural hemorrhage. He estimated the injuries were twelve to sixteen hours old, all inflicted at the same time. The injuries were so severe that no medical relief was possible. Cause of death was extensive brain injury due to multiple impacts to the head.
Dr. Lapi said the injuries were the result of multiple blunt impacts of considerable velocity and force to the head. When questioned by the prosecutor as to the cause, the doctor agreed the injuries could have been inflicted by taking the child by the legs and swinging her, causing the head to be repeatedly struck against a wall or similar obstruction. In his opinion such injuries could not have been caused by a baby falling out of bed, by a slip and fall, or by accidentally striking a door jamb.
Dr. Lapi’s testimony was disputed by the first defense witness, Dr. John M. Nichols. Although he never examined the body, he stated the child’s injuries could have been caused by a fall from bed, by a slip and fall, or by striking a door jamb. In his professional opinion the injuries could have been caused by a single blow which could have been either an accident or homicide.
Defendant took the stand in his own behalf. The thrust of his testimony was to deny ever injuring the baby in any way; but if he did, it was accidental. He testified that he took care of the baby on the day before her death while his wife was out. During this time defendant stated the child’s head was struck on the kitchen door jamb as he carried her through the house. A few minutes later he dropped her when he slipped on a sheet. The day of the baby’s death defendant was again left alone to take care of her. When she woke up and started crying defendant took her out of her bed, laid her on his bed, changed her diaper, then got her bottle. According to defendant, she spit up the bottle, getting it on his pants. He went to the kitchen to get a towel and as he came out of the kitchen he heard a bump. The baby had fallen out of bed. He picked her up and put her to bed, whereupon she went to sleep. Shortly thereafter, her mother discovered her condition and took her to the hospital. Defendant denied striking, mistreating or harming the child in any way.
Defendant specifies several points on appeal. He first contends the trial court erred by refusing to give instructions on lesser included degrees of homicide. As his second point defendant contends the trial court erred in overruling his motion for acquittal. The thrust of his argument is that the circumstantial evidence presented did not or could not prove corpus delicti. Further, he argues circumstantial evidence is insufficient to sustain a murder conviction.
Considering defendant’s arguments in reverse order, we find his second point to be without merit. It is a well established rule that circumstantial evidence can be used to prove any element of a crime (State v. Rhoten, 174 Kan. 394, 257 P. 2d 141; State v. Dill, 182 Kan. 174, 319 P. 2d 172; State v. Crosby, 182 Kan. 677, 324 P. 2d 197), and can sustain a conviction of even the gravest offense. (State v. Morton, 217 Kan. 642, 538 P. 2d 675; State v. Ritson, 215 Kan. 742, 529 P. 2d 90; State v. Hale, 207 Kan. 446, 485 P. 2d 1338.)
When considering an appeal challenging the sufficiency of circumstantial evidence to sustain a conviction, this court is limited to determining whether there was a factual basis for a reasonable inference of guilt. (State v. Sparks, 217 Kan. 204, 208, 535 P. 2d 901, and cases cited therein.)
Defendant argues that corpus delicti has not been established because the circumstantial evidence does not eliminate the possibility of accidental death; thus, the evidence is susceptible to a hypothesis of innocence. His argument is essentially the same as the defendant’s argument in Sparks. In that case the defendant was convicted of second degree murder for the death of his two-year-old stepdaughter. The evidence adduced at trial revealed her to be a “battered child,” her demise caused by severe head injuries. The defendant alleged the state had failed to establish a corpus delicti. Summarizing and responding to the defendant’s argument, we stated:
“In all of his points concerning sufficiency of the evidence, defendant relies upon State v. Doyle, 201 Kan. 469, 441 P. 2d 846. Based on the decision in Doyle defendant argues the corpus delicti has not been proved since the evidence is susceptible to a construction which will prove innocence as well as guilt. Defendant’s interpretation of Doyle is correct, but the case is clearly distinguishable from that at bar. In Doyle the state was required to exclude, by evidence, death by accident or suicide since the circumstances there pointed no more strongly to criminal homicide than to death by accident or suicide. In Doyle the dead man was found slumped over the steering wheel of his own automobile with a bullet wound in his right temple. A pistol lay beside his right hand on the front seat of the automobile. There was no evidence, circumstantial or otherwise, to indicate the accused was ever at the scene of the crime. In the instant case direct evidence placed defendant in physical contact with LaDonna, and established the cause of death as multiple bruises or traumas to the head. Obviously, LaDonna’s injuries did not result from self-inflicted blows or attempted suicide.” (pp. 208, 209.)
Because of the factual similarity between Sparks and the instant case, we deem Sparks to control on this issue. Here, as in Sparks, evidence placed the victim in the custody of defendant, and established the cause of death as a massive head injury. Although experts disputed the manner in which the injuries occurred, the jury apparently believed there was substantial credible evidence that the injuries could not have been accidental. Obviously, Marchelle’s injuries did not result from self-inflicted blows or attempted suicide. (See, also, State v. Pyle, 216 Kan. 423, 532 P. 2d 1309; Connell v. State, 39 Ala. App. 531, 105 So. 2d 695.)
Defendant claims the trial court erred in not instructing on lesser included offenses of first degree murder. The record reveals defendant made a timely request for instructions on second degree murder and voluntary and involuntary manslaughter which was denied. We think defendant’s argument has merit and we should remand for a new trial.
K. S. A. 21-3107 (3) provides that in cases where the crime may include some lesser crime it is the duty of the court to instruct the jury, not only as to the crime charged, but also as to all lesser crimes of which the defendant might be found guilty under the evidence presented at trial. This is true even in the absence of a request for instructions by the defense counsel or prosecutor. (State v. Boyd, 216 Kan. 373, 532 P. 2d 1064; State v. Clark, 214 Kan. 293, 521 P. 2d 298; State v. Warbritton, 211 Kan. 506, 506 P. 2d 1152, and cases cited therein.) While the rule is now statutory, it is well embedded in our decisional case law. In State v. Cunningham, 120 Kan. 430, 243 Pac. 1006, this court stated:
“It is made the duty of the court in charging the jury, to state to them all matters of law which are necessary for their information in giving their verdict. (R. S. 62-1447.) The rule in homicide cases has been repeatedly declared that the court should instruct the jury not only on the evidence adduced by the prosecution in support of the higher offense, but also upon the whole evidence and especially upon the lower degrees of the offense, if there is substantial evidence applicable to the lower degrees. The instructions should cover every issue or theory in the case which has support in the evidence. Whether the evidence tended to support the lower degrees of the offense appears to the court to be weak and unsatisfactory, the accused is nevertheless entitled upon request to have the issue and the effect of the evidence submitted to the jury. . . .” (p.431.)
The reason for the rule was set out in the case of State v. Buffington, 66 Kan. 706, 72 Pac. 213:
“The defendant in a criminal prosecution has a right to have the court instruct the jury in the law applicable to his contention, if it be supported by substantial evidence, however weak, unsatisfactory or inconclusive it may appear to the court. To refuse so to instruct the jury would be to invade its province in the trial of a case. The question is not whether, in the mind of the court, the evidence as a whole excludes the idea that the defendant is guilty of an inferior degree of the offense charged, but whether there is any substantial evidence tending to prove an inferior degree of the offense. If there is, then the question of such degree should be submitted to the jury. The unsupported testimony of the defendant alone, if tending to establish such inferior degree, is sufficient to require the court so to instruct.” (pp. 709, 710.)
The necessity of complete instructions is particularly true in homicide cases. (See, State v. Clark, supra; State v. Roberson, 210 Kan. 209, 499 P. 2d 1137; State v. Williams, 182 Kan. 468, 473, 322 P. 2d 726; State v. Fouts, 169 Kan. 686, 221 P. 2d 841; State v. Smith, 161 Kan. 230, 236, 167 P. 2d 594.)
In State v. McAnarney, 70 Kan. 679, 79 Pac. 137, an opinion written by Chief Justice Johnston, it was stated:
“In a prosecution for murder, where there is no direct evidence of the manner of the killing, and the evidence introduced against the defendant is wholly circumstantial, and open to the inference by a jury that the offense committed may have been among the several lower degrees of that charge, it is the duty of the court, upon request, to instruct the jury respecting all the degrees of homicide, it being the province of the jury, and not of the court, to determine the degree, if any, of which the defendant is guilty.” (Syl. 1.)
We will not engage in a discussion of the evidence, but we believe the jury, as the triers of fact, might reasonably draw inferences to convict on any of the lesser included degrees of homicide. For this reason, we believe that on remand the trial court should instruct on first degree murder (State v. Severns, 158 Kan. 453, 455-56, 148 P. 2d 488); second degree murder (State v. Sparks, supra at 209); voluntary manslaughter (State v. Clark, supra at 298; State v. Stafford, 213 Kan. 152, 166, 515 P. 2d 769; State v. Johnson, 201 Kan. 126, 130-31, 439 P. 2d 86); and involuntary manslaughter (State v. Gregory, 218 Kan. 180, 182-83, 542 P. 2d 1051; State v. Childers, 217 Kan. 410, 416, 536 P. 2d 1349; State v. Wilson, 215 Kan. 437, 439, 524 P. 2d 224; State v. Roberson, supra; State v. Brooks, 187 Kan. 46, 50, 354 P. 2d 89; State v. Severns, supra at 457-59).
Defendant also challenges the admissibility of the five-page coroner’s report prepared following Marchelle’s death. The trial court admitted the first page of the report, pursuant to K. S. A. 19-1034, but excluded the last four pages. Defendant complains of the first page because it contains hearsay statements. We have examined the coroner’s report and agree the first page does contain hearsay matter. On remand, we conclude it would be better practice to excise the hearsay information contained on the first page of the coroner’s report and admit the remainder of the report in its entirety.
For the reasons set forth, the case is reversed and remanded for a new trial.
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The opinion of the court was delivered by
Miller, J.:
This is an appeal from an order admitting to' probate the will of Nellie Mae Carothers dated July 24, 1972. The appellant here is Margaret I. Stipancich, daughter of the deceased and a devisee under the will. The appellees are Bob N. Cardwell, designated as executor, and a legatee, and the School of Dentistry of the University of Missouri at Kansas City and the First Methodist Church of Garnett, Kansas, to whom substantial bequests were made.
Rob Cardwell petitioned to have the will admitted to- probate. Margaret Stipancich filed written defenses, and also a petition to admit to probate an earlier will, dated July 13, 1970. The district court, upon transfer, heard the matter, made extensive findings of fact and conclusions of law, and ordered the 1972 will admitted to probate. Margaret appeals.
The principal issue is whether Mrs. Carothers lacked testamentary capacity at the time she executed the will.
We turn first to the factual background. Mrs. Carothers was married three times. Her first marriage ended in divorce shortly after the birth of her daughter, Margaret, in 1924. Her second marriage was terminated by her husband’s accidental death in 1931. Her third marriage was to Dr. Frank C. Carothers. Shortly after their marriage in 1934, they took up residence in Garnett, Kansas, where Dr. Carothers practiced dentistry until his death.
Margaret was raised by her grandparents in Kansas City, Kansas. She never lived with her mother in Garnett. After her marriage to Nick Stipancich she continued to reside in Kansas City, Kansas, where she and her husband purchased a home. Due to financial difficulties they were about to lose their home in 1960 through foreclosure of the mortgage. Dr. Carothers advanced funds so that the home could be redeemed, and Margaret and her husband conveyed title to the property to him. These “loan” funds were not repaid, and this was a bone of contention, appellant claiming that Dr. Carothers was to leave the house to her by his will, and Mrs. Carothers contending otherwise.
During the last several years preceding her death, Mrs. Carothers was not in good health. She suffered from recurring migraine headaches, and she was hospitalized several times. During the last half-dozen years of her life she frequently indulged in the use of alcohol to excess. At first her use of alcohol was prompted by her husband’s declining state of health. After his death in 1969 her mental and physical state continued to deteriorate and within a month after his death she was hospitalized twice following suicide attempts. Though she was particularly depressed, and over-indulged in the use of alcohol immediately after her husband’s death, her dependence upon alcohol declined substantially during the last year of her life, and she resumed an active social life without it. Prior to 1969, Mrs. Carothers made occasional use of morphine, codeine and demerol. Following her suicide attempts in 1969 she received numerous prescription drugs for her headaches and depression as well as for other illnesses; however, in the last months of her life her dependence upon drugs diminished considerably. During this period of time she was receiving injections for pain by her physician. The trial court specifically found that the records of her physician, Dr Stevens, reflect that for a period of approximately six weeks prior to June 8, 1972 (when she gave instructions to her attorney, Fred Mitchelson, for the drafting of her will), and for 10 days prior to July 24 (when the will was executed), she was given no drug injections. According to the testimony of Dr. Stevens, the significant effects of the drugs administered would not last more than 24 hours, and all effects would disappear within a week.
In 1969, after the death of Dr. Carothers and following Mrs. Carothers’ suicide attempts, Margaret Stipancich and Josephine Cardwell Cusintz, Mrs. Carothers’ sister, drove down from Kansas City to see Clark Howerton, a Garnett attorney, to examine commitment papers prepared by Howerton at the request of Mrs. Cusintz. Neither woman was willing to sign the papers to commit Mrs. Carothers, so no proceedings were commenced. Sometime in 1970, Mrs. Carothers was told by someone that her daughter had sought to commit her to the Osawatomie State Hospital. Margaret testified that until she and her mother ceased communicating in January, 1971, her mother often accused her of seeking to commit her. The only other testimony in the record that indicated the testatrix ever mentioned the alleged commitment attempt came from a housekeeper who said that she mentioned it once in August, 1970, and from Everett Bums, a family friend (to whom Mrs. Carothers left $10,000 by the 1970 will), who recalled her mentioning it three or four times in 1971 and possibly once in 1972. The trial court specifically found that appellant’s evidence on this issue, particularly as to any conversations subsequent to January 2, 1971, lacks corroboration, and in the context of her position in this case is self-serving. The trial court noted that Mrs. Carothers failed to mention the alleged attempted commitment to attorney Mitchelson on either June 8, or July 24, 1972, assigning instead other reasons for decreasing her daughter’s share of her estate.
Mrs. Carothers actively participated in numerous business dealings shortly before the execution of her will. She acted, without criticism of her performance, as the executrix of her husband’s estate, and she apparently understood the estate tax and sought a refund of a portion of the tax paid. She was involved in several land and financial transactions involving funds of up to $100,000 in the spring and summer of 1972. And she discussed her portfolio and exhibited some knowledge of the stock market.
On June 8, 1972, Mrs. Carothers first consulted Fred Mitchelson, an attorney in Pittsburg, Kansas, for assistance in several legal matters. Included among them was an application for a refund of part of the federal estate taxes paid in Dr. Carothers’ estate, and the preparation of a new will. Mrs. Carothers told Michelson that she was disappointed with Margaret and her husband concerning their failure to repay funds which Dr. Carothers had expended to purchase the home in which her daughter and husband were living. Margaret had filed a claim against the estate of Dr. Carothers, claiming that she was entitled to receive the home under his will. After Mrs. Carothers refused to give Margaret the property, Margaret became delinquent in making the monthly payments due. An eviction notice was served. Relations between mother and daughter became strained, and contacts were limited to one or two telephone calls after January, 1971. The continuing controversy between Mrs. Carothers and Margaret over Margaret’s home was one of the reasons given by Mrs. Carothers to her attorney, Mitchel-son, for not leaving Margaret anything other than the home.
On July 24 Mrs. Carothers, by prearrangement, returned to Mitchelsons office to execute the will, and after a few corrections were made, she did so. The witnesses to her behavior on or about June 8 and July 24 described her as normal, apparently well, and not under the influence of either alcohol or drugs.
The trial court found the will of July 24, 1972 to have been properly executed and to be the last will of Nellie Mae Carothers. It found that on the date she instructed her attorney and on the date she signed the will, she was not under the influence of alcohol, medicine or drugs; that she knew and recognized her relatives and the natural objects of her bounty, and that she comprehended the nature and extent of her property; that she was not then under the influence of other persons; and that she understanding^ formulated and embodied in the will a plan of distribution which was lawful and reasonable under the circumstances. Finally, the court determined that the troubles between Mrs. Carothers and her daughter were real rather than imaginary, and had sufficient basis in fact that they were not the product of an insane delusion.
Appellant first contends that the trial court erred in failing to give proper credit to the evidence and testimony concerning what appellant characterizes as an insane delusion of the testatrix: that appellant sought to have her confined in a state hospital.
The litigants do not disagree concerning the state of the law on this issue, but part company as to the application of those principles. In In re Estate of Millar, 167 Kan. 455, 207 P. 2d 483, cited in both briefs and by the trial court in its conclusions of law, this court set forth a definition of an insane delusion as follows:
“ . . the meaning of insane delusion, in its legal sense, is “a belief in things impossible, or a belief in things possible, but so improbable under the surrounding circumstances, that no man of sound mind could give them credence.” ... to avoid a will upon that ground the delusion must be an insane delusion, and that the will was the product of that delusion.’ (Johnson v. Johnson, 105 Md. 81, 85, 65 Atl. 918, 121 Am. St. Rep. 570.)
“A belief does not amount to—
“ ‘An insane delusion, unless it appears that his belief was wholly without any basis whatever, and that the testator obstinately persisted in it against all argument which may have been employed to dissuade him. If there are any facts, however little evidential force they may possess, upon which the testator may in reason have based his belief, it will not be an insane delusion.’ (Stull v. Stull, 1 Neb. (Unof.) 389, 396, 96 N. W. 196.)
“ ‘. . . An insane delusion such as will affect testamentary capacity is an idea or belief which has no basis in fact or reason and to which the testator adheres against reason and evidence, or, in other words, it may be stated to be a belief in a state of facts that does not exist and which no rational person would believe to exist. . . .’ ” (68 C. J. 433, § 30.) (pp. 459, 460.)
Appellant urges in support of reversal the case of Harbison v. Beets, 84 Kan. 11, 113 Pac. 423, wherein this court affirmed a lower court ruling that set aside the will of the testator because of mental unsoundness that, this court said, resulted in a lack of testamentary capacity. Harbison offers little assistance to appellant here since the claim there that the trial court’s findings were not supported by the evidence was rejected. The trial court in Harbison set aside the will; here it refused to do so. As this court pointed out in Harbison:
“It is insisted that the findings are unsupported by the evidence, and that some of them are contrary thereto, but from the lips of more than fifty witnesses fell testimony sufficient to support either theory of the case.” (p. 12.)
This court in Harbison treated the case as a question of whether there was substantial competent evidence to support the findings of the trial court and concluded:
“. . . [T]hat the testator entertained such notion [insane delusion] is abundantly shown by the evidence . . .” (p. 18.)
In this case the undisputed evidence was that attorney Howerton prepared commitment papers for the testatrix in 1969 and discussed them with the appellant. Apparently on the basis of some or all of the facts surrounding that meeting the testatrix formed the opinion that the appellant had attempted to have her committed. But if appellant had no such intention the fact that the testatrix was mistaken in her belief is not an insane delusion simply because the basis for the belief would be insufficient for others, if there was some foundation for it in fact. Millar, supra. Also under Millar any will sought to be set aside must first be shown to be a product of that demonstrably insane delusion. Certainly the events of June 8 and July 24, 1972, established by uncontroverted evidence, provided ample support for the trial court’s finding that the will was not the product of a belief on the part of the testatrix that her daughter wanted to confine her, but rather was the result of her disappointment in her daughter during the controversy concerning the latter’s house and as the result of their estrangement since January, 1971.
As we said in Akins v. Akins, 109 Kan. 453, 199 Pac. 922:
“. . . A mistaken belief entertained by one that he has been wronged by another is a very common frailty of humanity, but such belief is not necessarily an insane delusion. . . .” (p. 456.)
There is substantial competent evidence to support the decision of the trial court that the testatrix did not lack testamentary capacity due to an insane delusion when she executed her will on July 24, 1972.
Appellant next contends that if the belief of the testatrix that appellant sought to have her committed was not an insane delusion, it was at least the result of undue influence or fraud practiced upon the testatrix by her sister, Josephine Cardwell Cusintz. In Ginter v. Ginter, 79 Kan. 721, 101 Pac. 634, this court set forth the elements necessary to destroy the validity of a will because of undue influence. The actions complained of:
“. . . must amount to coercion, compulsion or constraint which destroys the testator’s free agency and by overcoming his power of resistance obliges him to adopt the will of another instead of exercising his own. It must be brought to bear directly upon the testamentary act . . .” (Syl. 1.)
Appellant contends, however, that if the testatrix’s belief that appellant sought to confine her was the result of statements made by appellant’s aunt, that was certainly undue influence amounting to fraud inasmuch as such accusations would have 'been false. However, there is no evidence that any influence Josephine may have had upon the testatrix was brought to bear directly upon the testamentary act as it must be in order to destroy testamentary capacity to make a valid will. Ginter, supra. Once again there was substantial competent evidence to support the decision of the trial court that the testatrix did not lack testamentary capacity due to undue influence when she executed her will on July 24, 1972.
The appellant had the burden of proof with respect to her defenses of lack of testamentary capacity because of insane delusion and undue influence. In re Estate of Birney, 177 Kan. 624, 281 P. 2d 1098; In re Estate of Arney, 174 Kan. 64, 254 P. 2d 314. The trial court found that the appellant did not carry this burden. As we pointed out in In re Estate of Smith, 168 Kan. 210, 212 P. 2d 322, our only concern on appeal is:
“. . . whether there was substantial testimony to support the trial court’s finding of capacity and not with conflicting evidence. We do not weigh or compare conflicting testimony. The comparison of such testimony and the weight to be accorded thereto, under the rule obtaining in this state, are matters resting solely in the province of the trial court and not in the appellate court. . . .” (pp. 215,216.)
Here, as in Harbison, there were numerous witnesses appearing on both sides of the question of the capacity of the testatrix. The trial court, as the finder of fact, chose to believe that testimony offered by the appellees. Though the appellant couches the court’s disbelief as “a failure to consider” certain testimony and evidence, it is clear from the findings of the court that it considered appellant’s testimony — it just did not accept it as true.
Here there was substantial competent evidence supporting the trial court’s decision to admit the will to probate. We cannot reweigh the evidence.
Appellant objects to the trial court’s refusal to consider certain lay and expert testimony. As just pointed out no reversible error may be predicated upon such a charge inasmuch as the court is not required to believe all testimony presented to it. Appellant also complains that the trial court refused to permit Dr. Lytton, a psychiatrist who treated the testatrix in 1969, to testify as to whether she was influenced in the making of her will on July 24, 1972 by an insane delusion. The court had earlier permitted the doctor to give his opinion that the testatrix lacked testamentary capacity on that date because she was a victim of an insane delusion, and the court simply ruled that the doctor had already answered the question, as it would seem that he had.
Finally, appellant contends that the trial court erred in restricting the testimony of Dr. Stevens. We have reviewed the record and find no substance to this complaint. As we observed in Millar, supra, both expert and lay testimony is competent on the question of mental capacity. The trier of facts is not bound to adopt the views and opinions of a physician, no matter how highly qualified, and to reject nonexpert testimony. The court may weigh the testimony of all witnesses on the question and follow that evidence which the court as trier of fact finds is entitled to the most weight and credence. We are convinced that the trial court properly considered the evidence before it.
This case was well presented by able counsel on both sides. Abundant evidence supporting the claims of all litigants was offered and received. The trial court weighed the evidence presented and announced its decision in a comprehensive and carefully prepared memorandum. The decision is supported by substantial competent evidence.
Finding no error, we affirm the judgment.
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The opinion of the court was delivered by
Harman, C.:
This is an appeal by the Kansas Commission on Civil Rights (KCCR) from a district court order summarily denying an application for an order directing the Sedgwick County Mental Health Clinic-South Center to comply with a subpoena duces tecum issued by KCCR.
The proceeding grows out of a complaint filed October 18, 1972, with KCCR by Shirley Naylor, a black American, wherein she alleged she had been employed on July 3, 1972, at the Sedgwick County Mental Health Clinic at its South Center and that agency had on October 13, 1972, discriminated against her by reason of her race in terminating her employment as receptionist-secretary and clerk-typist, in violation of the Kansas Act Against Discrimination (K. S. A. 44-1001, et seq., as amended).
According to KCCR’s brief the complaint was not assigned to a field representative for investigation until November 18, 1974— twenty-five months after it was filed — and presumably the respondent agency at that time received its first notice of the complaint. It denied KCCR voluntary access to its records. On February 11, 1975, KCCR issued and served on respondent a subpoena duces tecum pursuant to authority granted in K. S. A. 1974 Supp. 44-1004 (5). It requested production of the complainant’s personnel file and the personnel files of all receptionist-secretaries and clerk-typists employed by respondent from July 3, 1972, to date. Respondent did not comply with the subpoena and on March 7, 1975, KCCR initiated the present proceeding pursuant to 44-1004 (5) for an order directing respondent to comply with it.
The matter came on for hearing May 16, 1975. We are, told the hearing was conducted in chambers with no reporter present. Apparently no evidence was offered and the court had before it only KCCR’s application for an order to enforce a subpoena to which was attached the Naylor complaint and the subpoena duces tecum. The court’s denial order is contained in a journal entry prepared by respondent which merely recited:
“The Court being fully advised in the premises and after listening to arguments of counsel finds as follows:
“1. That no subpoena will be issued pursuant to the matter of Shirley Naylor vs. Sedgwick County Department of Mental Health-South Center; Kansas Commission’ on Civil Rights docket number E-169-73W.”
This appeal ensued.
During the time period relevant to the issue here, presented K. S. A. 44-1005 provided:
“After the filing of any complaint by an aggrieved individual, the commission, or by the attorney general, the commission shall prior to investigation of the complaint, serve a copy on each of the parties alleged to have violated this act, and shall designate one of the commissioners to make, with the assistance of the commission’s staff, prompt investigation of the alleged act of discrimination. . . .” (Emphasis added.)
The import of the foregoing is direction to KCCR to make prompt investigation of all complaints, prior to which the party complained against is to have notice of the matter by service upon it of a copy of the complaint. No particular time is specified in which the commission’s actions are to be taken (Effective July 1, 1975, the, foregoing statute was amended to require that the commission shall within seven days after the filing of a complaint by an aggrieved individual, the attorney general or by the commission, serve a copy upon any party alleged to have violated the act [Laws 1975, Chap. 264, §4]).
Appellant argues it should not be stymied by the delay because its general authority to investigate is not dependent upon the filing of a complaint by an aggrieved individual and the proceeding is one which is not adversary in nature. This is correct in the abstract; however, here a specific complaint by an allegedly aggrieved individual was made and it became the subject of the investigation. Appellant also asserts there is no contention the subpoena duces tecum called for the production of irrelevant matter or that it was unreasonable or oppressive. It urges there is no indication of slothfulness or dereliction on its part but says there was a backlog of fifteen months’ oases when the Naylor complaint was filed; that meanwhile the commission’s jurisdiction and mandate to investigate various types of complaints had been expanded so as to result in an increased caseload without a corresponding increase in personnel.
Appellee asserts that appellant’s failure to serve promptly a copy of the complaint upon it irreparably prejudiced its rights. The contention is that these serious difficulties would be encountered by appellee: Attempting to locate personnel records after such a long period of time, scattered records, changing personnel, faded memories as a result of passage of time, loss of opportunity for early conciliation if the complaint had merit, and finally, the possibility of reinstatement and payment of back wages for more than two years.
Effective December 28, 1973, KCCR adopted the following rule: “A copy of the complaint and any amendments shall be promptly served by the commission on the respondent”. (K. A. R. 21-41-11.) It cannot be said appellant complied either with its own rule or the statute directing prompt notification. .It is, of course, highly desirable that a party complained against be notified of the complaint as soon as possible and that the complaint be investigated promptly. In discrimination cases this is particularly important because in them intent usually is a material factor, something not always easy to prove or disprove. K. S. A. 44-1005 has always provided: “The purpose of the investigation shall be to resolve any such problems promptly”. (Emphasis added.) Thus a prime statutory objective is early resolution of the complaint which can include conciliation.
Here the complaint was filed five days after the alleged act of discrimination. A relatively simple and easily performed act, a short letter of transmittal to appellee of a copy of the complaint upon filing, would have given notice of the matter at issue and any claim to prejudice because of late investigation would have been largely dispelled. Appellee as a public body is obliged to follow the law and if it found some of its employees were in fact violating the anti-discrimination act it could upon notice of any complaint take steps to conciliate and rectify the matter. Yet appellee was given no notice of any kind for more than twenty-five months and it had no opportunity for prompt conciliation.
In Kansas Commission on Civil Rights v. Carlton, 216 Kan. 735, 533 P. 2d 1335, we held that where there is a possibility of relevancy in documents subpoenaed and there is no showing that the subpoena is unreasonable or oppressive the statutes granting the power to subpoena should be liberally construed to permit inquiry. We were dealing there with enforcement of a subpoena duces tecum issued by KCCR and implicit in the decision is recognition of a district courts discretion in determining whether a particular subpoena is unreasonable or oppressive under the circumstances and should be enforced.
Under the particular facts we believe the trial court here, in which discretion is initially vested, could reasonably have found that appellee was prejudiced in the discharge of its own responsibilities by appellant’s long delay in giving notice of the complaint against it. Hence we cánnot declare abuse of discretion in the court’s action.
The judgment is affirmed.
APPROVED BY THE COURT.
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The opinion of the court was delivered by
Schroeder, J.:
This is an appeal in a criminal action by sixteen-year-old Michael W. Young, (defendant-appellant) from a jury verdict which found him guilty of murder in the first degree (K. S. A. 21-3401) while perpetrating or attempting to perpetrate the felony of aggravated robbery. (K. S. A. 21-3427.)
At issue is the jurisdiction of a district court over a previously adjudicated juvenile, a juvenile’s right to counsel and adult advice and the admissibility of a confession when the juvenile was alleged to be under the influence of drugs.
Michael Young was born December 22, 1957. On September 4, 1974, Michael Young was found to be a delinquent child not amenable to the care, treatment and training program available through the facilities of the juvenile court. (See, K. S. A. 38-808 [Weeks], now K. S. A. 1975 Supp. 38-808.)
The state’s information filed December 13, 1974, alleged that on October 28, 1974, Michael Young and two Negro male companions killed Robert Young during the perpetration or attempted perpetration of an aggravated robbery. (K. S. A. 21-3427.) The record does not disclose many facts concerning the robbery and murder. Suffice it to say the police arrested one Rufus Bolden (a/k/a Six-Fingered Looney) who named Michael as a participant in the crime.
At about 7:30 p. m. on November 20, 1974, the police arrested Michael, then sixteen. Michael testified he asked to call his attorney and his father, but his request was denied. (Testimony on this point will be stated in detail later in the opinion.)
At about 8:15 p. m., the police read a waiver of rights form containing the Miranda warnings. (Miranda v. Arizona, 384 U. S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602.) Michael then read the form himself and signed his name on the form. Two police detectives testified Michael indicated that he understood the contents of the waiver of rights document and that he was acting voluntarily without threats or coercion. At trial Michael testified the form was read to him; he was asked if he understood; he told the detectives he understood; and believed that he did understand.
The police detectives described Michael as a little apprehensive and evasive at first. However, when the police said Rufus Bolden had implicated him in the robbery-murder, Michael decided to confess and tell the police how the robbery-murder had occurred. A written statement taken by the police was read, corrected and signed by Michael at 9:17 p. m. The statement described Michael’s role in the robbery, how he hit one person on the head with a hammer, and where the murder weapon could be found. Michael’s statement indicated the murder weapon, a pistol, was at 6th and “Hiawatha”, which Michael changed to “Hallock” and initialed “M. W. Y.” The police went to the Hallock address Michael gave them and found the murder weapon.
Michael testified at the time of his arrest and interrogation he was under the influence of marihuana, reds and quaaludes. The police admitted Michael told them this, but they did not think he was under the influence of the drugs.
The trial court admitted the confession finding Michael was fully competent, understood what he was doing, and made the statement.
At the trial on March 13, 1975, the jury found Michael guilty of murder in the first degree. Appeal has been duly perfected.
The appellant contends the district court lacked jurisdiction over him because the record does not show the exclusive original jurisdiction of the juvenile court was properly waived.
The juvenile code waives jurisdiction in two specific areas. K. S. A. 1975 Supp. 38-806, applicable here, provides in part:
“(a) Except as provided in K. S. A. 21-3611 and K. S. A. 1975 Supp. 38-808 (b) and unless jurisdiction is 'by statute specifically conferred upon some other court or courts, the juvenile court of each county of this state shall have:
“(1) Exclusive original jurisdiction in proceedings concerning the person of a child living or found within the county who appears to be delinquent, miscreant, wayward, a traffic offender, a truant or dependent and neglected, as defined in K. S. A. 1975 Supp. 38-802.”
K. S. A. 21-3611 deals with aggravated juvenile delinquency. It provides punishment under this state’s general criminal laws for certain acts committed by any person confined in the state juvenile institutions. This court has recently construed this statute to be constitutional against due process and equal protection attacks. (State v. Sherk, 217 Kan. 726, 538 P. 2d 1399.) (See also, Le Vier v. State, 214 Kan. 287, 520 P. 2d 1325; Seibert v. Ferguson, 167 Kan. 128, 205 P. 2d 484; and Burris v. Board of Administration, 156 Kan. 600, 134 P. 2d 649.)
The juvenile code also waives jurisdiction by the statutory language of K. S. A. 38-808 (b) (Weeks). The part material to our decision reads:
“. . . Any finding by a juvenile court hereunder, that a child would not be amenable to the care, treatment and training program available through the facilities of the juvenile court, may, if the order so provides, thereafter attach to any future act by such child which is cognizable under the juvenile code as an act of delinquency or miscreancy, and jurisdiction over such child shall be vested in any court of appropriate jurisdiction of the county of such child’s residence or of the county wherein he may be found.” (Now K. S. A. 1975 Supp. 38-808 [c].)
Here the appellant was found to be a delinquent child not amenable to the care, treatment and training program available through the facilities of the juvenile court on September 4, 1974, prior to the offense with which he is here charged. The journal entry disclosing the jurisdiction of the juvenile court was waived for future acts provides:
“It is the Fubtheb Judgment and Obdeb of the Court that pursuant to K. S. A. 38-808 (b) that this certification Order stating that said minor is not amenable to the care, treatment and training program available through the facilities of the Juvenile Court Should and Does Hereby Attach to any Future Act by Said Minor which is cognizable under the Juvenile Code as an act of delinquency or miscreancy, and jurisdiction of said child shall be vested in any court or appropriate jurisdiction of the County of said minor’s residence or of the County wherein he may be found.”
The record on the motion to suppress the confession of the appellant discloses the journal entry of September 4, 1974, was marked State’s Exhibit No. 3 and used to interrogate police Detective James Parks, who was familiar with its contents. Furthermore, the appellant admitted in his-testimony that he appeared in juvenile court on September 4, 1974, and was “certified as an adult on that date.” Under these circumstances the appellant’s contention on appeal that the journal entry was not introduced in evidence at the trial, and could not be found in the juvenile court, is at most technical, because the validity of the adjudication in the juvenile court on September 4, 1974, is not challenged in any respect, and all parties treated the Exhibit as having been admitted in evidence throughout the trial. The journal entry is fully set forth in the supplemental record on appeal.
Given the clear language of both K. S. A. 38-808 (b) (Weeks) and the journal entry, the appellant’s contention that the district court lacked jurisdiction is without merit. No constitutional safeguards are violated by this holding. Due process is necessary for the initial adjudication. (In re Templeton, 202 Kan. 89, 447 P. 2d 158; In re Stephenson & Hudson, 204 Kan. 80, 460 P. 2d 442; and In re Patterson, Payne & Dyer, 210 Kan. 245, 499 P. 2d 1131.) Nothing prevents the legislature from providing that the initial adjudication, with its full due process protection, may change a juvenile’s status to one allowing the juvenile to be charged as an adult for subsequent criminal acts. (See, State v. Sherk, supra; and Ore. Rev. Stat. 419.533[4].)
This court noted in State v. Green, 218 Kan. 438, 544 P. 2d 356:
“. . . [T]he Kansas Legislature could, in the exercise of its wisdom, withhold the protection of the doctrine of parens patriae from all juveniles exceeding fifteen years of age. What the legislature may do absolutely it may do conditionally, providing the conditions prescribed are applicable in like manner to every child in the class affected. (Correia, In re., 104 R. I. 251, 243 A. 2d 759 [1968]; and West Coast Hotel Co. v. Parrish, 300 U. S. 379, 400, 81 L. Ed. 703, 57 S. Ct. 578.)” (p. 442.)
K. S. A. 38-808 (b) (Weeks) providing that the juvenile court may, in its discretion, cause its finding of nonamenability to attach to any future acts committed by such child is a reasonable exercise of the legislative powers. Juveniles who have been so classified may be treated differently than other juvenile offenders. It is not for this court to usurp the legislative function or to pass judgment on the wisdom of legislative acts. (Le Vier v. State, supra at 292; and State v. Sherk, supra at 733.)
Other courts have held that a statute which gives the prosecutor discretion to charge a juvenile as an adult for certain enumerated crimes does not violate either the due process or equal protection clauses. (United States v. Bland, 472 F. 2d 1329 [D. C. Cir. 1972], cert. denied, 412 U. S. 909, 36 L. Ed. 2d 975, 93 S. Ct. 2294; State v. Grayer, 191 Neb. 523, 215 N. W. 2d 859 [1974]; and Jackson v. State, 311 So. 2d 658 [Miss. 1975].) Here the exercise of the prosecutor’s discretion in requesting that the finding of amenability extend to future acts of the appellant, and the trial court’s exercise of discretion in entering an order to extend such finding to future acts of the appellant, do not violate constitutional safeguards.
The appellant next contends the trial court erred in failing to sustain his motion to suppress his confession, and compounded the error by admitting it into evidence, because it failed to meet due process standards of voluntariness. Our attention is first directed to Haley v. Ohio, 332 U. S. 596, 92 L. Ed. 224, 68 S. Ct. 302; and Gallegos v. Colorado, 370 U. S. 49, 8 L. Ed. 2d 325, 82 S. Ct. 1209, 87 A. L. R. 2d 614.
Admittedly, there is some language in these decisions which supports the appellant’s position but that language must be considered in the context and in the light of the facts presented in those cases. In Haley, supra, the fifteen-year-old accused was interrogated constantly by the police for five solid hours before the excluded confession was obtained. At one point during this period, when one group of inquisitors grew tired, they were replaced by a fresh team. There was evidence that Haley had been beaten and mistreated by the police. Furthermore, a lawyer retained by Haley’s mother tiled to see him twice, but was refused admission by the police.
In Gallegos, supra, the challenged confession from a fourteen-year-old boy was not obtained until after he had been held in security detention for five days, during which time he saw no one but policemen. During this time, Gallegos’ mother made repeated efforts to see him, but her requests were denied. It is clear Haley and Gallegos are not typical of the facts in the present case.
We think this case is controlled by In re Gault, 387 U. S. 1, 18 L. Ed. 2d 527, 87 S. Ct. 1428; and State v. Hinkle, 206 Kan. 472, 479 P. 2d 841. The United States Supreme Court in discussing an accused juvenile’s pretrial waiver of his privilege against self-incrimination said in the case of In re Gault, supra:
“. . . If counsel was not present for some permissible reason when an admission was obtained, the greatest care must be taken to assure that the admission was voluntary, in the sense not only that it was not coerced or suggested, but also that it was not the product of ignorance of rights or of adolescent fantasy, fright or despair.” (p. 55.)
In State v. Hinkle, supra, this court considered the totality of the circumstances in determining whether a juvenile’s confession was voluntary. The age of the minor is a factor to be considered in determining the voluntariness and admissibility of a juvenile’s confession into evidence. (State v. Hinkle, supra; and authorities cited therein; and Annot., 87 A. L. R. 2d 624 [1963].) Cases holding admissible the confession of a sixteen-year-old appellant where the confession was freely and voluntarily given are numerous. (State v. Hinkle, supra; State v. Francois, 197 So. 2d 492 [Fla. 1967]; and State v. Hardy, 107 Ariz. 583, 491 P. 2d 17 [1971].)
The length of the questioning is also important. (People v. Pierre, 114 Ill. App. 2d 283, 252 N. E. 2d 706, 710 [1969], cert. denied, 400 U. S. 854, 27 L. Ed. 2d 92, 91 S. Ct. 71; Stokley v. State of Maryland, 301 F. Supp. 653, 659 [D. Md. 1969].) Here the record shows the appellant confessed less than an hour after he waived his Miranda rights.
The youth’s education is also important. (State v. Melanson, 259 So. 2d 609, 611 [La. App. 1972]; Stokley v. State of Maryland, supra at 659; and State v. Ortega, 77 N. M. 7, 12, 419 P. 2d 219 [1966].) Nothing indicates the appellant is not of normal mental ability. (Compare United States ex rel. Burgos v. Follette, 448 F. 2d 130 [2nd Cir. 1971], cert. denied, 406 U. S. 950, 32 L. Ed. 2d 338, 92 S. Ct. 2043; and Williams v. Peyton, 404 F. 2d 528 [4th Cir. 1968].)
The appellant’s prior experience with the police is relevant. (State v. Prater, 77 Wash. 2d 526, 463 P. 2d 640 [1970].) Many cases which have found juvenile confessions involuntary have done so because of no prior experience with police practices. (Commonwealth v. Cain, 361 Mass. 224, 279 N. E. 2d 706 [1972]; Williams v. Peyton, supra; People v. Hildabrandt, 244 Cal. App. 2d 423, 430, 53 Cal. Rptr. 99 [1966].) Here the appellant had previous contacts with the police as indicated by the prior waiver proceedings and by Detective Walton who mentioned several previous contacts with the appellant.
The appellant’s mental state is relevant. (People v. Hildabrandt, supra at 430; State v. Ortega, supra; and see, State v. Holloway, 219 Kan. 245, 547 P. 2d 741.) Here the appellant testified at the time of his arrest he was under the influence of marihuana, reds and quaaludes. The police admitted the appellant told them this. At the time the police arrested the appellant Detective Walton commented he smelled a strong odor of marihuana, an odor that was objectionable to him. The appellant’s eyes were red, but the pupils of his eyes were not dilated. He could walk steadily and did not appear to be out of touch with reality. Detective Walton, who had several previous contacts with the appellant, stated, “[I]f he was under the influence, it didn’t impair his speech and his mentality as far as thinking and answering questions.” In Detective Parks’ opinion the appellant had complete control of his faculties. Detective Walton testified that no doctor was called to examine the appellant:
“Because I feel, from my experience as a policeman and being involved with people, that he was not in the condition that would merit physical, or medical treatment at the time that I interviewed him.”
The testimony of police officers, who had previously known the appellant, that nothing unusual appeared in his condition is relevant in determining the voluntariness of the confession. (Commonwealth v. Darden, Appellant, 441 Pa. 41, 50-51, 271 A. 2d 257 [1970], cert. denied, 401 U. S. 1004, 28 L. Ed. 2d 540, 91 S. Ct. 1243.)
The appellant’s confession indicated he was acting voluntarily and without threats or coercion. At the trial the appellant testified the Miranda form was read to him, he was asked if he understood it, he told the detectives he understood, and believed that he did understand.
The police described Michael as a little apprehensive, wily and evasive at first, but when the police told the appellant Rufus Bolden had implicated him in the robbery-murder, the appellant decided to confess. (See, Stokley v. State of Maryland, supra at 659 [confession after police told defendant they had a witness and the gun].) The foregoing testimony suggests the appellant’s mental faculties were functioning, and that he was intelligent enough to- attempt to rid himself of any responsibility through evasive tactics. The appellant’s statement to the police indicated where the murder weapon could be found. (State v. Vessel, 260 La. 301, 256 So. 2d 96 [1971].) The appellant in reading his statement changed the address to properly reflect where the murder weapon was and initialed the change. (State v. Smith, 216 Kan. 265, 268, 530 P. 2d 1215; State v. Francois, supra at 494; and Coney v. State, 491 S. W. 2d 501, 505 [Mo. 1973].) The police went to the corrected address and found the murder weapon. This again indicates the appellant’s mental faculties were functioning. Under the circumstances, it cannot be said the appellant’s confession was the product of adolescent fantasy, fright or despair.
The appellant’s use of drugs does not prevent the trial court from finding the confession to have been freely and voluntarily given. (State v. McVeigh, 213 Kan. 432, 435, 516 P. 2d 918; and Annot., 69 A. L. R. 2d 384 [1960].) (See also, State v. Harden, 206 Kan. 365, 480 P. 2d 53 [alcohol intoxication alleged]; State v. Kimmel, 202 Kan. 303, 448 P. 2d 19 [alcohol intoxication alleged]; State v. Hansen, 199 Kan. 17, 427 P. 2d 627 [lack of insulin for diabetic alleged]; and State v. Ralls, 216 Kan. 692, 533 P. 2d 1294 [alleged to be under the influence of tear gas].)
In State v. Ortega, supra, the seventeen-year-old Ortega was arrested. When taken into custody it appeared he had been drinking and, as stated by one of the officers, he was in “bad shape.” Ortega stated he had taken some “yellow jacket” pills and had smoked some marihuana. However, the interrogating officers testified that Ortega appeared to be normal when the statement was taken. The court considered the totality of the circumstances and admitted the confession.
The appellant contends the trial court misconstrued K. S. A. 38-839 which provides in part:
“When any child under the age of eighteen (18) years has been taken into custody by a law enforcement official, and such child indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking, he shall not be questioned until he has had an opportunity to consult with retained or appointed counsel. . . .” (Emphasis added.)
The appellant testified at the hearing on the motion to suppress his confession that he asked Officer Walton “could I make a telephone call to contact my attorney, which was Mr. Jim Thompson. And I asked them could I call my father because he had a telephone number, you know.” According to the appellant the officers said: “No; they told me No, not until I made a statement.” The appellant said he asked “about four or five times.”
Police Detective James Parks testified at the hearing on the motion to suppress as follows:
“Q. And after you completed the statement with the defendant, at any time during the time that you were taking the statement do you recall the defendant asking you to call his father or requesting an attorney?
“A. Yes; yes, he did. And I informed him that he had been adjudicated as an adult and it wasn’t necessary for us to call his father.
“Q. All right.
“A. However—
“Q. Did he ask for an attorney?
“A. No.
“Q. Just his father?
“A. Yes. However, I called his father and let him talk to him after obtaining the number.
“Q. Is this before or after you had conversation with him?
“A. This was afterwards.”
After some inquiry by the trial court and argument of counsel the court stated:
“. . . [T]here is no evidence except his uncorroborated word against the officers that he ever asked for [an] attorney. At most, he says he asked to talk to his father. . . .”
. I would hold, unless somebody has authority to the contrary, that once the defendant has certified as an adult, he is to be prosecuted as an adult.
“And I would find in this case that it was not necessary for his father to be there. There’s really no evidence that he did ask for his father.”
At the trial Detective Walton testified the appellant asked to see or talk to his father, but he did not “get his father or get in touch with his father prior to the proceeding.” Detective Parks testified at the trial the appellant did not ask for an attorney at any time prior to or during the course of the statement he made. Detective Parks further testified at the trial that whether, at the time the appellant signed the waiver-of-rights form, he asked to speak to his father “it’s very possible; I don’t know. I advised him that he had been adjudicated and didn’t have to have his dad present once he was waived as an adult.”
The record discloses Jim Thompson was a court appointed attorney to represent the appellant in the district court, after the trial court found the defendant indigent. M. Thompson was relieved as court appointed counsel after trial, when M. Warren McCamish was appointed to represent the defendant on appeal. Nothing in the record shows the appellant knew Jim Thompson as an attorney when the statement was made by the appellant to the police investigating officers. It is readily apparent the trial court did not give credence to the appellant’s uncorroborated testimony that he requested to call an attorney prior to making the statements in question to the police officers.
As we view the record the trial court found the appellant was fully competent, understood what he was doing when he signed the waiver-of-rights form, that he did not indicate in any manner and at any stage of the process that he wished to consult an attorney before speaking and that under the totality of the circumstances the confession was freely and voluntarily made by the appellant. Assuming the appellant asked to talk to his father prior to making any statement, as we must, the trial court ruled, in substance, that a denial of such request did not infringe upon his Fifth Amendment privilege against self-incrimination.
As we construe the Kansas Juvenile Code (K. S. A. 38-801, et seq. as amended) the provisions of 38-839, which the legislature has expressly made a part of and supplemental to the code, apply to any minor under the age of eighteen years when taken into custody by a law enforcement official. The statute is applicable even though the minor under the age of eighteen years has previously been found to be a delinquent child not amenable to the care, treatment and training program available through the facilities of the juvenile court, and that an adjudication waiving the jurisdiction of the juvenile court was ordered to attach to any future act committed by such minor, as here.
The crucial question is whether the appellant’s request to call his father, prior to interrogation by the custodial officers, “indicates in any manner” that he wished to consult an attorney or assert his night against self-incrimination — to remain silent.
The Supreme Court of California in People v. Burton, 6 Cal. 3d 375, 99 Cal. Rptr. 1, 491 P. 2d 793, (1971), had before it the prosecution of a minor for murder and assault with intent to commit murder. The minor was found guilty in the trial court as charged on two counts of murder in the first degree and guilty of assault. The court reversed the conviction. It held when a minor suspect is taken into custody and is subjected to interrogation, without the presence of an attorney, his request to see one of his parents, made at any time before or during questioning, must, in the absence of evidence demanding a contrary conclusion, be construed to indicate that the minor desires to invoke his Fifth Amendment privilege against self-incrimination. The court further held that where the minor suspect invoked his Fifth Amendment privilege by requesting to see one of his parents, a confession obtained by subsequent questioning without acceding to the request was inadmissible. It was held the admission of such confession constituted reversible error even though the subsequent interrogation was preceded by a knowing and intelligent waiver of rights after warning pursuant to Miranda. In the opinion the court said:
“In cases where the suspect makes no express assertion, the crucial question is what behavior is necessary to constitute an invocation of the Fifth Amendment privilege. We have stated several times that no particular form of words or conduct is necessary to constitute such an invocation. ‘A suspect may indicate such a wish in many ways.’ (People v. Ireland, supra, 70 Cal. 2d 522, 535 [75 Cal. Rptr. 188, 195, 450 P. 2d 580, 587].) ‘To strictly limit the manner in which a suspect may assert the privilege, or to demand that it be invoked with unmistakable clarity (resolving any ambiguity against the defendant) would subvert Miranda’s prophylactic intent.’ (People v. Randall, supra, 1 Cal. 3d 948, 955 [83 Cal. Rptr. 658, 464 P. 2d 114].)
“Any words or conduct which ‘reasonably appears inconsistent with a present willingness on the part of the suspect to discuss his case freely and completely with police at that time [fn. omitted]’ (People v. Randall, supra, 1 Cal. 3d 948, 956) must be held to amount to an invocation of the Fifth Amendment privilege. . . .
“In this case we are called upon to decide whether a minor’s request to see his parents reasonably appears inconsistent with a present willingness on the part of the suspect to discuss his case freely and completely with police at that time.’ (People v. Randall, supra, 1 Cal. 3d 948, 956.) It appears to us most likely and most normal that a minor who wants help on how to conduct himself with the police and wishes to indicate that he does not want to proceed without such help would express such desire by requesting to see his parents. For adults, removed from the protective ambit of parental guidance, the desire for help naturally manifests in a request for an attorney. For minors, it would seem that the desire for help naturally manifests in a request for parents. It would certainly severely restrict the protective devices’ required by Miranda in cases where the suspects are minors if the only call for help which is to be deemed an invocation of the privilege is the call for an attorney. It is fatuous to assume that a minor in custody will be in a position to call an attorney for assistance and it is unrealistic to attribute no significance to his call for help from the only person to whom he normally looks — a parent or guardian. It is common knowledge that this is the normal reaction of a youthful suspect who finds himself in trouble with the law.” (pp. 381, 382.)
The Missouri Court of Appeals, Kansas City district, in the case of In re K. W. B., 500 S. W. 2d 275 (Mo. App. 1973), quoted with approval from the Burton case and held that the trial court’s finding of waiver was not supported under the totality of the circumstances standard of proof. A Missouri statute (§ 211.101, R. S. Mo. 1969, V. A. M. S.) requires the presence of a parent at the trial of a juvenile. In the opinion the court said it would not be reasonably within the purposes of our juvenile law to extend to the child the special protection of parental presence at one critical stage of the juvenile process and withhold it at another. Since a juvenile who confesses at the accusatory stage had, in most instances, already had his trial, to deprive him at that stage of parental assistance would render meaningless the presence of the parent at the trial considered necessary for his protection by the statute.
For the reasons hereafter assigned and the authorities cited, which are in the majority, we decline to follow the reasoning of the California Supreme Court on the issue here presented.
The starting point for an analysis of the constitutional rights of juveniles is In re Gault, supra, where in 1967 the United States Supreme Court held that in juvenile delinquency proceedings minors were entitled to the benefit of certain constitutional rights previously only accorded to adults. Among these rights is the privilege against self-incrimination. Although the court expressly confined its ruling to questions concerning the rights of minors in juvenile delinquency proceedings, the following language in the opinion is instructive:
“We conclude that the constitutional privilege against self-incrimination is applicable in the case of juveniles as it is with respect to adults. We appreciate that special problems may arise with respect to waiver of the privilege by or on behalf of children, and that there may well be some differences in technique —but not in principle — depending upon the age of the child and the presence and competence of parents. The participation of counsel will, of course, assist the police, Juvenile Courts and appellate tribunals in administering the privilege. . . .” (p. 55.)
It is apparent from the foregoing that the United States Supreme Court does not hold the presence of counsel or parents the sine qua non to a valid confession nor that waiver of the right to silence is impossible. Rather, the court recognizes that confessions of juveniles involve special problems that may require authorities to use different techniques from those used in connection with adult confessions, and that require courts to use the “greatest care” in assessing the validity of the confession.
The Supreme Court of Wisconsin in Theriault v. State, 66 Wis. 2d 33, 223 N.W. 2d 850 (1974), declined to follow the decisions from Indiana (Lewis v. State, 259 Ind. 431, 288 N. E. 2d 138 [1972]) and Missouri (In re K. W. B., supra) that have adopted a per se rule concerning the validity of juvenile confessions in the absence of prior consultation with the parents. The court followed what it described to be the overwhelming weight of authority and said in the opinion:
“We think that the reasoning of the majority of the appellate courts in the cases cited above is persuasive, as against the rulings of the Indiana and Missouri courts. The receipt in evidence of a confession of a juvenile must be considered under the prevailing test of the totality of the circumstances with the absence of a parent or guardian being one factor to be considered in determining whether the confession was indeed voluntarily given.” (p. 44.)
In the Theriault case the defendant argued that no questioning or investigation may take place until the police notify the parents or guardian, relying on a number of cases from other jurisdictions, but the court answered:
“. . . The cases cited by defendant are inapposite because they involved statutes not merely requiring parental notification, but instead, affirmatively requiring police to immediately bring the minor in custody before certain juvenile or judicial authorities.” (p. 46.)
The obligation of police officers under the Kansas Juvenile Code was discussed in State v. Hinkle, supra, and it serves as a basis for distinguishing cases based on special juvenile code provisions in other jurisdictions.
The appellate division of the New York Supreme Court in the case of Matter of Aaron D., 30 App. Div. 2d 183, 290 N. Y. S. 2d 935 (1968), held that where a child who had just reached age fifteen is taken and detained in custody by police officers, proper safeguarding of his privilege against self-incrimination suggests that he should not be questioned until he and at least one of his parents are notified of his right to remain silent and of his right to counsel, with a further notification that counsel will be appointed if they are unable to afford a defense. (Citing, Family Court Act, §§ 721-729.) In a dissenting opinion Mr. Justice Steuer said:
“. . . What the Constitution interdicts is not self incrimination but involuntary self incrimination. Unfortunately the tendency to pare away the limits of what is voluntary by successive interpretations of prior interpretations has left this distinction with such a small basis that it is not astonishing that it is either not recognized or passed over lightly with a modicum of lip service. And so it is that while the rule is announced that even in the absence of counsel the confession may be admissible provided the greatest care is taken to assure that it is voluntary (Matter of Gault, supra, p. 55), little by little circumstances in a particular case which are held to show a lack of voluntary admission are further extended in the next one. In Matter of William L. (29 A D 2d 182), the boy’s mother was advised by the police that the matter was not serious and she was discouraged from carrying out her original plan to accompany him. Here she was invited to attend, but this is discounted because the officer described the incident as a stabbing and not a homicide. Many years ago a distinguished jurist warned against just such a ratio decidendi, which he called ‘a jurisprudence of conceptions’ (Roscoe Pound, ‘Mechanical Jurisprudence’, 8 Col. L. Rev. 605, 610, quoted by Cardozo, J., in Hynes v. New York Cent. R. R. Co., 231 N. Y. 229, 235). The net result is that while voluntariness is shown by uncontested facts, involuntariness is found by quotations from prior decisions.
“When the fog of interpretive miasma is cleared away and the real question of whether this was a voluntary statement is looked into, there is no doubt at all. A reading of the statement plus the appellant’s answers to the qualifying questions, which the majority gratuitously designates as a ‘token compliance’, explain the situation beyond cavil. Aaron D. was not only willing to explain his adventure, he was anxious to do so. He had been one of a group which killed a man, which fact, per se, made him a tiger in the jungle which his predecessors have made of our streets. He was as eager to have this known as a scholar of like age is to display a Phi Beta Kappa key. District Attorneys experienced in such fields repeatedly tell us that this and similar motives (not conscience) prompt the statements that are so frequently made. (Cf., ‘Interrogations’, 76 Yale L. J. 1519, 1562-1565 [1967].) To say that this statement was not voluntary is to give the word a new and tortured meaning.
“There can be little doubt that the net effect is that the appellant, nauseat ingly described as ‘this child’, will appreciate and react to this disposition by further conduct along the same lines. How else is the staggering increase in serious juvenile crime to be accounted for other than by the knowledge that no felony, however serious, is punishable? The guarantee of due process is a shield to prevent the exaction of forced incriminatory admissions, not a legal excuse for the concealment of crime.” (pp. 189, 190.)
It should be noted this case appears to be confined to minors under sixteen years of age and is based on statutory rights rather than the constitution. People v. Stephen J. B., 23 N. Y. 2d 611, 298 N. Y. S. 2d 489, 246 N. E. 2d 344 (1969) rejected a per se rule for minors not subject to the statute. (See also Matter of William C., 66 Misc. 2d 804, 322 N. Y. S. 2d 410 [Family Ct. 1971].)
In Theriault v. State, supra, the Wisconsin Supreme Court held the confession could be used against the minor in adult criminal proceedings, where it was obtained prior to waiver of the minor by the juvenile court into adult court.
In the case at bar the jurisdiction of the juvenile court was waived prior to the commitment of the offense for which the appellant confessed.
Certainly, where a minor under the age of eighteen years requests to call his father, it would be better police practice to permit the call. But the denial of the appellant’s request to call his father, prior to interrogation and a voluntary and knowing waiver of his rights pursuant to Miranda, violated no constitutional rights. There is no question but that the appellant was informed of his right to an attorney, but he did not ask for an attorney. On this point the finding of the trial court is binding. In People v. Pierre, 114 Ill. App. 2d 283, 252 N.E. 2d 706 (1969), the court said:
“. . . The constitution affords no right to the presence of anyone other than a lawyer trained to protect the legal rights of those accused. While the presence or absence of a parent or responsible adult during the interrogation of a minor suspect may be a factor affecting the voluntariness of a confession, there is no constitutional right to the presence of a parent.” (p. 291.)
(See also Ezell v. State, 489 P. 2d 781 [Okla. Crim. App. 1971].)
A juvenile is capable of making an admissible voluntary confession, and there is no requirement that he have the advice of a parent, guardian or other adult. (Mosely v. State, 246 Ark. 358, 438 S. W. 2d 311 [1969]; State v. Oliver, 160 Conn. 85, 273 A. 2d 867 [1970], cert. denied, 402 U. S. 946, 29 L. Ed. 2d 115, 91 S. Ct. 1637; Stokley v. State of Maryland, supra at 660; State v. Hogan, 297 Minn. 430, 212 N. W. 2d 664 [1973], petition for writ of mandamus and stay denied, 400 U. S. 985, 27 L. Ed. 2d 434, 91 S. Ct. 448; Mullin v. State, 505 P. 2d 305, 309 [Wyo. 1973], cert. denied, 414 U. S. 940, 38 L. Ed. 2d 166, 94 S. Ct. 245; State v. Hardy, 107 Ariz. 583, 491 P. 2d 17 [1971]; Braziel v. State, __ Tenn. Crim. App. __, 529 S. W. 2d 501 [1975]; and Theriault v. State, supra; and other authorities cited therein.) There is no question but that the appellant was informed of his right to remain silent, but chose not to exercise that right.
Whether a confession was freely and voluntarily given is based upon a consideration of the totality of the circumstances, and where there is a genuine conflict in the evidence great reliance must be placed upon the finder of fact. (Andrews v. Hand, 190 Kan. 109, 117, 372 P. 2d 559, cert. denied, 371 U. S. 880, 9 L. Ed. 2d 117, 83 S. Ct. 152; and cases cited therein; and State v. Harden, supra.)
Considering the totality of the circumstances, and particularly the appellant’s past experience with law violation which resulted in a prior adjudication by the juvenile court waiving its jurisdiction over the appellant, we find substantial evidence to support the trial court’s finding that the confession was freely and voluntarily given and admissible in evidence. (State v. Watkins, 219 Kan. 81, 547 P. 2d 810; and State v. Creekmore, 208 Kan. 933, 934, 495 P. 2d 96.)
The judgment of the lower court is affirmed.
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The opinion of the court was delivered by
Fromme, J.:
The defendant, Donald Williams, was found guilty by a jury of aggravated assault (K. S. A. 21-3410) and aggravated burglary (K. S. A. 21-3716). His appeal concerns the refusal to give instructions on simple assault (K. S. A. 21-3408) and criminal trespass (K. S. A. 21-3721) which he alleges are crimes necessarily proved if the respective crimes charged are proved.
K. S. A. 21-3107 (3) provides:
“In cases where the crime charged may include some lesser crime it is the duty of the trial court to instruct the jury, not only as to the crime charged but as to all lesser crimes of which the accused might be found guilty under the information or indictment and upon the evidence adduced, even though such instructions have not been requested or have been objected to.”
Under this statute, when such a claim is made on appeal, this court must first determine if the lesser crime is one necessarily proved if the crime charged is proved. Assuming the first question is answered in the affirmative there is then one additional determination to be made by this court before it can say the trial court committed reversible error in refusing to instruct on the lesser included crime. That determination is whether any evidence introduced during the trial will support a conviction on the lesser included offense. If the evidence at the trial excludes a theory of guilt on an included offense not charged in the information no instruction should be given on the included offense. (State v. Harris, 215 Kan. 961, 529 P. 2d 101; State v. Childers, 217 Kan. 410, 536 P. 2d 1349; State v. Arney, 218 Kan. 369, 544 P. 2d 334.)
The state does not dispute that simple assault as defined in K. S. A. 21-3408 is a crime necessarily proved if the crime of aggravated assault (K. S. A. 21-3410) is proved. Simple assault is generally considered a lesser degree of aggravated assault (6 Am. Jur. 2d, Assault & Battery, § 58, p. 54; 6A C. J. S., Assault & Battery, § 72, p. 445) and when a defendant is charged and tried for aggravated assault the necessity for instructing on simple assault depends upon the evidence at the trial.
The defendant and his wife Susan had been divorced for two years and were the parents of a two year old child. They had continued to see each other and had continued to quarrel. On a fairly recent occasion defendant had assaulted Susan and had threatened bodily harm to her and any of her gentlemen friends found on the premises. On the occasion giving rise to the present charges, Susan and two male friends were seated at a table in her front room planning a party. Defendant appeared at the front door and knocked on a window. After he had knocked a second time, Susan went to the front door. According to Susan’s testimony she saw the defendant on the porch with a gun in his hand. Under the state’s evidence she retreated in fear, after locking the front door, and proceeded upstairs with her two friends. Susan obtained a hand gun from her bedroom. She heard the glass break downstairs in the vicinity of her front door. She returned to the head of the stairs, heard shots from below and proceeded to fire her gun until it jammed. The defendant was wounded in the arm and retreated to his car with his gun in hand making some veiled threats which were overheard by a neighbor. The state’s evidence indicated the glass window by the front door was broken from the outside and that the shots downstairs were fired from a position near the stairway. There were powder burns on the wall near the bottom of the stairway and spent slugs from a gun were found embedded in the stairway in such a way as to indicate their trajectory was upward.
In contrast, the defendant’s evidence was that he had come to the house to visit his two year old child. He knocked twice on the glass window. His gun, which he carried for protection only, was not in sight. Susan broke the glass and shot him in the arm while he was on the porch. She continued to fire at him so he dropped to the floor of the porch, drew his gun, reached through the broken glass, opened the door, stepped inside and started firing as a diversionary action to pin down his assailant or assailants. He did this in his own defense, without any intent to injure anyone, in order to give him time to retreat to his car and escape.
The assault charge in the present case was under paragraph (a) of K. S. A. 21-3410, “. . . Unlawfully assaulting . . . another with a deadly weapon.” Under the evidence introduced by both the state and the defendant the acts which were the basis of the assault charge included the use of a deadly weapon. Four shots were fired by the defendant in the general direction of Susan in a threatening manner, even though defendant did so as a diversionary tactic. Under such evidence the defendant was either guilty of aggravated assault or he should have been acquitted of the charge because he acted in self defense. The jury resolved that conflict in the evidence. It was not error to refuse an instruction on simple assault since there was no evidence which would require an instruction on simple assault.
We turn our attention to defendant’s next point- — that the court erred in refusing to instruct on the crime of criminal trespass (K. S. A. 21-3721) when the defendant was charged with aggravated burglary (K. S. A. 21-3716).
K. S. A. 21-3716 defines aggravated burglary as follows:
“Aggravated burglary is knowingly and without authority entering into or remaining within any building, mobile home, tent or other structure, or any motor vehicle, aircraft, watercraft, railroad car or other means of conveyance of persons or property in which there is some human being, with intent to commit a felony or theft therein.”
The crime proscribed, as applied to this case, requires proof that defendant knowingly and without authority entered the building, that a human being was in the building and that he entered with intent to commit a felony. As pointed out in the note of the judicial council appearing in the annotations appended to the statute, a breaking is not required under the present statute.
We turn next to K. S. A. 21-3721 defining criminal trespass. It reads:
“Criminal trespass is entering or remaining upon or in any land, structure, vehicle, aircraft or watercraft by one who knows he is not authorized or privileged to do so, and,
“(a) He enters or remains therein in defiance of an order not to enter or to leave such premises or property personally communicated to him by the owner thereof or other authorized person; or
“(b) Such premises or property are posted in a manner reasonably likely to come to the attention of intruders, or are fenced or otherwise enclosed.”
The criminal trespass statute as it now appears became effective in 1970. As indicated in the revisor’s notes following the statute, K. S. A. 21-3721 replaced four statutes, K. S. A. 21-2435 (Corrick), 21-2436 (Corrick), 32-139 (Corrick), and 32-142 (Corrick). The four separate statutes which were repealed imposed civil liability for injury or carrying away property belonging to another including trees, minerals, crops, and such, imposed penalties for leaving gates open and tearing down fenced enclosures on agricultural lands, and imposed penalties for hunting, fishing, and trapping on lands of another without permission. We find no statutes of other states comparable to the Kansas statute so the foreign case law is of little help. Contrary to the revisor’s note in the annotations to the statute, the Illinois statutes are not sufficiently similar for the case law of Illinois to be helpful. Illinois has a separate statute on criminal trespass to land which requires either personal notice or posting. The Illinois statutes have no provision similar to our “fenced or otherwise enclosed” provision. Their statute against criminal trespass to vehicles is entirely separate and has no notice requirements. Buildings are not mentioned.
In the Kansas criminal trespass statute the properties sought to be protected are land, structures, vehicles, aircraft or watercraft. Except for land these are some of the same properties named in the Kansas burglary statute. Both statutes relate to a knowing and unauthorized entry or remaining within the properties. However, the burglary statute has for its purpose the protection of the prop erty and the occupants from a felony or theft therein, while the trespass statute has for its purpose merely a restriction against the unauthorized entry or remaining within the property.
It is obvious in reading this trespass statute that something more must be proven to establish criminal trespass than a knowing and unauthorized entry or remaining within the subject property. This is apparent because in drafting the statute the legislature used the conjunctive “and” which follows the first paragraph of 21-3721. The word “and” indicates some additional element is required. The subsequent paragraphs (a) and (b), to which the word “and” refers, describe actual or constructive notice requirements by which a person is or should be advised he is entering or is within another person’s property where he has no right to be without permission.
To fulfill the requirements of the notice provision (a) the state must show the defendant entered or remained upon or in the property in defiance of an order not to enter or to leave such premises. The order may be given by the owner or any other authorized person. The alternative notice requirement (b) relates to forms of actual and constructive notice by which an ordinarily prudent person is advised or should realize he is entering or has entered the premises or property of another. This includes the posting of signs in, on or around the property. In the alternative the state may prove the premises or property on which the trespass occurred was fenced or otherwise enclosed. If a person must enter through a fence or other enclosure to reach lands, structures, vehicles, aircraft, or watercraft he is at least constructively notified or should realize he is not authorized or privileged to do so without permission. Fences and enclosures indicate the boundaries between properties.
The defendant urges that a building or vehicle is enclosed by the inherent nature of the property concerned. In other words a building is enclosed by its walls and roof and a vehicle is enclosed likewise by its sides, doors and roof. Applying the defendant’s reasoning the notice requirement under (b) would be fulfilled by showing that although it was not fenced or otherwise enclosed it was by its inherent nature enclosed. This reasoning by the defendant does not appear sound for two reasons. First, if the legislature intended the enclosed nature of the property, inherent in its construction, to amount to sufficient constructive notice then both provisions for notice under (a) and (b) would be entirely superfluous in the case of structures, vehicles, aircraft, and watercraft. This obviously was not the intention, for under the notice requirement of (a) it refers to premises or property. The term property would include structures, vehicles, aircraft, and watercraft as well as land.
The second reason why defendant’s reasoning as to the meaning of “or otherwise enclosed” does not appear sound is found in the sentence structure of paragraph (b). The paragraph refers to two methods of notice. These two methods are conjoined by the word “or” preceded by a comma. The comma appears to be inserted to separate the two alternative methods of notice. The first method is by posting in a manner likely to come to the attention of intruders; the second is that which is apparent when the premises or property “are fenced or otherwise enclosed.” The notice requirement in paragraph (b) of the statute is not met by establishing the property is of an inherently enclosed nature.
In State v. Woods, 214 Kan. 739, 522 P. 2d 967, it is stated:
“. . . If a lesser offense is to be considered a lesser included offense under the law, all elements necessary to prove the lesser offense must be present and be required to establish the elements of the greater offense charged. If each is a separate and distinct offense, requiring proof of an element not necessary in the other, then neither can be a lesser degree of the other offense. . . .” (p. 744.)
(See also State v. Collins, 217 Kan. 418, 536 P. 2d 1382; State v. Giddings, 216 Kan. 14, 531 P. 2d 445.)
Criminal trespass as defined in K. S. A. 21-3721 includes a notice requirement under either paragraph (a) or (b) as an additional element of the crime, which element is not a necessary element of aggravated burglary.
Therefore the crime of criminal trespass is a separate and distinct crime and is not a crime necessarily proved if the crime of burglary is proved. No instruction on criminal trespass was necessary or proper.
The judgment is affirmed.
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The opinion of the court was delivered by
Schroeder, J.:
This action was initiated as a products liability case involving a Model 71 Jacobs Engine Brake, used on diesel trucks. On March 17, 1969, a tractor-trailer truck in which Keith Wilcheck, (plaintiff-appellant) was a relief driver and passenger overturned as it rounded the second part of an “S” curve on a Tennessee state highway near Hombeck, Tennessee. The truck was being driven at the time by Ron Wilcheck, who was Keith’s brother. Keith Wilcheck sued four parties: The manufacturer of the Model 71 Jacobs Engine Brake, Jacobs Manufacturing Company (hereafter Jacobs); the distributor of the brake who also repaired the brake, Diesel Equipment Co., Inc., (hereafter Diesel); the seller, Doonan Truck & Equipment, Inc., (hereafter Doonan’s of Great Bend); and another truck dealer, Doonan Truck & Equipment of Wichita, Inc., (hereafter Doonan’s of Wichita). The case went to a jury on theories of negligence and breach of warranties. It was alleged the Model 71 Jacobs Engine Brake was defective and caused the accident. The jury returned a verdict for Doonan’s of Great Bend and Doonan’s of Wichita, but was hung as to the other two defendants. The trial court then directed a verdict for the other two defendants, Jacobs and Diesel. Keith Wilcheck has duly perfected an appeal.
The trial of the lawsuit which required three weeks for the presentation of evidence was hotly contested. The record discloses on July 25, 1968, Ron Wilcheck purchased a new 1968 Peterbilt truck equipped with a Detroit Diesel Engine from Doonan’s of Great Bend. Kenneth Doonan taught Ron how to drive. Ron took the truck to Tri-State Motor Transit Company in Joplin, Missouri, passed a driving test and began long haul driving under a lease with Tri-State, a commercial hauling enterprise. On Ron’s first West Coast trip, his difficulties coming down Donner’s pass convinced him he needed an engine compression brake to retard his truck and help eliminate getting his service brakes hot from overuse.
Ron had talked with other truckers and had seen a copy of an “elephant book” published by Jacobs describing their product. After having operated the truck approximately 30,000 miles, on September 7, 1968, Ron purchased a Model 71 Jacobs Engine Brake (also called a Jake brake) from Doonan’s of'Great,Bend who installed it on his truck and Ron continued his long haul business. At the time of the accident which gave rise to this lawsuit, the truck had been operated for approximately 140,000 to 150,000 miles and the engine brake had been in use for approximately 110,000 or 120,000 actual miles. The written warranty on the engine brake was limited to 100,000 miles, and Ron knew the warranty had expired.
Keith Wilcheck testified that when he first began to work with his brother as an assistant driver, his brother instructed him on the purpose and use of the auxiliary device as follows:
“. . . He told me that it was a retarder such as coming up towards stop signs or something like this, it would slow the truck down. It would not stop the truck because this you had to do' with service brakes, but it would aid in slowing down. It helped in slowing down for curves, descent, going down a grade or a mountain. It also worked as a retarder where you did not have to a keep a constant heavy pressure on the brakes. In other words, it saved the service brakes for other uses. He stated that it was a safety device because it would act as a brake, although not in the same sense as service brakes.”
The product of Jacobs is sold by it to original equipment manufacturers for installation on new units and to distributors who in turn sell units to dealers for installation on trucks not originally equipped with an engine brake. Jacobs does not sell its engine brake directly to consumers or users.
A Jacobs Engine Brake is an electrically controlled, hydraulically operated engine attachment which may be used on diesel engines. It alters the exhaust valve operation on an engine not under power and acts as a brake on the diesel engine by causing the engine to work as an air compressor. This in turn permits the engine compression force to be applied to the power train and retard the vehicle normally powered by the diesel engine. Essentially, it works to hold back the diesel engine operated vehicle in a manner similar to a gasoline engine which holds back a moving automobile when the accelerator is retarded. The technical aspects of the operation of the brake are described by Jacobs as follows:
“. . . Installed over the rocker arm assemblies of the diesel engine, the master piston within the engine brake housing picks motion from one part of the engine and through a hydraulic system within the brake, using entrapped engine lube oil, transfers this movement to a slave piston over the exhaust valves causing them to open at approximately top dead center on the compression stroke. This releases compressed cylinder air to the atmosphere. Under normal engine operating conditions, energy from the rear wheels is transmitted to the engine as compressed air in the cylinders. Without a means of exhaust, the energy is returned to the drive wheels on the compression stroke. The engine brake provides a means of exhaust or dissipation of the energy in the cylinder air, preventing its return to the drive wheels via the piston. Continuous energy input to the engine results in controlled retardation of the vehicle by converting the engine to an air compressor or pump. . . .
“The Jacobs Engine Brake will allow a diesel engine to absorb enough energy to keep a 75,000 pound vehicle under complete control without the use of service brakes at 15 miles per hour on a 10 percent grade. By proper gear selection in relation to road speed, total vehicle control can be assured the operator without any change in driving habits, generally leaving service brakes free for emergencies or a final stop.”
During the time the engine brake was in use for over 100,000 miles in the operation of the truck Ron Wilcheck testified it failed on at least seven different occasions, when it was necessary to have adjustments made, or parts replaced. Keith was aware of these failures. Some of this work was accomplished as ordinary warranty adjustments or parts replacement. While the complaints made to the service agencies at the time did not indicate it, the testimony of Ron and Keith at the trial, if believed, justify the inference that the Jacobs brake developed what came to be known by Jacobs as a “hang on” problem. The last repair work on the Jacobs brake was done on March 8, 1969. At that time the Jacobs brake worked properly until March 17, 1969, when the truck overturned on an “S” curve on a Tennessee highway. As a result of the accident, Keith was blinded and paralyzed from the waist down.
The appellant’s evidence presents a complete history of the Jacobs brake and the problems which occurred with it. For a time Jacobs had ordered certain brakes disconnected because of the “hang on” problem. However, on February 7, 1969, Jacobs felt they had solved their problems and ordered a reactivation of all the Jacobs brake. At the time of the accident, the Jacobs brake on the Wilcheck truck had an outdated buffer switch and outdated solenoids.
The “hang on” problems which developed is necessary to an understanding of our decision in this case.
The Model 71 Jacobs Engine Brake was first placed in the hands of distributors for sale to the public in 1963. Other than problems common to such equipment which related to adjustment, service and owner experimentation, the product caused no difficulties and its design and service were entirely acceptable for several years.
In March 1968, however, new problems were reported from the field. They built up in September. By March 1969, there were 12.000 units in service and 500 reports of complaints had been received. The initial reports were confusing and it was difficult to locate the cause of the complaints. Various remedial measures were explored and tested. The field reports indicated that in some instances when a driver would touch the throttle to accelerate while the brake was engaged, there could be a slight or “momentary” delay before the engine brake would deactivate as intended. Don Cummings, manager of sales engineering for Jacobs, testified:
“. . . The Detroit Diesel fuel system in the engine reacts very fast and within a few cycles, the brake and the engine would be fighting each other, really.
# flr $ # #
“. . . We never measured, but it was a short duration that the engine would be decelerating, and it would drop out of the speed range and click.
# * # # #
“. . . [M]aybe one or two seconds, if that long.
# a # »
“. . . [Flailing to shut off and staying on under power is one and the same and this was only momentary.”
These were the characteristics that eventually became known as the “hang-on” problem.
It was determined that if the condition persisted and the unit was operated for a prolonged period of time, engine damage might occur because of high combustion temperatures and pressure being released during the momentarily delayed operation of the engine brake, and contact between valves and pistons would occur. This was the most serious result and might require some engine repair. Simultaneously, there developed occasional unreliability in the function of the electrical control system. Of the more than 12.000 units in operation, Jacobs was called on and did provide different degrees of repair on 50 engines before the “hang-on” problem was resolved and completely eliminated. Except for the property damage to 50 engines and the nuisance created by the momentary delay in operation, no damage, injury or accident was reported by any of the thousands of users of the product during the many years and millions of miles of .use.
The problem was eventually solved by the development and use of a different solenoid and a different micro switch. It had been discovered that the Detroit Diesel Engine Company, which' manufactured some of the disel engines on which the Jacobs engine brake was used, had made some engine modifications (known as A-timing) which required closer tolerances in the engine brake controls to insure satisfactory performance on all engines.
In addition, it was discovered that truck operators were deviating from the diesel manufacturers specifications for maximum engine RPM limits and this deviation was aggravating the situation.
The truck in question was equipped with an A-timed Detroit Diesel engine, and it had been modified at the direction of Ron Wilcheck, and over the protest of the dealer, to exceed the manufacturer’s specifications for maximum RPMs.
Many issues involving instructions and trial error are urged on appeal. We have examined the appellant’s claims in detail; nevertheless, when the evidence is viewed in the light most favorable to the appellant, we find no substantial evidence that any defect in the Jacobs brake, either in negligent repair, design or other theory advanced by the appellant, proximately caused the accident.
Regardless of the theory upon which recoveiy is sought for injury in a products liability case, proof that a defect in the product caused the injury is a prerequisite to recovery. (63 Am. Jur. 2d, Products Liability, § 22, p. 31; Chandler v. Anchor Serum Co., 198 Kan. 571, 426 P. 2d 82; 72 Supp. C. J. S., Products Liability, § 30, p. 46; 1 R. Hursh & H. Railey, American Law of Products Liability 2d, §1:28, p. 89, 91 and §4:17, p. 691 [1974]; and Annot, 13 A. L. R. 3d 1057, § 7, p. 1084 [1967].)
In order to recover in a products liability action, the defective product must be the actual and proximate cause of the injury, and proximate causation is generally deemed to require that the injury be reasonably foreseeable. (72 Supp. C. J. S., Products Liability, § 30, p. 46.)
The proximate or legal cause of an injury is that cause which in natural and continuous sequence, unbroken by an efficient intervening cause, produces the injury and without which the injury would not have occurred, the injuiy being the natural and probable consequence of the wrongful act. (Campbell Sixty-Six Express, Inc. v. Adventure Line Mfg. Co. Inc., 209 Kan. 357, 496 P. 2d 1351; and Elliott v. Chicago, Rock Island & Pac. Rld. Co., 203 Kan. 273, 454 P. 2d 124.)
The mere fact that a person suffered injury while using a product is insufficient in itself to satisfy the requirement of proof that a defect in the product was a proximate cause of the injury. (1 R. Hursh & H. Bailey, American Law of Products Liability 2d, § 1:32, p. 105, 106 [1974]; and 63 Am. Jur. 2d, Products Liability, §15, p. 24.) Our previous cases have indicated proof of injury while in the hands of a user does not establish a breach of implied warranty. (Evangelist v. Bellern Research Corporation, 199 Kan. 638, 433 P. 2d 380; and Butterfield v. Pepsi-Cola Bottling Co., 210 Kan. 123, 499 P. 2d 539.)
Here the various bulletins, memos and letters of Jacobs relate only to showing a defect, not to establishing causation. Neither appellant’s brief nor our research reveals a similar factual situation involving the Jacobs brake. Rather, the evidence indicates this is the first claim for personal injury or accident arising from the “hang on” problem of the Jacobs brake. (See, McCormick on Evidence, § 200, pp. 473, 477-478 [2nd Ed.]; Frank R. Jelleff, Inc. v. Braden, 233 F. 2d 671, 63 A. L. R. 2d 400 [D. C. Cir. 1956]; and Savage v. Peterson Dist. Co., 379 Mich. 197, 150 N. W. 2d 804 [1967].)
The appellant’s own version of the facts on causation are founded largely on the testimony of Ronald Wilcheck. Ron testified while driving at 45 m. p. h. on a Tennessee highway he approached the “S” curve sign. He observed a sign that had a posted speed limit of 40 m. p. h. The Jacobs brake came on properly for the first part of the “S” curve and his speed dropped to approximately 40 m. p. h. The truck continued for another 200 feet, and at this time the Jacobs brake had slowed him down to approximately 37 to 38 m. p. h. Because Ron could not see completely around the curve, he decided to slow down some more. Because the Jacobs brake had a greater retarding effect in a lower gear, Ron started to shift from the low side of seventh gear to the low side of sixth gear. When he pressed down on the accelerator to speed the engine RPM up the Jacobs brake would not shut off as he was coming across the neutral position from seventh gear to sixth gear. He stomped on the accelerator a couple of times to try and get the brake to shut off. He was unable to shut the Jacobs brake off and unable to shift into sixth gear. Thus the truck was left in neutral in a free-wheeling position. Ron testified that he was well into the curve and all he could see to do was just try to steer around it, but was unsuccessful. He testified he practically stood up trying to turn the steering wheel but the truck went into a side skid, overturned on its side, and slid into a beer truck which was sitting in front of a bait shop beside the highway. The vital fact in Ron’s testimony is his placing the speed of the truck before the malfunction of the Jacobs brake at less than the posted speed.
Summarized, the appellant’s complaint is that because the Jacobs engine brake continued to function, when it should have shut off, the driver was not able to shift to a lower gear and reactivate the engine brake for further retarding effect. Because of this it is contended the truck overturned. This is the factual basis upon which the appellant seeks to prevail in this lawsuit. His sole theory on causation depends entirely on that version of the facts. The appellant’s contention wholly ignores the uncontradicted evidence in his case that the speed of the truck before the malfunction was less than the posted speed and therefore no further speed reduction was required. It also ignores the testimony of the appellant’s own expert witness, Dr. William Tonn, a consulting engineer from Texas. He gave the critical speed, the speed at which the tractor unit could negotiate the curve without going out of control, as 47 to 60 m. p. h.
The place where this accident happened in Tennessee was on flat ground. This was the testimony of Ron Wilcheck and there is no evidence to the contrary in the record. Therefore, with the truck in a free-wheeling condition and traveling at less than the posted speed for the “S” curve before the accident, the attempt by Ron Wilcheck to release the Jacobs brake by speeding up the motor could not accelerate the speed of the truck on the highway. The truck could not accelerate in speed by coasting on a highway in flat terrain.
The truck was equipped with service air brakes operated by a foot brake pedal and trailer air brakes operated by a lever on the steering column, which Ron Wilcheck admitted on cross-examination he could have touched in a mere fraction of a second. Neither the service brakes nor trailer brakes were ever used to slow the truck down on this curve. Ron Wilcheck further testified neither he nor Keith ever felt that the problems they were having with the Jacobs brake created any safety problems as far as operation of the truck was concerned; that the problems with the Jacobs brake were an inconvenience, not a safety problem.
The law does not require engine brakes on a truck to assist in retarding its speed, but it does require adequate service brakes and trailer brakes on combination vehicles, as here. The evidence established the service brakes and the trailer brakes on the truck in question to be in good working condition, and adequate to have slowed the vehicle on the curve had they been applied.
On the foregoing evidence we find as a matter of law the appellant has not sustained the burden of proof to show that failure of the Jacobs brake proximately caused the accident and resultant injuries. (Seely v. White Motor Co., 63 Cal. 2d 9, 45 Cal. Rptr. 17, 403 P. 2d 145 [1965].)
Our disposition of the case does not require that the cause of the accident be established. There was considerable evidence by witnesses for the appellees that the truck was speeding in excess of the critical speed on the curve. The record discloses also that the truck in question was loaded with bombs at the Milan Arsenal in Tennessee for the trip in question. The appellant noticed that the braces supporting the load were looser than on previous trips, and commented on that fact to the carpenter who had installed them. Just before the truck turned over the appellant “felt an outward motion to the trailer going to the outside into the curve which I assumed would have been a shift from the left to the right of the trailer.” This shift in the load the appellant believed contributed to the accident. Further cross-examination of the appellant relative to his deposition testimony, which he admitted to be true, discloses the following questions and his answers:
“Question: All right. And what were these conditions that you were going around the curve under. Answer: The truck free-wheeling and the load shift. Question: Keith, are you telling the court and jury that you cannot free-wheel around this corner at 37 miles per hour and make it without tipping over? Answer: You might be able to if the load didn’t shift. Question: Did you feel this load shift before you started tipping? Answer: I think so.”
The record disclosed Harvey Aluminum Sales, Inc., which had loaded the bombs, was originally sued by the appellant as a party defendant, but the action against it was dismissed prior to trial. In this connection the pretrial order recites:
“9. In the event of a verdict in favor of plaintiff against any defendant or defendants, such defendant or defendants shall be entitled to a credit upon judgment entered thereon by the amount paid by or on behalf of Harvey Aluminum Sales, Inc., to plaintiff or on plaintiff’s behalf. However, no comment upon or reference to such matter or to the dismissal of Harvey Aluminum Sales, Inc. from the lawsuit, or to the fact that any sum has been paid by such former defendant, shall be made in the presence of the jury.”
Under all of the facts and circumstances presented by the record in this case the appellant has failed to establish by sufficient evi dence to go to a jury that a defect in the Model 71 Jacobs Engine Brake installed on the truck unit here in question was a proximate cause of the accident resulting in the appellant’s injuries.
The judgment of the lower court in favor of the four appellees herein is affirmed.
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The opinion of the court was delivered by
Fatzer, C. J.:
This controversy is the aftermath of a divorce action. The appeal is from the order of the district court denying a contempt citation for the alleged failure to pay child support.
Mrs. Strecker, the appellant and the former Shirley Wilkinson, was granted a divorce from the appellee, William L. Wilkinson, on January 9, 1960. She was awarded the care, custody and control of Christina Marie Wilkinson, the minor child of the parties, subject to reasonable visitation rights granted the appellee. The decree provided the appellee was to pay the sum of $25 per week for the support of his child. Subsequently the parties filed several contempt proceedings against each other. The appellant claimed child support payments were not forthcoming, while the appellee asserted he had been denied his visitation rights under the decree. In an effort to resolve the protracted conflict, the court asserted its continuing jurisdiction and modified the divorce decree on March 28,1962. The court entered an order which reduced the amount of child support payments to $10 per week and terminated appellee’s visitation rights.
On May 31, 1967, the appellee filed a motion for restoration of his visitation rights and on July 5, 1967, the court entered an order reinstating appellee’s right to visit his child. The court found the appellant had been notified of appellee’s motion, but she did not appear personally or by counsel to contest the proposed visitation rights. The order noted that the court retained jurisdiction to extinguish the appellee’s obligation to provide child support under the decree if the appellant failed to abide by the terms of the visitation order.
Later, and on July 19, 1967, the appellee filed a second motion pertaining to his visitation rights. The appellee requested specific times for visitation with his child. The motion certified that appellant’s attorney had been notified of the motion. The court granted the appellee’s motion on August 18, 1967. Appellant again entered no appearance. Subsequently appellee traveled to Texas, where appellant and her child were then residing, and sought to assert his visitation rights. To this end the appellee obtained an order dated June 5, 1968, from the Harris County, Texas Domestic Relations Court which restated the visitation rights ordered by the Kansas district court. The appellee’s attempt to visit his child was apparently thwarted by appellant. On June 6, 1968, the appellee wrote the Kansas district court asserting his former wife had denied his visitation rights and had fled to Lomita, California, to prevent him from contacting his daughter. Appellee requested the court to terminate his child support obligation.
The district court in a letter dater June 19, 1968, advised appellee that an order terminating child support had been entered effective as of that date. No notice of the order was provided the appellant at any time before or after its entry.
Some seven years later, on February 28, 1975, the appellant filed a motion in the district court for citation in contempt against ap pellee for his failure to pay child support pursuant to the order of March 28, 1961. On March 7, 1975, a hearing was held on appellant’s motion and the court entered an order which read, in pertinent part, as follows:
“Thereupon, the Motion for Citation is presented to the Court. Based upon the flies and records in this case, the Court finds that on March 28, 1962, the order of support theretofore entered was reduced from Twenty-five Dollars ($25.00) per week to Ten Dollars ($10.00) per week. The Court further finds that on June 10, 1968, the Court wrote the Defendant, W. L. Wilkinson, notifying him that an order was being entered that he was not required to pay further support until further order of the Court.
“Thereupon, it is shown by the Plaintiff that she did not receive notice, either before or after the letter of June 10, 1968, directed to the Defendant, concerting the termination of support.
“Thereupon, the Court finds and orders that in view of the foregoing, the claim for the enforcement of past-due support should not be granted, but that the Plaintiff may file a motion requesting that the order for child support be reinstated in a reasonable amount, to be determined by the Court after hearing evidence pertaining to current need for child support and current ability of the Defendant to provide support.
“by the court it is so ordered.”
It is from this order that the appeal was taken.
Before reaching the merits of the issues on appeal, we should first consider the appellee’s contention that an order refusing to issue a citation for contempt is not an appealable order. On this point the appellee’s brief states:
“This appeal is from an order refusing to issue a Citation for Contempt. The only issue before the Court involves a reasonableness of that refusal. In Koons v. Koons, 372 P. 2d 62, 190 Kan. 65, at page 67, the Court held:
“ ‘An order overruling or sustaining a motion for citation in contempt to enforce payment of child support ordered to be paid in a divorce decree is not, standing alone, a final order as defined by G. S. 1949, 60-3303, and therefore not appealable . . .’
“The provisions of G. S. 1949, 60-3303, were carried over in K. S. A. 60-2102.”
The balance of the paragraph in Koons from which the above excerpt was taken reads as follows:
“However, the order sustaining the defendant’s motion to be allowed credit for overpayment of support money was a final order and appealable. That being the case, and the appeal being timely perfected from that order, the propriety of the district court’s order overruling the plaintiff’s motion for citation in contempt is reviewable under G. S. 1961 Supp., 60-3314a.”
We do not agree with the appellee’s assertion that the only issue before this court involves the reasonableness of the refusal to issue a citation for contempt. The court not only denied the citation, but it made final its decision in its June 10, 1968, letter with respect to termination of the child’s support. This matter will be more fully presented as we consider the merits.
We have no difficulty in determining the district court did not err in refusing to grant a contempt citation. We held in Haynes v. Haynes, 168 Kan. 219, Syl. Para. 2, 212 P. 2d 312:
“Judgments in contempt proceedings rest within the sound discretion of the trier of the facts and will not be disturbed on appellate review unless abuse of discretion clearly appears from the record.”
Having informed the appellee by letter that, rightly or wrongly, he no longer need pay child support, the district court was hardly in a position to cite him for contempt for not paying.
The cancellation of child support without notice and opportunity to be heard presents a more serious problem. The appellee wrote a letter to the district court stating his former wife had denied his visitation rights and fled to Lomita, California, to prevent him from contacting his daughter. He requested the court to terminate his child support obligations. The court, without notice to the appellant and without an opportunity for her to be heard, advised the appellee by letter that an order terminating child support had been entered as of that day.
As indicated, some seven years later, the appellant filed her motion for citation in contempt. The district court found that the claim for enforcement of past-due support should not be granted, but that a motion for reinstatement of child support would be reconsidered.
This court first directs attention to the attempt to cancel child support based on correspondence between the judge and the appellee.
The pertinent part of the statute (K. S. A. 1975 Supp. 60-1610 [a] providing for child support reads:
“The court shall make provisions for the custody, support and education of the minor children, and may modify or change any order in connection therewith at any time, and shall always have jurisdiction to make any such order to advance the welfare of a-minor child if (i) the child is physically present in the county, or (ii) domicile of the child is in the state, or (in) the court has previously exercised jurisdiction to determine the custody or care of a child who was at such time domiciled in the state. . . .”
It will be noted that the foregoing statute imposes no requirement of notice and opportunity for a hearing as a prerequisite to modification of orders for support, custody or education of children in divorce cases. However, it appears to be a very general rule that a proper motion must be filed, notice to the adverse party given and the adverse party afforded an opportunity to be heard. Due process requires reasonable notice even in the absence of an express statutory provision requiring such notice.
The general rule is stated in 27B C.J.S. Divorce § 322 ( 3) b (1959) as follows:
“In most jurisdictions service of process is not required to authorize the court to act in a proceeding to modify child support provisions of a divorce decree, but notice of the motion or application or of the time for hearing is usually required.
“. . . If a decree modifying a child support provision is entered without any notice whatsoever to the adverse party, the court has acted without jurisdiction, and the decree of modification may be void. . . .”
Further guidance is found in 27B C. J.S., Divorce § 322 ( 3) f (1959):
“Parties to a divorce decree must be afforded an opportunity to be heard in a proceeding to modify a provision as to child support, and such a proceeding is governed by local practice, and may be triable by rules of equity practice.”
Decisions of this jurisdiction are in accord with these rules. In Ramey v. Ramey, 170 Kan. 1, 3, 223 P. 2d 695, 697, we stated:
“At the outset it should be stated the appealing parties recognize the established rule (See Phillips v. Phillips, 163 Kan. 710, 712, 186 P. 2d 102, and cases there cited) that ordinarily the jurisdiction of district courts over the custody and support of minor children in a divorce action is a continuing jurisdiction and that the court may on proper motion and notice modify or change any order previously made providing for such custody and support whenever circumstances are shown which make such modification proper.” (Emphasis added.)
In Smith v. Smith, 171 Kan. 619, 625, 237 P. 2d 213, 217, this court considered the necessity for notice on change of child custody covered by the same statutory language we are now considering and said:
“On the question of requirement of notice in change of custody proceedings we are unable to state the general rule with more clarity than was done in the recent case of Bailey v. Bailey, 164 Kan. 653, 192 P. 2d 190, where it was said:
“ ‘Where in an action for divorce and custody of a minor child the trial court made its order fixing such custody, and at a later date a proceeding is instituted to change such custory, the court may make such an order only where the person having custody or right to custody of the child under the original order has had notice of the proceeding to change custody and an opportunity to defend.’ (Syl. 1.)”
In view of the foregoing, we conclude the district court’s letter and order terminating payment of child support were void and of no effect and formed no basis for the court’s order of March 7, 1975, from which the appeal was taken. The district court was without authority to make a change in the order for child support without notice and a hearing on the matter.
The appellee has raised the defense of laches in his argument claiming that the appellant’s acquiescence for over six years in his failure to make child support payments bars her from seeking enforcement of the order for past-due installments.
Here, we are dealing with enforcement of support obligations, if any, not barred by the statute of limitations. Installments for support of a minor child become final judgments as of the dates due. They may be enforced as other judgments and are barred by the statute of limitations as other judgments. (Riney v. Riney, 205 Kan. 671, 473 P. 2d 77; Sharp v. Sharp, 154 Kan. 175, 117 P. 2d 561.) In Fangrow v. Fangrow, 185 Kan. 227, 341 P. 2d 998, we said:
“. . . Furthermore, when payment of child support is ordered to be made in installments, a final judgment results as each installment becomes due and unpaid, or, so many of them as may be due and unpaid at any one time may be determined to be the total judgment by a simple mathematical calculation. It is unnecessary for a court to reduce due and unpaid installments to a lump-sum judgment before each of such judgments, or a total of them, may be enforced.” (1. c. 230.)
The appellee relies on McKee v. McKee, 154 Kan. 340, 118 P. 2d 544, 137 A. L. R. 880, and Clark v. Chipman, 212 Kan. 259, 510 P. 2d 1257, to support his argument that laches should bar the appellant’s recovery of past-due child support payments. Both cases are distinguishable from the instant case. In McKee recovery of past-due support payments was barred by laches; however, the action was brought after the child had reached majority and no longer required or asked support from either parent. In Clark we approved the application of laches in an action for child support. There, however, a marriage settlement agreement fixing the terms of child support, which continued into the children’s majority, was incorporated in the divorce decree. The decision dealt with enforcement of the terms of a contract, and not with the husband’s statutory and common-law obligation to provide support for his minor children.
McKee and Clark indicate that when an action is brought for past-due child support payments after the child has reached majority, the question of laches may well be considered. While the record in the instant action does not reveal the child’s age at the time the appellant filed the contempt proceedings, we assume the child was still a minor in view of language in the district court’s journal entry denying enforcement of past-due support stating the court would entertain a motion requesting reinstatement of child support.
Peters v. Weber, 175 Kan. 838, 267 P. 2d 481, is more on point with the instant action. In Peters the divorce decree ordered the husband to pay $20 per month for the child’s support during its minority. After twelve years of nonpayment, the wife brought an action in the form of a contempt proceeding to enforce the husband’s support obligation. Noting that the child was still a minor and enforcement of the past-due payments would accrue directly to his benefit, we held the husband’s obligation was not barred by laches.
Support of children, like their custody, is a matter of social concern. It is an obligation the father owes the state as well as his children. (Grimes v. Grimes, 179 Kan. 340, 295 P. 2d 646.) The parental duty to provide for the support and maintenance of a child continues through the child’s minority, and the obligation to support may be enforced by an action at any time during the child’s minority. (Effland v. Effland, 171 Kan. 657, 237 P. 2d 380.) We note in passing that statutes of limitation are considered “remedial” rather than “substantive” in that they bar only the remedy and not the right. (See, e. g., In re Estate of Wood, 198 Kan. 313, 424 P. 2d 528.)
The doctrine of laches is an equitable device designed to bar stale claims (Clark v. Chipman, supra), and its application depends on the special circumstances of each case. In Peters v. Weber, supra, we said:
“Under all of the circumstances of the case we are unwilling to hold that defendant is entitled to invoke the defense of laches as a bar to the enforcement of his moral and legal obligation to his minor child. The rights of the latter are not to be waived by the inaction and passive acquiescence on the part of the mother. We are of the opinion the court erred in ruling that defendant was not liable for the payments which became due within five years prior to the commencement of this proceeding.” (1. c. 844.)
Under'the facts and circumstances of the instant cáse, we are likewise unwilling to hold that the defendant may invoke the defense of laches as a bar to enforcement of his moral and legal obligation to his minor child. However, the record is silent as to the number, if any, of past-due child support payments which are or may be enforceable by appropriate remedy. In this respect, the district court should afford the appellant the opportunity to show the age of the child and what past-due child support payments are valid enforceable judgments.
The judgment is affirmed insofar as it denied the motion for a contempt citation, but is remanded to the district court for further consideration with respect to child support in accordance with the views expressed in this opinion.
rr is so ORDERED.
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ORDER OF PUBLIC CENSURE
This is an original proceeding in discipline against the Honorable Norman B. Sortor, Judge of Division No. 2 of the Magistrate Court of Wyandotte County, Kansas.
Formal proceedings commenced with the mailing of a Notice to the Judge by the Commission on Judicial Qualifications, all as provided by Rule No. 612 (214 Kan. cv) of this court. Subsequently, the judge filed a written admission of certain specific charges, and a formal hearing was therefore unnecessary. The Commission made findings of fact and conclusions of law, and concluded that Judge Sortor had violated certain of the Canons of Judicial Conduct set forth in our Rule No. 612 (214 Kan. xciv). The Commission recommended censure. Judge Sortor promptly elected to accept the recommendation of the Commission. In this posture the matter comes before us.
The Canons involved are Canons 3 A (3) and (4). These read in applicable part as follows:
“(3) A judge should be patient, dignified, and courteous to litigants, jurors, witnesses, lawyers, and others with whom he deal in his official capacity
“(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 . . .” (Rule No. 601 of Supreme Court of' Kansas, 214 Kan. xciv, xcv.)
We carefully reviewed the record before the Commission and concur in its findings and conclusions. We need not burden this record with a detailed statement of the factual background, but deem it sufficient to state that the record establishes that on various occasions and while in the performance of his official duties as a judge, respondent was rude and discourteous to lawyers and litigants alike, and on two occasions he terminated proceedings before him without granting to the interested parties that right to' be heard which justice demands and which litigants have a right to expect in our courts.
Lest we be misunderstood we should observe that these instances do not demonstrate any malevolent purpose or motive on the part of Judge Sortor. They simply display temperamental actions, comments and outbursts inimical to that courteous, fair and impartial consideration which is the hallmark of justice. Such unfortunate judicial conduct reflects adversely upon the judiciary as a whole and creates a bad image and impression of courts in general. It cannot be tolerated.
The vast majority of Americans have their sole contact with American Courts in state courts of limited jurisdiction — the small claims, police and magistrate courts. Judges of those courts should be no less courteous to and considerate of litigants and counsel than should judges of other trial and appellate tribunals. While we recognize the vast volume of litigation handled by the magistrate courts, the pressures of such caseloads, and the ever present need to terminate cases with dispatch, we cannot countenance the handling of cases in any court in such a manner as to preclude to the litigants a fair opportunity to be heard, nor can we sanction judicial discourtesy to litigants and counsel. The persons appearing before Judge Sortor in the cited instances were not accorded the kind of treatment mandated by Canons 3 A (3) and (4) and required in our system of justice.
Accordingly, we conclude that Norman B. Sortor should be and he is hereby censured by this court, and directed to pay the costs of this proceeding. This Order shall be published, and shall constitute the public record in this matter.
XT IS SO ORDERED.
Dated at Topeka this 12th day of June, 1976.
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The opinion of the court was delivered by
Fromme, J.:
Appellant Steve Hicks seeks to withdraw a plea of nolo contendere to a charge of first degree murder and have this court vacate his sentence of life imprisonment.
The vehicle used in seeking such relief is the post-conviction remedy provided by K. S. A. 60-1507. The basis for his motion in the district court was that the court accepting his plea failed to advise him as to the consequences of such a plea and that he was misinformed by his attorney. He argues that he should have been informed that he would not be eligible for a parole for fifteen years. The district court summarily denied his motion after examining the files and records documenting the circumstances surrounding his plea.
On appeal he contends the trial court erred in failing to hold an evidentiary hearing so he might establish his claim. This court for the first time is presented with the question of whether parole eligibility is such a consequence of a plea of guilty or nolo contendere as should require the court accepting the plea to advise a defendant on that subject.
The files and records in the district court disclosed the following facts. On April 17, 1972, Hicks entered a plea of nolo contendere to a charge that he murdered Homer Roller on October 22, 1971, while participating in the robbery of a liquor store. Before accepting the plea the trial court questioned Hicks in accordance with the directions of K. S. A. 22-3210, which mandates that a trial court inform a defendant of the consequences of such a plea and the maximum penalty which may be imposed. The colloquy between the court and the defendant as transcribed by the court reporter reads:
“The Court: It is my duty in such a case, Mr. Hicks, to inform you that the statutes that you stand charged with violating is a capital offense and that the maximum sentence under this charge would be death by hanging. Do you understand that?
“The Defendant: Yes, sir.
“The Court: Speak up, because we are on the record here.
“The Defendant: Yes, sir.
“The Court: Before I accept this plea of nolo contendere I am going to ask you certain questions, and will you be sure to give me the correct answers to those questions?
“The Defendant: Yes, sir.
“The Court: Is this a free and voluntary plea?
“The Defendant: Yes, sir.
“The Court: You have had the benefit of Mr. Russo’s counsel, have you?
“The Defendant: Yes, sir.
“The Court: And you are satisfied with his services in this case?
“The Defendant: Yes, sir.
“The Court: Do you understand that in this, as in any other case, you would be entitled to a trial by jury in this matter?
“The Defendant: Yes, sir.
“The Court: And in that case, Mr. Hicks, it would be necessary for the State of Kansas to prove this charge beyond any reasonable doubt; do you understand that?
“The Defendant: Yes, sir.
“The Court: And do you wish a trial by jury?
“The Defendant: No, sir.
“The Court: You are absolutely sure of that?
“The Defendant: Yes, sir.
“The Court: We will proceed, then, with evidence on the hearing. First of all, I make a finding this is a free and voluntary plea of nolo contendere; that the defendant has been informed by the Court of the consequences of his act and the maximum sentence imposed by law concerning this act; that he has had the benefit of counsel throughout every stage of this proceeding; that he has been informed by counsel, among other things, of his right to trial by jury and he has this morning expressly waived that right to trial by jury; and, therefore, I consider this to be a free and voluntary plea.”
The court then heard evidence in support of the first degree murder charge, accepted Hicks’ plea and sentenced him to life imprisonment.
The effect of a plea of nolo contendere is set forth in K. S. A. 22-3209 (2) as follows;
“A plea of nolo contendere is a formal declaration that the defendant does not contest the charge. When a plea of nolo contendere is accepted by the court, a finding of guilty may be adjudged thereon. The plea cannot be used against the defendant as an admission in any other action based on the same act.”
After the defendant was adjudged guilty by the trial court on the plea Hicks was sentenced to life imprisonment and no direct appeal followed. Three years later the appellant filed his present motion contending that the court failed to inform him of his ineligibility for early parole after the sentence of life imprisonment, and that his attorney misinformed him on the subject.
Hicks maintains that ineligibility for early parole and impossibility of a reduction of sentence are consequences of which a defendant must be advised. In support of his contention appellant cites a number of federal decisions that hold a court must advise a defendant that he will be ineligible for parole in appropriate cases. Such a warning is required to conform with due process requirements as interpreted by the United States Supreme Court in Boykin v. Alabama, 395 U. S. 238, 23 L. Ed. 2d 274, 89 S. Ct. 1709, and codified in Rule 11 of Fed. R. Crim. P. (See Roberts v. United States, 491 F. 2d 1236 [3d Cir. 1974]; Bye v. United States, 435 F. 2d 177 [2d Cir. 1970]; Jenkins v. United States, 420 F. 2d 433 [10th Cir. 1970]; Durant v. United States, 410 F. 2d 689 [1st Cir. 1969]; Munich v. United States, 337 F. 2d 356 [9th Cir. 1964]; United States v. Diggs, 304 F. 2d 929 [6th Cir. 1962]; and Anno. Guilty Plea — Ineligibility for Parole, 8 A. L. R. Fed. 760.)
The rationale underlying the view of these circuits is that a defendant who is unaware at the time of entering a plea of guilty that he will be ineligible for parol, does not plead with an understanding of the consequences of the plea, since the nature of parole is so well understood that its availability may be regarded as assumed by the average defendant. (Moody v. United States, 469 F. 2d 705, 708 [8th Cir. 1972].)
An examination of those cases indicates their rationale has a limited application to those cases where the federal law declares on conviction of a particular crime, such as certain violations of the federal narcotics laws, the defendant shall be ineligible for parole and must serve a flat term of years. These cases are not controlling under Kansas statutes.
Our release procedures are provided in K. S. A. 22-3701, et seq., as amended. Parole authority has been delegated to the Kansas adult authority (22-3707) under procedures outlined in K. S. A. 1975 Supp. 22-3717, in pertinent part as follows:
“(1) The authority shall have power to release on parole those persons confined in institutions who are eligible for parole when, in the opinion of the authority, there is reasonable probability that such persons can be released without detriment to the community or to themselves.
“(2) After expiration of one hundred twenty (120) days from the date of sentence, the Kansas adult authority is hereby granted the authority to place upon intensive supervised parole any inmate classified in the lowest minimum security classification who has achieved such status under rules and regulations promulgated by the secretary of corrections, except in the case where a death sentence or life imprisonment has been imposed as the minimum sentence or where the minimum sentence imposed aggregates more than fifteen (15) years, after deduction of work and good behavior credits. Persons confined in institutions shall be eligible for parole after fifteen (15) years if sentenced to life imprisonment or to a minimum term which, after deduction of work and good behavior credits, aggregates more than fifteen (15) years.”
The provision in the above statute which states that any person sentenced to life imprisonment shall not be eligible for parole for fifteen vears must be read in conjunction with the provisions of K. S. A. 21-4603 (2). As pointed out in State v. Sargent, 217 Kan. 634. 538 P. 2d 696, a term of life imprisonment imposed for murder in the first degree constitutes a minimum term of confinement within the meaning of K. S. A. 21-4603 and a district court may reduce a life sentence to a term of years when such reduction is recommended by the secretary of corrections and the court is satisfied that the best interests of the public will not be jeopardized and that the welfare of the inmate will be served by such reduction.
Under the procedures permitted by the statutes of Kansas it is possible to accelerate the eligibility for parole of a person serving a sentence of life imprisonment by having the sentence reduced to a term of years. In such cases the fifteen year provision contained in K. S. A. 1975 Supp. 22-3717 (2) may be ameliorated as authorized by K. S. A. 21-4603 and as construed by this court in State v. Sargent, supra. The ineligibility for parole urged by the petitioner as a basis for relief in this ease has no substance in fact or in law.
Parole eligibility is nOt'One of the consequences of a plea contemplated in K. S. A. 22-3210 on which the court must inform a defendant. A court in accepting a plea of guilty or nolo contendere to a charge of first degree murder is not required to advise the defendant as to his future parole eligibility.
The other basis for alleged error in refusing to grant an evidentiary hearing is petitioner s bald statement that he was misinformed by his attorney as to his parole eligibility. An attorney representing a defendant has a duty to advise the defendant as to the law affecting defendant’s rights. The thrust of petitioner’s present charge is to claim inadequacy of counsel.
We note that during the allocution petitioner advised the court he had had the benefit of counsel and was satisfied with his services in the case. The present accusation coming three years after his plea is unsupported by affidavit of either the attorney or of the petitioner. No witnesses are named, no factual background is set forth, and the nature of the alleged erroneous advice received from the attorney is not explained or set forth in his motion. The federal courts have held that such a bald statement cannot be the basis for requiring an evidentiary hearing on the present claim. See Serrano v. United States, 442 F. 2d 923 (2d Cir. 1971), cert. den. 404 U. S. 844, 30 L. Ed. 2d 80, 92 S. Ct. 145, and United States v. Welton, 439 F. 2d 824 (2d Cir. 1971), cert den. 404 U. S. 859, 30 L. Ed. 2d 102, 92 S. Ct. 157.
To require an evidentiary hearing on a post-conviction motion under K. S. A. 60-1507 the movant is required to allege a factual basis in the motion to support his claim for relief. A mere conclusionary contention that counsel misinformed him, for which no evidentiary basis appears in the record, is not a sufficient basis for requiring an evidentiary hearing for post-conviction relief. (Burns v. State, 215 Kan. 497, 524 P. 2d 737.)
The judgment is affirmed.
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The opinion of the court was delivered by
Fromme, J.:
This action is for specific performance of an agreement to convey farm land in Greeley County, Kansas. After a trial to the court it was held no binding agreement had been consummated and specific performance was denied. Plaintiffs have appealed.
The primary question on appeal is whether there is evidence in the record to support the findings and conclusions of the trial court.
On appeal it is not the function of the appellate court to weigh conflicting evidence, pass on the credibility of witnesses or redetermine questions of fact. The reviewing court is concerned only with evidence which supports the trial court’s findings, and not with evidence which might have supported contrary findings. (Parsons Mobile Products, Inc. v. Remmert, 216 Kan. 256, Syl. 1, 531 P. 2d 428; Landrum v. Taylor, 217 Kan. 113, 535 P. 2d 406.) With these principles in mind we turn to the facts which gave rise to the controversy.
Larry and Max Steele own a farm in Greeley County, Kansas, and operate in partnership. Dr. Paul Harrison of Stafford, Kansas, owns other farm land in that same county. Harrison, a non-resident landowner, had been leasing his land to a farm tenant on a crop-share basis. In January, 1973, Larry Steele wrote to Harrison and expressed an interest in Harrison’s land. He advised that the Steeles were interested in trading certain Stanton County land owned by them for the Greeley County land owned by Harrison.
In February, 1973, Harrison replied to Steele’s letter and expressed an interest in trading his land in Greeley County, but he wanted land in either Greeley, Hamilton, Wichita, Kearny, Gray or Ford County, not in Stanton County. Harrison received an immediate reply from Steele advising that the Steele brothers would begin looking for land to purchase which might be suitable for trade.
Early in April, 1973, the parties met in a coffee shop at Tribune, Kansas, to discuss the proposed land transaction. Harrison testified at the trial that he and Larry Steele met at Tribune and discussed trading land. At that time he explained to Steele that he was only interested in a trade because his land in Greeley County had a low tax base and in event of a sale he would incur a heavy tax liability. Harrison suggested that the Steeles work with the Stanley Realty Agency in Syracuse, Kansas, to locate suitable land for trading purposes.
On April 9, following the meeting in Tribune, Steele write a letter to Harrison which in pertinent part reads as follows:
“We would be willing to make a bonafide offer on Sec. 16-17-42 Greeley Co. Kans. of $65,000 providing we would get immediate possession. Of course this is more than the auctions of land almost adjoining the land last spring and summer which were 78.00 & 86.00 in Sec. 8 NW of this section & 1 qtr. % mile east. But as I stated this land adjoins us and we realize that possession is important. I assume the wheat share is 35.
“I have not made further contact with the Stanley Agency at Syracuse as they were not in the office. Will contact you as soon as I find out anything. . . .”
We note that this offer to purchase Harrison’s section of land in Greeley County was conditioned upon Harrison giving the Steeles immediate possession. It also appears that the Steeles would expect to receive the landlord’s one-third share of the wheat crop growing on the land.
On receipt of Steele’s letter Harrison replied:
“Received your letter this morning and I guess I wasn’t definite enough when talking to you. Richard Vester has a lease expiring Aug. 1st, 1973. He has already said he was selling out and wanted the buyer of his equipment, to be able to continue. However I told them when they were here that the land was for sale, and that if it were sold the buyer would take over, the summer fallowed ground immeadiately and the wheat ground after harvest.
“I will sell to you at price of $65,000.00 possession of open ground immeadiately and the wheat ground Aug 1st. 1973, me to retain the land lords interest in growing wheat.
“Please let me know soon as I will want to notify Mr Henry Robertson and His father in law C. P. McKinney.
“If you hear anything more from Stanleys Agency Please let me know.”
As we read this letter it is not an acceptance of the offer contained in Steele’s letter of April 9, but is in effect a counter-offer. The price was to remain the same but Harrison was to retain the landlord’s share of the growing wheat and the wheat ground was not to be delivered to Steele until August 1, 1973. In addition, the last paragraph in the letter seems to indicate a rejection of Steele’s offer for Harrison expressed a continuing interest in the previous negotiations for a trade of this land. “Stanley Agency” was the real estate firm in Syracuse which had been recommended by Harrison to help the Steeles locate suitable land to trade.
On April 12, Larry Steele responded with the following letter.
“Dr. Harrison,
“I received your letter today concerning your land. We would certainly appreciate your acceptance of our offer but we would want to get some income pretty rapidly if we were to pay that amount for the land. Maybe we could work out a deal where we could get some of the income so we wouldn’t have taxes to pay before we realize any income from the land.
“I contacted the Stanley Agency at Syracuse and they have already sold the land in north Hamilton Co. but anticipate some more land to be on the market soon. They are to let me know when they do. I will call you so you can look at it when they do.
“As I stated we would like to get some income.
“I will let you be the judge of what is equitable and it would be alright to go ahead and make a contract for the section. I will enclose a check.”
A check for $1,000 was enclosed with this letter, but we cannot say that this letter constituted an unqualified acceptance of Harrison’s counter-offer. The letter refers to Steele’s previous offer, not to Harrison’s counter-offer. It reaffirms a need for current income from the land to pay taxes, which was not possible under Harrison’s counter-offer, and it again refers to a possible trade of this land if and when the Stanley Agency at Syracuse found land for the Steeles to purchase and trade. If the Steeles considered the letter to be a final acceptance of Harrison’s counter-offer, the reference to a possible trade in the future was entirely superfluous. Harrison would have been bound by the acceptance to sell for cash and would not have the land to trade at some future date.
No written contract of sale was prepared by Harrison. Instead he prepared a written lease on the land for a term of one year, terminating August 1, 1974. The Steeles accepted the written lease which called for one-third of all crops to be delivered to the landlord, Harrison. It further provided: “. . . Tenant agrees to give up possession to the above described land without notice at the expiration of this lease as stipulated above. . . .” The lease was dated April 17, 1973, and thereafter the county agricultural stabilization and conservation service office of Greeley County, pursuant to notice of change of farm operators, listed the Steeles as the operators and Harrison as the owner of this land for the crop year 1974. The notice of change of operator contains a mailing date of December 13,1973.
The farm lease referred to above contained the following paragraph:
“Tenant further agrees that this lease in no way affects the agreement entered into by correspondence and telephone.”
The meaning and purpose of this provision in the lease is obscure, and the parties during the trial ascribed their own meanings to the paragraph. Harrison testified the paragraph referred to negotiations for a trade of the land at some future date if suitable land could be obtained by the Steeles.
After the lease was entered into, Harrison mailed the abstract of title to this land to an abstractor in Tribune with instructions to bring the title up to date and make the abstract available to the Steeles for examination of the title.
In July, Harrison advised Steel that it was apparent they were not going to be able to complete a trade of the land. Harrison returned the $1,000 check to Steele and Harrison asked for return of his abstract of title. Steele did not have it in his possession at the time and apparently promised to give it to Harrison later.
The lease to the Steeles went into effect August 1, 1973, and the land was planted to wheat. Thereafter on December 10, 1973, an attorney for the Steeles prepared a contract for the outright purchase of this land and mailed the contract to Harrison along with a check for down payment in the sum of $1,000.
Three days later on receipt thereof Harrison responded to the attorney as follows:
“What do you think you are doing. I rejected this deal on the 4th, of July 1973. Returning to Larry Steele check which he had sent, just as you have without assurance that we could complete the deal.
“I have witnesses to all of our conversations, previous to any offer on this land and hinging entirely on our, either Mr Steele or myself finding some suitable land that they could buy and make the exchange.
“Larry Steele has repeatedly said he was returning the abstract to this land, that I loaned him, in case we were able to complete a deal that was then pending. If that abstract is not returned to me shortly, they are going to lose there lease on this land which expires Aug. 1st, 74 and you can so inform them.”
Thereafter the relationship between the Steeles and Harrison continued to deteriorate and on January 19, 1974, Harrison notified the Steeles by certified mail that the lease would not be renewed and that they were not to prepare the land for planting the 1975 crop.
On July 19, 1974, Steele notified Harrison as to the location of the landlord’s one-third share of the wheat crop which had been harvested and placed in elevators, totaling 4160 bushels. The Steeles refused to turn over possession of the land to Harrison and they again planted a wheat crop which would be harvested in 1975. The Steeles thereafter filed this action to compel Harrison to convey the property to them. Issues were joined and evidence was presented to the trial court.
The plaintiffs (the Steeles) prosecuted their claim in the trial court on alternative theories. Their first theory was based upon a written contract for the purchase of the land for $65,000 as evidenced by the letters. Their second theory was based upon an oral agreement for the exchange of land which was to be completed at such time as suitable land could be purchased by the Steeles to complete the agreement. We are of the opinion that the trial court’s findings and conclusions are adequately supported by the evidence and dispose of both theories advanced by the appellants.
The trial judge made detailed findings and conclusions. He concluded, “That no contract was entered into between the parties.” He determined that the letters did not evidence a meeting of the minds on essential and material matters necessary to make a binding contract to convey the land. As to the negotiations for trade of this land for other land to be acquired by the Steeles, the judge determined that there was no time set for performance within a reasonable period and that the Steeles were not able to acquire any land for trade within a reasonable time. A reasonable time was determined by the judge to coincide with termination of the one year agricultural lease. In his findings the judge discussed the effects of the statute of frauds (K. S. A. 33-106) which provides no action shall be brought to charge a party upon any contract for the sale of lands, or upon any agreement that is not to be performed within the space of one year unless the agreement or some memorandum thereof shall be in writing and signed by the party to be charged therewith. The trial judge further reasoned that assuming there may have been a meeting of minds on the oral agreement to trade, there was no sufficient performance to take the case out from under the statute of frauds. The granting of possession was under the terms and upon the considerations stated in the farm lease. The check given by the Steeles as a good faith payment was never cashed, it was returned to the Steeles and accepted by them. As to the 1975 wheat crop planted by the Steeles, the trial court found the land had been cultivated and the crop had been planted after notice that the written lease would not be renewed and that no cultivation or planting should be attempted. The Steeles cultivated and planted the land thereafter at their own risk and they were not entitled to the land or the crop. Accordingly the trial court entered judgment for defendant on all issues.
In order for parties to form a binding contract there must be a meeting of the minds on all the essential terms thereof. (Phillips & Easton Supply Co., Inc. v. Eleanor International, Inc., 212 Kan. 730, Syl. 1, 512 P. 2d 379; Weil & Associates v. Urban Renewal Agency, 206 Kan. 405, Syl. 4, 479 P. 2d 875; Topeka Savings Association v. Beck, 199 Kan. 272, Syl. 2, 428 P. 2d 779.) To constitute a meeting of the minds there must be a fair understanding between the parties which normally accompanies mutual consent and the evidence must show with reasonable definiteness that the minds of the parties met upon the same matter and agreed upon the terms of the contract. (See 17 Am. Jur. 2d, Contracts, § 18, 19, pp. 354, 355; 17 C. J. S., Contracts, § 31, p. 635.)
The documents relied upon by appellants do not demonstrate an agreement between the parties to sell and purchase land. In his letter of “acceptance” Harrison did not agree to grant immediate possession nor did he accept the proposal to relinquish the landlord’s share of wheat then growing. These provisions of appellants’ “offer” were essential terms of the offer as demonstrated by Steele’s letter of April 12. In addition the Steeles delivered the landlord’s share of the crop to Harrison under the written lease.
It is fundamental that a communicated offer creates a power to accept the offer that is made, and only that offer. Any expression of assent that changes the terms of the offer in any material respect may be operative as a counter-offer, but it is not an acceptance and constitutes no contract. Unless the original offeror subsequently expresses unconditional assent to the counter-offer there will never be a contract. (Seymour v. Armstrong, 62 Kan. 720, 64 Pac. 612; 1 Corbin on Contracts, § 82, pp. 349-352 [1963].)
In the present case the Steeles did not accept the counter-offer proposed by Harrison. They expressed concern about receiving immediate income from the property and suggested that Harrison make an “equitable” contract. Additional evidence indicating an absence of a contract for sale appears in the record. The subsequent acceptance of a lease on the property and appellants’ continued attempts to secure property which could be traded for the Harrison farm lends further support to the trial court’s findings and conclusions. It cannot be said that the parties manifested mutual consent to terms of a contract for sale.
In an action based on contract, the burden of proof is on the plaintiff to show the existence of the contract alleged in -the petition. (Van Brunt, Executrix v. Jackson, 212 Kan. 621, 512 P. 2d 517; Commercial Credit Corporation v. Harris, 212 Kan. 310, 510 P. 2d 1322.) The existence or non-existence of an agreement or contract is in its very nature a question of fact. (Reznik v. McKee, Trustee, 216 Kan. 659, 534 P. 2d 243.) The question was one for the trial court to resolve and there is sufficient evidence to support a finding that no contract was reached by the parties.
Two procedural matters should be discussed.
The first concerns the award of the 1975 wheat crop to Harrison. Initially this was specified in the record as one of the points relied on in this appeal. The Steeles claimed that either the 1975 wheat crop or the expenses of cultivating and planting the crop should have been recovered by them. This point does not appear in the appellants’ brief and has not been briefed or argued. Points neither briefed nor argued on appeal will be deemed abandoned. See cases collected in Hatcher’s Kansas Digest (Rev. Ed. Perm. Supp.), Vols. 1-3, Appeal and Error, § 184, p. 46.
The second procedural matter concerns permission to amend the answer to raise the affirmative defense, the statute of frauds. According to the date of the order, permission to amend was granted by the trial court ten days before trial began and it is argued the amendment was allowed without sufficient notice. The actual date the order was entered is in dispute but does not need to be resolved for our purposes.
The need for amendment arose in this manner. The petition for specific performance alleged a written contract. After answer was filed the defendant, Harrison, filed a motion for summary judgment which was argued on February 24. During the argument on the motion the plaintiffs for the first time disclosed that they were partially relying upon an oral agreement for the exchange of property. At this time the statute of frauds came into the picture and defendant orally requested permission to file a motion to amend the answer. Permission was granted. A written motion was not filed until April 3, and the order permitting the amendment is dated April 8. Subsequent to the filing of this motion the proceedings before the court, including the argument against the amendment, were transcribed. The date of these proceedings is not set forth in the record. The proceedings appear to have taken place shortly before the trial began, but in any event the trial court stated that the actual argument on the matter was on February 24, at the time the summary judgment was heard. The court further stated that plaintiffs had ample warning that the affirmative defense would be allowed by amendment and this was done before trial.
The amendment was granted by leave of court. K. S. A. 1975 Supp. 60-215 provides after responsive pleading has been filed a party may amend his pleading after first obtaining leave of court or written consent of the adverse party. The statute directs that leave to amend should be freely given by the trial court when justice so requires, and that such amendments should be left within the sound discretion of the trial court. No error will lie from a trial court’s order allowing an amendment to a pleading unless the adverse party can demonstrate prejudice resulting of such a nature as will justify the appellate court in finding the trial court abused its discretion. See Trimble, Administrator v. Coleman Co., Inc., 200 Kan. 350, 358, 437 P. 2d 219, and cases cited therein. In Commercial Credit Corporation v. Harris, supra, (212 Kan. p. 312), it is held there was no abuse of discretion by the trial court or error when an answer was amended by leave of court to raise an affirmative defense on the morning of the trial. The observations in Harris are applicable here and the point raised by appellants is without substance.
Accordingly, the three points briefed and argued on appeal have been disposed of and the judgment is affirmed.
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The opinion of the court was delivered by
Harman, C.:
Charles E. Rives was convicted by a jury of the offense of aggravated robbery. New trial was denied, he was sentenced and now appeals.
The state’s evidence revealed the following. At about 12:20 a. m. on April 28, 1974, appellant and another male held up a convenience mart in Manhattan. At gunpoint the pair took about $75.00 from the store’s cash register. One suspect was apprehended about thirty minutes after the robbery. Appellant was arrested and booked into the Riley county jail on May 10, 1974, where he remained until released on bond June 7, 1974. No gun or currency connected with the crime was ever found and appellant has consistently denied involvement in the holdup. At trial his defense was an alibi.
The evidence against appellant included his courtroom identification by two store employees as the wielder of the gun in the holdup, plus certain documentary evidence. The sufficiency of the evidence to sustain the conviction is not challenged but appellant does specify certain trial errors.
One complaint involved a handwritten note, state’s exhibit 1, purportedly written by appellant while in the county jail. The note read as follows:
“1/7 ask anybody for (Burt.)
“Then tell him that I’m in for armed robbery, tell him that my lawyer will come and ask him was I over there on the 28th of April at 6 till 1.00. tell Burt to say yes & the same time 6 til 1:00. tell him that will help me get out of jail, and that I will take good care of him when I get out.
“C. Rives”
On May 29, 1974, while appellant was still in the Riley county jail, a jail employee brought the note to the jailer. The jailer had no knowledge as to how the employee acquired the note except that told him by the latter, which evidence was excluded as hearsay. The jail employee did not testify at the trial because he had left Kansas and could not be located. There was no other prisoner named Rives in the jail and the jailer, who testified, could not recall any other person in the jail by the name of Rives during the eight and one-half years he had been engaged in law enforcement in Riley county. The jailer initialed the note and gave it to the county attorney. Later the note was taken to a document examiner for •the Kansas bureau of investigation who compared the writing on it with handwriting exemplars secured from appellant pursuant to court order (state’s exhibits 3 and 4). According to this expert the writing on 'the three exhibits was done by the same person.
Additionally, a fingerprint expert for the KBI discovered a latent fingerprint on the note. He testified it was identical to thev right thumb print of appellant as shown on a card received May 17, 1974, by the KBI from the Riley county police department. Along with this card was a jail information card made by the Riley county police department at the time appellant was booked into the county jail on May 10, 1974.
Appellant contends the court erred in admitting into evidence the note (exhibit 1), the booking card (exhibit 2), and the fingerprint card (exhibit 6). He says none was sufficiently identified or authenticated and, additionally, an adequate chain of custody was not shown as to the note:
A few general rules may be stated. The admissibility of physical evidence is within the sound discretion of the trial court, to be determined on the basis of relevance of the evidence and its connection with the accused and the crime charged (State v. Donahue, 218 Kan. 351, 543 P. 2d 962).
A crucial question in determining admissibility of physical evidence is whether the item has been materially altered or tampered with during the time it was in police custody. This rule was stated in State v. Tillman, 208 Kan. 954, 494 P. 2d 1178, as follows:
“. • . [A] party who offers an object into evidence must show that it is reasonably certain that there have been no material alterations of the object since it was first taken into custody. It is not necessary, however, that the object offered into evidence should have been kept continuously under lock- and-key or continuously sealed up. The preliminary proof of the identity of the object and that the same has not been improperly tampered with, is first to be determined by the trial court. It is not necessary that all possibility of its being tampered with should be excluded. [Citations.] The ultimate question of the sufficiency of the proof is, of course, for the jury to determine. . . .” (pp. 958-959.)
Accord: State v. Osbey, 213 Kan. 564, 517 P. 2d 141; State v. Champ, 218 Kan. 389, 543 P. 2d 893.
K. S. A. 60-464 specifically requires authentication of a writing before it may be received in evidence, although the means may be any provided by law.
In State v. Milum, 202 Kan. 196, 447 P. 2d 801, this court was similarly concerned with the admissibility of an incriminating note purportedly written by a defendant while in jail. We held that authenticity or genuineness of a writing may be proved not only by establishing the genuineness of the writer’s signature, or identity of the handwriting contained in the instrument, but also, under proper circumstances, by indirect or circumstantial evidence without resort to proof of handwriting. We further stated that proof of the genuineness of a letter may be established when the contents themselves reveal knowledge peculiarly referable to a certain person or the contents are of such nature that the letter could not have passed between persons other than the purported writer and the person to whom it was delivered; for that matter, any relevant writing may be admitted when, from its contents or other circumstances in evidence, it is reasonably inferable that the author is the person sought to be charged; and whether or not the authenticity of a writing is sufficiently established to render it admissible in evidence is a matter largely within the discretion of the trial court, (p. 198.)
In the case at bar custody of the note, without material alteration or tampering, was shown from the time it came into the hands of the jailer from the jail employee until it came back to the identification witnesses- in court. The complaint that it was not connected with appellant has no merit for several reasons. It was shown to be in his handwriting; it bore his fingerprint; and, as in Milum, it was of such an intrinsic nature as to be peculiarly the handiwork of appellant — an obvious attempt to procure a perjured alibi. We are putting it mildly in saying that from these circumstances it can reasonably be inferred that appellant authored the note. Hence, there was sufficient foundation for its admission into evidence.
Appellant’s complaint that there was insufficient foundation for the admission of the booking card and the fingerprint card is also meritless. The record on appeal discloses no objection to them, lacking which, under K. S. A. 60-404, the point is not entitled to consideration. Had such an objection been made it would have been to no avail. The records were identified by an agent of the KBI as items received by that office from the Riley county police department. Such records are required by law to be made by sheriffs and police departments upon the arrest of a person charged with a felony, and to be forwarded by them to the KBI (K. S. A. 21-2501), and presumably this is how the records carné into the hands of the KBI. Hence these records qualified as business entries under K. S. A. 60-460 (m).
Appellant further complains the trial court erred in permitting the state at the close of its case to amend the information to conform to the evidence. The change made was to charge that appellant took the purloined property “from the presence of” a named individual rather than “from the person of” the same individual as initially alleged. K. S. A. 22-3201 (4) provides:
"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.”
The amendment was made in view of the fact the evidence revealed the money was taken from the store’s cash register rather than from the person of the cashier. K. S. A. 21-3426 defines robbery as the taking of property “from the person or presence of another” by threat of bodily harm, etc. The two concepts of person and presence, for present purposes, are so similar that amending the information did not change the nature of the crime alleged nor did it charge appellant with any additional crime. It was simply in accord with the evidence adduced (see State v. Lamb, 215 Kan. 795, 798, 530 P. 2d 20, 23). Appellant says the distinction made in the information was a crucial one which he relied upon in cross-examination of the state’s witnesses. The bare assertion is not expanded as to how this could be. No such contention was advanced at trial when appellant objected to the amendment and it has a hollow ring in view of the fact appellant’s defense was that of alibi. Appellant could in no way have been prejudiced by the amendment.
Appellant’s final contention, that the trial court unduly limited the testimony of one of his alibi witnesses, was abandoned by counsel at oral argument. Were we to consider the point, we could not declare error. The trial court did initially impose the limitation complained of, but it was ignored later and not enforced and appellant was permitted to examine the witness beyond the restriction prescribed. Judgment affirmed.
APPROVED BY THE COURT.
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The opinion of the court was delivered by
Owsley, J.:
This is an action brought by plaintiff-appellant, Arthur N. Jordan, to recover damages from defendant-appellee, Doonan Truck & Equipment, Inc., for breach of oral express warranties and representations allegedly made by appellee during negotiations prior to the purchase of a truck. Appellant contends the trial court erred by refusing to instruct the jury that express warranties could not be excluded or disclaimed.
On or about February 10, 1972, appellant and his brother, Charles Jordan, went to appellee’s place of business in Great Bend, Kansas, to inquire about the purchase of a truck. The substance of the negotiations is subject to considerable dispute. According to testimony of appellant and his brother, when discussing the purchase of a 1962 Peterbilt truck, appellee’s employees repre sented' that the engine would run for three or four months without having any major repair work done, that the truck was basically in sound condition, and that the cab legs and kingpins were in good shape.
The employees of appellee denied making any such representations as to the condition of the truck, other than stating that it was generally sound. Jack Goldman, a used truck salesman for appellee, testified that the truck he showed appellant had been placed on the back lot since it still needed repair work. He testified that after showing appellant the Peterbilt truck they dickered on the price. He claimed he told appellant the price of the truck was $5,500 and that figure included additional work to get it ready for sale. Appellant told Goldman he would do the work himself and he would give $3,000 for it without any guarantee or warranties. When the deal was approved by appellee, appellant read and signed a “Purchaser’s Retail Order Form.” The contract listed the total sales price as $3,000 and in fine print on the lower corner of the document stated that it was “the complete and exclusive statement of the terms of the agreement relating to the subject matters thereby.” Handwritten on the face of the form was the additional disclaimer that the used truck was “Sold as is, where is, no warranty.” Appellant testified that he read the disclaimer and knew what it meant, but he still assumed the earlier representations were true.
Immediately after purchasing the truck appellant was forced to spend considerable money for repairs. The kingpins, air cleaner, and front wheel bearings had to be replaced. The right cab leg had broken off, the engine block had cracks in it, and the engine had to be replaced. In all, appellant claims he spent $7,246.08 to place the truck in working condition.
Suit was subsequently brought by appellant for the cost of repairs and loss of the use of the truck, as well as punitive damages. The jury returned a verdict for appellee and a timely appeal was filed to this court.
Appellant argues the trial court erred in refusing to instruct the jury that oral express warranties could not be disclaimed. Appellant’s petition alleged appellee made false oral representations and warranties as to the condition of the truck, which he relied upon in entering into the written contract. Appellee answered by denying any such warranties were made and setting up the defense of warranty disclaimers in the purchase order contract. At trial, appellee objected to the introduction of any evidence of the alleged oral warranties on the ground evidence of prior oral agreements was inadmissible under the parol evidence rule, K. S. A. 84-2-202. The trial court, overruled the objection and permitted testimony by appellant and his brother as to the substance of the representations made by appellee prior to entering into the contract. Throughout the trial appellee emphasized its position that regardless of any statements made by its employees, the written contract controlled and the truck was sold “as is, where is, no warranty.”
Appellant requested the court to instruct the jury to “deny effect to disclaimer language which is inconsistent with an express warranty.” It is the court’s refusal to so instruct which forms the basis of appellant’s argument on appeal.
It is appellant’s position that under K. S. A. 84-2-316 (1) oral express warranties by the seller cannot be excluded or modified by disclaimer clauses contained in a written contract. Because appellee relied principally upon the disclaimer language found in the “Purchaser’s Retail Order Form,” appellant contends the jury should have been instructed to disregard such language. Had this been done, appellant believes the jury would have awarded damages to him based on the breach of the oral express warranties.
Appellant’s entire case rests upon the oral representations allegedly made by various employees of appellee prior to the signing of the contract. Rather than responding to appellant’s argument on the effectiveness of the disclaimer language, appellee argues it is unnecessary to reach that question because the evidence of the oral warranties was inadmissible in the first place. If the evidence of the oral warranties was inadmissible, as appellee contends, then appellant’s cause of action for breach of warranty must necessarily fail.
The Uniform Commercial Code provision controlling the exclusion or modification of warranties is K. S. A. 84-2-316. Subsection (1) thereof states:
“Words or conduct relevant to the creation of an express warranty and words or conduct tending to negate or limit warranty _ shall be construed wherever reasonable as consistent with each other; but subject to the provisions of this article on parol or extrinsic evidence (section 84-2-202) negation or limitation is inoperative to the extent that such construction is unreasonable.”
Subsection (1) is expressly made subject to the provisions of the parol evidence rule found in 84-2-202, which states:
“Terms with respect to which the confirmatory memoranda of the parties agree or which are otherwise set forth in a writing intended by the parties as a final expression of their agreement with respect to such terms as are included therein may not be contradicted by evidence of any prior agreement or of a contemporaneous oral agreement but may be explained or supplemented.
“(a) by course of dealing or usage of trade (section 84-1-205) or by course of performance (section 84-2-208); and
“(b) by evidence of consistent additional terms unless the court finds the writing to have been intended also as a complete and exclusive statement of the terms of the agreement.”
These two sections of the Code, 2-202 and 2-316 (1), create a conflict as to whether parol evidence is admissible to establish the existence of oral express warranties which are inconsistent with disclaimers in a written contract. On the one hand, 2-316 (1) directs that when the oral warranty and the written disclaimer cannot reasonably be construed as consistent with each other, the disclaimer is ineffective and the warranty prevails. This result, however, is made subject to the parol evidence rule under 2-202. If the writing is intended to give final expression of the parties’ agreement, then evidence of prior oral express warranties is inadmissible. Several jurisdictions have held that 2-202 is not a bar to the admission of oral express warranties because the written contract was not intended as a “final expression” of the parties’ agreement. (Zwierzycki v. Owens, 499 P. 2d 996 [Wyo. 1972]; Hull-Dobbs, Inc. v. Mallicoat, 57 Tenn. App. 100, 415 S. W. 2d 344 [1966]; Discount Center v. Sawyer, 27 N. C. App. 528, 219 S. E. 2d 532 [1975].) In other cases the courts have refused to permit the introduction of similar parol evidence on the ground that 2-202 prevails over the disclaimer provisions of 2-316 (1). (Green Chev. Co. v. Kemp, 241 Ark. 62, 406 S. W. 2d 142 [1966]; Avery v. Aladdin Products Division, National Service Industries, Inc., 128 Ga. App. 266, 196 S. E. 2d 357 [1973]; Tracy v. Vinton Motors, Inc., 130 Vt. 512, 296 A. 2d 269 [1972]; Investors Premium Corp. v. Burroughs Corp., 389 F. Supp. 39 [D. C. S. C. 1974].)
In accordance with the oft-stated rule of statutory construction it is the duty of courts to ascertain the intent of the legislature from the subject matter of the statute and, so far as practicable, reconcile various conflicting provisions of an act in order to make them consistent, harmonious, and sensible. (Fleming Company v. McDonald, 212 Kan. 11, 509 P. 2d 1162; Scogin v. Nugen, 204 Kan. 568, 464 P. 2d 166; Jennings v. Jennings, 211 Kan. 515, 507 P. 2d 241; Great Lakes Pipe Line Co. v. Wetschensky, 193 Kan. 706, 396 P. 2d 295.) In an attempt to give effect to both of the statutes involved and arrive at a reasonable construction, we should look to the policy behind the enactment of these statutes.
The Kansas Comment to 2-316 explains that it is the policy of the Code to deny effect to disclaimer language which is inconsistent with an express warranty. The Official UCC Comment makes clear that this section was intended to cover those frequent situations where the sales contract purports to exclude “all warranties, express or implied.” “It seeks to protect a buyer from unexpected and unbargained language of disclaimer by denying effect to such language when inconsistent with language of express warranty . .
From the Comments accompanying 2-202 and case law construing that section, it is clear the Code is not meant to change the local parol evidence rule. 2-202 does not preclude the admission of parol evidence if the written agreement was not intended by the parties as a final expression of their agreement. It has also been held in many jurisdictions that, although not referred to in the statute, fraud is an exception to the parol evidence rule. (Associated Hardware Supply Co. v. Big Wheel Distrib. Co., 355 F. 2d 114 [3d Cir. 1965], 17 A. L. R. 3d 998; Ed Fine Oldsmobile, Inc. v. Knisley, 319 A. 2d 33 [Del. Super. 1974].)
The purpose of the Code provisions with respect to warranty disclaimers and parol evidence is to protect the buyer from “unexpected and unbargained” language of disclaimer, while at the same time providing the seller with a defense against false allegations of sales representations.
Mindful of the policy behind the statutes we conclude that under the facts and circumstances of the instant case the trial court erred in admitting the parol evidence of the alleged express warranties. Although appellant’s testimony, if believed, would be sufficient to create express warranties inconsistent with the disclaimer in the purchase order contract, the parol evidence rule operates to exclude the testimony relied on to prove the alleged representations. We are satisfied the purchase order contract was intended by the parties as a final expression of their agreement. Appellant has failed to adequately allege or prove such fraud as would bar the application of the parol evidence rule. It is undisputed that appellant read the contract, saw the handwritten disclaimer, understood what it meant, and signed the contract. This is clearly not the situation where a purchaser is surprised by “unexpected and unbargained” language of a disclaimer. We believe that appellant’s right to rely on appellee’s representations in the face of the unequivocal and conspicuous “as is” disclaimer is unsupported. Accordingly, we hold that under 2-202 the testimony as to the alleged representations made by appellee’s employees was inadmissible.
This being true, appellant’s cause of action for breach of express warranty cannot stand and it is immaterial whether the trial court instructed the jury as to the effect of the disclaimer. Having reached the right decision, albeit for the wrong reason, the judgment of the trial court is affirmed. (George v. Ayesh, 179 Kan. 324, 295 P. 2d 660; Henks v. Panning, 175 Kan. 424, 264 P. 2d 483.)
Affirmed.
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The opinion of the court was delivered by
Foth, C.:
These two consolidated appeals concern an executors right to petition the probate court for instructions as to its duties, and its right to rely on those instructions when given. The underlying question is whether an executor who is authorized by the probate court to bring suit on a claim alleged to be due the estate can later be denied an allowance for the reasonable expenses of conducting such litigation.
In No. 48,058, the appellee, The First National Rank in Wichita, sought instructions from the probate court as to what posture it should assume in a suit in the United States District Court in which it, as executor and testamentary trustee, was a named defendant. The instructions given (to be discussed later) were interpreted by the bank to require it to file a cross-claim on behalf of the estate, seeking to recover something over $300,000. An appeal from the order giving instructions was taken to the district court by the appellants, who each have an interest in the residuary estate. From an order there, essentially confirming the probate court’s order, the first appeal was taken to this court. In No. 48,067, after a federal jury rendered a verdict against it, the appellee bank sought further instructions as to its course of action — i.e., it wanted to know whether to appeal. The affirmative instructions given on this question were likewise appealed to the district court, and from there to this court, by the same appellants.
These are the third and fourth appeals to reach this court involving the estate of the late Marcellus M. Murdock of Wichita, who died on March 10,1970. The first was In re Estate of Murdock, 213 Kan. 837, 519 P. 2d 108 (Murdock I) and the second Jennings v. Murdock, 220 Kan. 182, 553 P. 2d 846 (No. 47,888, decided July 16, 1976, herein Murdock II). A detailed background of the Murdock family and its internal struggles may be found in those cases, and is summarized here only insofar as necessary to explain how this case arose.
The decedent, Marcellus Murdock, during his lifetime was the dominant force behind the Wichita Eagle and Beacon, that city’s only daily newspaper. He also owned one-third of the paper’s stock, and thus held the balance of power between blocks held by his collateral relatives. His great-nephew Harry B. “Britt” Brown, Jr., held a third on one side, while on the other side his niece Katherine Henderson and his great-nephew Victor Delano held a third between them. During his lifetime Marcellus placed half of his stock in an inter vivos trust. Upon his death the trust was to be divided into five equal parts, one each for his widow and for each of his four children by a prior marriage (or the offspring of any predeceased child). The beneficiaries were to receive the income, and two years after his death the principal. The other half of Marcellus’ stock became part of his estate. Under his will he left his residuary estate under the same trust provisions, except that the trusts were to last fifteen years from his death rather than two as under the inter vivos trust. The appellee bank was named trustee under the inter vivos trust and executor-trustee under the will.
In Murdock I Marcellus’ widow Paula claimed one-half of the estate as a surviving spouse who had not consented to the will. This court rejected her claim and held that she was bound by an ante-nuptial agreement giving her a one-fifth or “child’s” share of the estate. Supporting Paula’s claim in that case were Marcellus’ daughter Janet M. Jennings and two grandchildren, David Colwell and Vici Colwell McComb, children of a predeceased daughter. Paula, Janet, David and Vici are the appellants here.
In Murdock II the same four individuals sought judicial directions to the bank, as executor and as trustee under both the will and the inter vivos trust, requiring it to vote all Eagle stock held by it for their benefit for their nominees for directors of the publishing company. The trial court required the bank to do so unless it could show damage to the trusts would result, thus granting in essence the relief sought. On appeal this court held that this was an unjustified judicial interference with the discretion granted to the trustee under both trust instruments.
In the meantime, however, the result of the trial court’s order was to give to the four appellants voting control of a majority of Marcellus’ one-third interest in the publishing company. They combined their votes with the one-third owned by Britt Brown to secure effective control of the newspaper. In both prior suits, as in this one, they were represented by Britt Brown’s attorney, Paul R. Kitch. (Although Paula Murdock was and is separately represented, Mr. Kitch has acted as lead counsel throughout.)
Once in control of the newspaper the appellants and Brown proceeded to sell it, through the brokerage efforts of Mr. Kitch. A condition precedent to any sales negotiations was that the purchaser would pay to Mr. Kitch a “finder’s fee” of 3% of the gross sales price. In addition, Brown was to receive a ten year employment contract at a substantial increase in salary.
On February 28, 1973, the Wichita Beacon carried a front page story that controlling interest in the paper had been sold to a newspaper chain, Ridder Publications, Inc. Later that day Mr. Kitch delivered a copy of the sales contract to the executor bank. It showed a sales price of $700 per share (subject to certain contingencies) or a total of $42,000,000. Mr. Kitch’s fee, to be paid by the purchaser Ridder, was to be $20.25 per share or, if all shares were acquired, $1,215,000. The selling shareholders were to produce an employment contract between the Eagle and Britt Brown guaranteeing him $65,000 per year for ten years, or $650,000. His then current salary was $40,000 per year.
Stockholders who had not already signed were given ten days, or until March 10, 1973, to accept or reject the Ridder contract. The bank, still holding in the estate 10,000 shares of Eagle stock (a one-sixth interest), promptly polled the estate beneficiaries. All agreed to the sale, and with prior probate court approval the bank accepted the Ridder contract on March 8,1973.
On March 9, 1973, Victor Delano, likewise the owner of 10,000 shares, instituted the federal litigation in which he named as defendants Ridder, the Eagle, and each of the Eagle’s officers, directors and stockholders. As a stockholder, the bank was a named defendant. As officers and directors Britt Brown and Paul Kitch were also named as defendants.
Delano’s suit basically consisted of two claims. First, he wanted to restrain and enjoin the sale. He claimed a preemptive right to purchase family shares under the articles of incorporation, and also that the personal benefit being reaped by Brown and Kitch violated their fiduciary duties to the stockholders — Brown as presi dent and director, Kitch as director and general counsel (he was also assistant secretary). On these grounds he asked that the sale be enjoined, or alternatively that he recover damages in the amount of $20,000,000 from all who had any part in the proposed sale, including the bank as executor.
Secondly, Delano claimed that Kitch’s fee and the fruits of Brown’s proposed employment contract were, in effect, part of the sales price Ridder was willing to pay for the paper. Kitch and Brown, he alleged, could not personally retain any such part of the sales price because of their fiduciary positions, and should be required to account to the corporation or its shareholders for the fruits of their respective contracts.
It was at this point that the bank first sought instructions from the probate court. It recited in its petition the facts surrounding the impending sale, attached a copy of Delano’s federal court complaint, and asked for instructions “as to the position it, as Executor herein, should take in respect to each and every issue in the above-mentioned lawsuit.”
The probate court, after a hearing, issued the following instructions:
“1. An executor has the duty and is under a long-established and time-honored obligation to collect, amass and conserve the assets of an estate.
“2. The Executor herein has competent counsel and is entitled to rely on the advise [sic] and opinion of its counsel.
“3. The Executor shall defend the estate against any demand for money judgment against the estate in said Federal Court action.
“4. The Executor shall protect and preserve the validity of and enforce the agreement between Ridder Publications, Inc. and shareholders of Wichita Eagle and Beacon Publishing Company, Inc., dated February 28, 1973, which agreement is the subject of the Order of this Court of March 8, 1973.
“5. The Executor shall take action to bring into the estate whatever share of the sums payable to Paul R. Kitch and Harry B. Brown, Jr., under said agreement to which the estate is legally entitled, provided that such action shall be consistent with the instructions of the Court in paragraph 4 above and shall not jeopardize the validity and enforceability of the aforesaid Agreement of Sale approved by the Court on March 8, 1973 insofar as it involves the actual sale of the stock to Ridder Publications, Inc.
“6. In all of the foregoing matters, the Executor shall not assume a passive posture, but if affirmative action in said Federal Court action becomes advisable, in the opinion of its counsel, it shall take such affirmative action in addition to any defensive action that may be indicated to carry out the foregoing instructions.
“7. This Court has no jurisdiction to determine the issues in the aforesaid Federal Court action, and the Executor should look to its counsel for advice in the manner and means of carrying out the instructions of this Court contained in this Order.”
The executor thereupon filed an answer and cross-claim in the federal action. In its answer it first asserted various defenses to Delano’s claim against it for damages (per instruction No. 3), and also, to ‘protect and preserve the validity” of the sales contract (per instruction No. 4), it opposed Delano’s prayer for injunctive relief. The executor’s cross-claim was against Kitch and Brown, asserting on behalf of the estate a right to a pro rata share of Kitch’s finder’s fee and Brown’s employment contract. This was in accordance with instruction No. 5, requiring it to “take action to bring into the estate” the estate’s rightful share of those contracts, and with No. 6, that “the Executor shall not assume a passive posture,” but “shall take such affirmative action” as counsel should advise in order to carry out the court’s instructions.
The filing of this pleading in federal court evoked two responses. The first was a letter from one of Mr. Kitch’s law partners to the bank, threatening suit by Kitch and Brown if the cross-claim was not withdrawn. The second was a letter from Brown, similarly threatening suit against the bank and also against its individual officers. On March 30, 1973, the bank returned to the probate court seeking supplemental instructions in view of these two letters. On April 5, 1973, after a further hearing, the probate court reaffirmed its instructions of March 23rd.
On April 25, 1973, Paula, Janet, David and Vici appealed to the district court from the order giving instructions, but the matter was not decided there until January 17, 1974.
In the meantime, the federal action was tried on the issue of Delano’s request to enjoin the sale. The federal trial court ruled against Delano on his preemptive right of purchase, and found that the contract of sale to Ridder was not vitiated by any breach of a fiduciary relationship by Kitch and Brown. It did not, as we read its findings, determine whether or not there had been any such breach.
This decision was promptly appealed to the United States Court of Appeals for the Tenth Circuit. That court temporarily restrained the stockholders’ meeting scheduled for April 30, 1973, where .it was proposed to eliminate the preemptive rights provision from the Eagle’s charter. On April 27, 1973, after hearing, that court dissolved its restraining order and thus permitted the sale to Ridder to be completed. One circuit judge concurred with this disposition, finding the equities to be against Delano. He, however, thought that on the closing of the sale Kitch’s fee should be paid into court to await “the final determination of the validity of this payment to Kitch and the retainer to Brown as well.”
Some eight and one-half months later, on January 17, 1974, the trial court here ruled on the appeal from the probate court’s instructions of March 23, 1973, finding:
“One of two matters under consideration by the Court is whether or not the Executor can proceed with a pending action in the United States District Court. After examining the files, considering the evidence and hearing the argument of counsel, the Court does find that the Executor has been advised by its attorneys that it should proceed to amass the assets of the estate. It is the Executor’s duty to proceed according to law and to act with the advice of counsel and the Court should not place its judgment prior to a presentation of all evidence. The Executor is therefore acting properly insofar as its stated intentions are concerned and it would be an abuse of discretion for this Court to withdraw judicial proceedings or attempt to halt judicial proceedings without a full hearing on all of the evidence the Executor desires to produce. The ultimate outcome of the action of the Executor may or may not be successful, but that conclusion can only be reached after a full hearing. The Executor is therefore permitted to proceed with litigation in accordance with the instructions of its counsel.”
The first appeal (No. 48,058) is from that order.
Thereafter the bank pursued its cross-claim in federal court. Whereas in the matter of the injunction it had been allied with Kitch and Brown (and Mr. Kitch’s clients) in opposing Delano, it now became allied with Delano in seeking to recover a share of the fees and compensation paid to Kitch and Brown. Victoria Bloom (a daughter of Marcellus, a stockholder, and a beneficiary under the will) joined the suit seeking similar relief. The case was tried to a jury, which returned a verdict in favor of the defendants Kitch and Brown on August 22, 1974.
After post-trial proceedings in the federal district court the executor, on December 3, 1974, petitioned the probate court for instructions on whether to appeal the adverse federal judgment. At the hearing on the petition it appeared that both Victor Delano, the original plaintiff, and Victoria Bloom had already appealed. The question was whether the executor should join them. The probate judge expressed the view:
“. . . I’m of the opinion that when you were authorized to bring this action to begin with — or to join in the action to begin with, it carried the full authority to go as far in that court — in any of the courts as your attorneys so advised you. And that at a point where your attorneys advised you that you should not take it further, that the — you probably should stop. And I'm still of that same opinion.”
After polling the executor s three attorneys and finding that each was of the opinion that an appeal was warranted, the court found:
“So it’s the order of this court that they be authorized to carry the appeal, to the extent of Mr. Brown and Mr. Kitch’s finder’s fee, but not as to that injunctive action against the sale of the newspaper, if that has been appealed.”
This order was also appealed to the district court. That court concluded:
“Well, as I had stated previously when this matter was before the Court, insofar as the trial in the United States District Court was concerned the Court is not going to substitute its determination for that of courts in the Federal system; nor is the Court going to take the time to go over the voluminous issues that are involved in litigation.
“But, at least to this point, there certainly has been no finding that counsel for the executor are incompetent; and therefore must enjoy the presumption of competency. And if it is the advice of counsel that the executor proceed with litigation, then it would be impertinent and improper for this Court to interfere with those proceedings. And as they were allowed in the first instance or at least as the executor was allowed to follow the advice of counsel, it would be even more absurd at this point to say that the executor should not follow the advice of counsel in regard to carrying out all necessary and proper means in the Federal District Court, and the executor may proceed as advised by counsel.”
The second appeal to this court (No. 48,067) was taken by Mr. Kitch’s clients from this order.
In the consolidated appeals appellants argue three points in their brief:
“I. The District Court Did Not Issue Any Instructions to the Bank Concerning the Merits of Its Claim Against Kitch and Brown.
“II. The Bank Is Not Entitled to Rely Upon the Orders Issued by the Trial Court to Justify Any Expenses, Including Attorney Fees, Which it May Hereafter Attempt to Assess Against the Appellants’ Trusts or Paula Murdock’s Distributive Share.
“III. The Bank Should Have Been Instructed to Follow the Separate Directions of Each Beneficiary and Paula Murdock As to Whether to Sue Kitch and Brown for the Benefit of Their Respective Trust Estates or (in the Case of Paula) Her Distributive Share.”
From the points presented it becomes clear that this dispute centers on whether the bank’s expenses in carrying on the federal litigation are to be chargeable to the estate (including appellants’ interests), or whether the bank was required to carry on that litigation at its own risk despite the instructions given.
Appellant’s first two points, it will be observed, assert no error committed by the trial court. They come down to this: The state courts could not conclusively determine the merits of the federal litigation; by “authorizing” the executor to proceed the district court did no more than refuse to enjoin it from acting on the advice of counsel. Therefore, they argue, if counsel’s advice turns out to be wrong and the bank ultimately loses the federal suit, its right to be reimbursed for its expenses in that suit will still be an open question.
We think this argument misconceives the effect of the trial court’s order. It was to avoid just that sort of situation that the executor petitioned for instructions in the first place — it did not want to act at its peril and have its actions judged only in the light of hindsight.
The jurisdiction of the probate court to instruct an executor or testamentary trustee as to its duties is established by K. S. A. (now 1975 Supp.) 59-301 (3) and (8). Such jurisdiction extends to the “power and authority to direct the executor to institute an action for the purpose of recovering assets belonging to the estate.” (In re Estate of Manweiler, 185 Kan. 343, 349, 342 P. 2d 730.) See, also, In re Estate of Slaven, 177 Kan. 185, 277 P. 2d 580; Lanning v. Goldsberry, 171 Kan. 292, 232 P. 2d 611; Collins v. Richardson, 171 Kan. 152, 230 P. 2d 1018.
Among the primary duties of an executor is to marshal the assets of the decedent. K. S. A. (now 1975 Supp.) 59-1401. As the foregoing cases and a host of others illustrate, if necessary the executor may bring suit to accomplish this purpose. It may also apply to the probate court for authority before doing so. For example, in Lanning v. Goldsberry, supra, it was held that 59-1401 authorized an administrator to bring an action in district court to recover land, where title stood in another but there was evidence that it belonged to the decedent. It was also held, however, that “liln such a situation it is appropriate for the administrator, before bringing the action, to advise the probate court of the situation and to procure from the court an order directing or authorizing him to bring the action, since under G. S. 1949, 59-301, the probate court has authority to direct and control the official acts of the administrator.” (Syl.2.)
Going to the core issue, i. e., the executor’s attorney fees for the federal litigation, we said in Murdock I, Syl. 10:
“An executor has a duty to collect and preserve the assets of a decedent’s estate and in so doing he may employ counsel to assist him. The necessity for the particular legal services and the reasonableness of the amount of compensation to be paid out of the estate are essentially questions of fact for the tribunal authorized to order their allowance.”
We find the general rule stated in Medill v. McIntire, 136 Kan. 594, 597, 16 P. 2d 952:
“Subject to the general requirements of good faith and reasonable prudence, an executor or administrator is entitled to employ and pay an attorney for advice in reference to the management of the estate, the performance of legal services which the representative cannot himself perform, and the prosecution or defense of actions or suits on behalf of or against the estate, and is entitled to credit in his account or indemnity from, the estate for the reasonable charges of counsel and the costs and other expenses of litigation. It is not necessary to entitle the representative to this allowance that he should have been successful in the litigation which he undertook, but he is entitled thereto regardless of whether he succeeds or fails, provided the litigation relates to property of, or claims in favor of or against, the estate, was undertaken and conducted in good faith, and with reasonable prudence, for the benefit of the estate, and was reasonably necessary, either because the rights concerned were complicated and conflicting, or because the questions involved in tire dispute were such that there might reasonably be an honest and sincere difference of opinion as to the proper solution thereof.” (Quoting 24 C. J. 97. See also, 33 C. J. S., Executors and Administrators, § 223; K. S. A. 59-1717.)
In this case the executor sought determinations in advance that the federal suit and the appeal to the Tenth Circuit were, in the language of Medill v. McIntire, supra, brought “in good faith, and with reasonable prudence, for the benefit of the estate, and . . . reasonably necessary.” We take the orders appealed from to hold just that.
True, the district court orders were not worded in the unequivocal language of the probate court instructions of March 23, 1973. But if the district court had found bad faith, or the negative of any one of the other elements listed, it surely would not have authorized the executor to proceed. Or if it had thought the petition for instructions improper or premature, it could have declined to issue any instructions at all. Instead, the court found in each instance that the executor had competent counsel and, in determining the proper steps to be taken to amass the assets of the estate, it was entitled to rely on counsel’s advice — knowing in each case what that advice was.
It is also true, as appellants assert, that in a sense the courts below expressed no opinion on the merits of the federal litigation. That is to say, neither the probate nor the district judge felt called upon to decide whether Kitch or Brown should be called upon to disgorge any profits — that was an issue within the exclusive jurisdiction of the federal courts. But such a determination was irrelevant to the issues before the state courts. What the courts below were called upon to decide was whether the claim against Kitch and Brown in the federal case was worth pursuing on behalf of the estate. Evidence was presented on this issue (including expert legal testimony) and the suit and appeal were authorized.
As previously noted, in their first two points appellants do not argue that the instructions to the executor were erroneous, but only that they should be given no effect in the future. We disagree. Judicial authority to direct a fiduciary in the conduct of his duties is conferred by statute. When that authority is exercised the resulting decree carries the same weight as any other judicial act. Where the court authorizes an executor to institute an action, the authorization must carry with it a finding that the suit is in good faith, prudent, for the benefit of the estate, and reasonably necessary. The court is authorized to give instructions, and the fiduciary is entitled to act upon them. Otherwise the court’s right to control would be meaningless.
Appellant’s third point — their only claim of error — is that the executor should not have been permitted to pursue the claim against Kitch and Brown over their objection. Their claim to the right to impose their wishes on the bank as executor-trustee was largely disposed of in Murdock II. There this court held that the terms of the will, and especially the spendthrift trust provisions, vested discretion in the administration of the trust in the fiduciary, and not in the beneficiaries.
We also pointed out the bank’s responsibility to contingent beneficiaries. Janet, David and Vici contend that they, as income beneficiaries, can release the bank from any claims by contingent remaindermen. Janet bases her authority on a power of appointment given to her under the will. David and Vici base theirs on the fact that the remaindermen of their trusts would in all probability be their children. The only authority cited for this proposition is Restatement of Trusts, 2d, §216 (h), which says that a beneficiary with a general power of appointment may “consent to a breach of trust.” While this might cover Janet’s situation, it has no applicability to that of David and Vici. But more importantly, we think it would be incongruous with all existing law relating to a fiduciary’s duties to say that, because he can be released from personal liability, a fiduciary must breach his trust on demand
Paula’s claimed right to demand that the executor withdraw its suit is based on the theory that she was at some time the owner of specified shares of Eagle stock, or was at least entitled to their proceeds. This theory misconceives her status. Murdock I established her right to one-fifth of the residuary estate, based on her antenuptial contract with the decedent. She was thus a creditor of the estate, even though the value of her claim was to be determined as if she had been a residuary legatee. As a general creditor she had no interest in any particular assets of the estate, and certainly had no- right to tell the executor whether it should sue on or abandon the claim against Kitch and Brown.
In short, whether the executor should have brought suit and whether it should have appealed were proper questions to be submitted to the courts for instructions. Those instructions were given, authorizing both actions, based upon counsel’s evaluation of the probabilities of success as weighed against the potential cost. We find no error in the instructions, and the judgment is affirmed.
APPROVED BY THE COURT.
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The opinion of the court was delivered by
Johnston, C. J.:
In this.proceeding the board of county commissioners of Wyandotte county asks the issuance of a writ of mandamus to compel the auditor of state to register certain county bonds issued to pay for the construction of a county bridge. A former application to register the bonds of the county for that purpose was denied because of a noncompliance with a particular statutory requirement as to the making of an estimate of the cost of the bridge. (Wyandotte County v. Davis, 92 Kan. 672, 141 Pac. 555.)
It appears that a portion of the work had been done under the first contract before the decision holding it to be invalid was announced. Following that decision the commissioners began anew, and the detailed estimate of the county surveyor, lacking in the first instance, was obtained and approved. Plans and specifications were prepared and notice of the letting of a contract was made as if no work had been done under the invalid contract, and upon the theory that the work done and material furnished by the first contractor and for which no payment had been made was owned by that company. In the second letting notice was given to each bidder that if successful he must settle with the former contractor for the unfinished abutment and piers placed there by it, and which, it is agreed, were of the value of $25,000, and must also hold the county harmless from any double liability therefor. It was further stipulated that the commissioners had no money to pay for what had. been done and furnished under the invalid contract nor any means for paying for the bridge to be built except by the. issue of bonds and that under the law bonds could only be issued to the extent of the contract price of the bridge, and further, that the purpose of the commissioners in asking that bids for the bridge, be submitted as though nothing had been done towards its construction and requiring the successful bidder to settle with the former contractor and hold the county harmless' from double liability was to enable the county to issue bonds and pay for the bridge by the only means that they found to be available.
Parties appearing as amici curise are contesting the right of the commissioners to issue the bonds or of the auditor to register them upon the ground that there was no fair and reasonable opportunity for competition in the letting of the contract because all the bidders were not put upon an equality and permitted to bid on the same terms and conditions. This contention is based mainly on the fact that the former contractor, which had begun the work on an abutment and two of the piers and owned the structure so far as it had been built was itself a bidder. It appears that the structure was in place and its condition and. extent was open to all alike for inspection and valuation. It conformed with the plans and specifications that had been approved, and met all the requirements of the commissioners. The terms and conditions were well known, and all bids were to be made upon the conditions as they existed at the place where the bridge was to be built when the contract was let. Every bidder had the opportunity to obtain from the owner so much of the structure as had been erected at its value or to build the entire bridge after the material that had been placed in the stream had been removed. It is true the owner of the material in the unfinished abutment and piers may have been able to make a lower bid than the others in order to avoid a loss which would result from the failure to dispose of the material which it had placed in the stream to a contractor and to be obliged to remove it from the place where the bridge was to be built. That company may have had the advantage of one who has material on hand suitable for the structure, and which might not be so valuable for use else- . where. Such an advantage, however, does not militate against the public interest nor violate any statutory provision. It provided a way in which the former con tractor could obtain payment for work and material honestly done and furnished, and at the same time secure to the county a bridge for the amount of the bid made in the first instance, and about the fairness of that letting there is no question, nor is there complaint by any of those who were bidders at the second letting. The only complaint comes from members of the company which was unsuccessful in the first letting, and which, according to the findings of the commissioners, was not responsible within the meaning of the statutes. The letting in controversy here was open, and the terms and conditions were brought to the notice of all who wished to bid. ■ There appears to have been no favoritism nor deceit in the action of the commissioners, and although there was the unusual condition that the bidders should settle with the contractor who had started the work, it did not, in the opinion of the court, interfere with free competition in the bidding nor invalidate the contract which was made with the successful bidder. The bonds, being valid they should be registered, and therefore the peremptory writ will be issued in accordance with the prayer of plaintiff’s petition.
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The opinion of the court was delivered by
Porter, J.:
This is an appeal by the railway company from a judgment in plaintiff’s favor for injuries sustained while in its employ.
When the case was here before, Barker v. Railway Co., 88 Kan. 767, 129 Pac. 1151, a judgment in plaintiff’s favor-was reversed on account of error in the admission of evidence, and because the instructions assumed some of the facts in issue. The action was brought under the federal employers’ liability act (35 U. S. Stat. at L., p. 65), and one of the questions is whether at the time he received his inj uries the plaintiff was engaged in interstate commerce work.
The plaintiff was the fireman of a switch engine. The crew was ordered to take the engine from Altus, Okla., where it was in use, to Clinton, Okla., to have some work done upon it. The day following, on the return trip from Clinton to Altus, the derailment occurred which caused the plaintiff’s injuries, and at this time the train consisted, besides the engine, of one water car and nine cars loaded with coal. The defendant concedes that it was engaged generally in the business' of transporting interstate commerce on its line of railway between Altus, Okla., and Wichita, Kan., but denies that in hauling the coal or train in question it was transporting interstate commerce. Stated in another way, the contention is that the work plaintiff was doing at the time of the injury had no real and substantial connection with interstate commerce.
On the second trial the jury found that the destination of the switch engine and train at the time the injury occurred was Altus, Okla.; that the destination of the water car was Dill City, Okla.; that the train started from Clinton, Okla.; that the origin of the nine cars of coal was McCurtain, Okla., and their destination Altus, Okla., consigned to N. J. O’Brien, vice president of the Kansas City, Mexico & Orient Railway Company of Texas, for use on engines running south of Altus into Texas, and for engines running north into Oklahoma.
The plaintiff testified that they were taking the .coal to Altus for use on engines running north into Oklahoma and south into Texas; that there was a coal yard at Altus kept by the company; that coal of this kind taken to Altus would be scooped out of the cars onto the tenders of the engines.
The decisions as to what will constitute interstate commerce in a case like this were quite fully reviewed in a former opinion (88 Kan. 767), and it will not be necessary to refer to them at length here. The findings in the present case are conclusive, and show that the movement of the coal from McCurtain to a consignee at Altus, Okla., was intrastate. Of course, cases where the intention of the shipper when the property was first started in transit was to forward it to a foreign destination have no application to the facts of the present case. The cars were consigned to Altus, Okla., and there the shipment ended. The most that can be said is that the plaintiff was handling coal which at a later date might become a part of an instrumentality used in the transportation of interstate commerce. But this fact alone could not make him an employee engaged in interstate commerce. The several cars of coal being transported at the time plaintiff received his injuries were to be unloaded at Altus, their bulk broken, and some portions thereof afterwards were to be used for fuel on engines running into other states. The situation would be no different if, instead of coal, the shipment had consisted of articles intended to be used in the repair of a locomotive running from Altus into Texas. In such a case the mere fact that the consignee intended to attach the articles to a locomotive engaged in interstate commerce would not make the shipment between Clinton, Okla., and Altus, Okla., interstate in character.
In Pederson v. Del., Lack. v. West. R. R., 229 U. S. 146, it was held that:
“One engaged in the work of maintaining tracks, bridges, engines or cars in proper condition after they have become and during their use as instrumentalities of interstate commerce, is engaged in interstate commerce, and this even if those instrumentalities are used, in both interstate and intrastate commerce.” (Syl. ¶ 2.}
It was said, however, in the opinion:
“Of course, we are not here concerned with the construction of tracks, bridges, engines or cars which have not as yet become instrumentalities in such commerce, but only with the work of maintaining them in proper condition after they have become such instrumental-ities and during their use as such.” (p. 152.)
In Heimbach v. Lehigh Valley R. Co., 197 Fed. 579, it was held:
“Employees of a railroad company, injured while repairing a car of another company which had reached the end of its run, been unloaded, and was lying at a station awaiting orders, were not at the time employed in interstate commerce within Employer’s Liability Act April 22, 1908, c. 149, § 1, 85 Stat. 65 (U. S. Comp. St. Supp. 1911, p. 1322).” (Syl.)'
As tending to support the same doctrine, see Ill. Cent. R. R. v. Behrens, 233 U. S. 473, 34 Sup. Ct. Rep. 646; Pierson v. N. Y., S. & W. R. R. Co., 83 N. J. Law, 661, 85 Atl. 233; L. & N. R. R. Co. v. Ohio Valley Tie Co., 148 Ky. 718, 147 S. W. 421; Oregon R. & Navigation Co. v. Campbell, 180 Fed. 253; Jackson v. Chicago, M. & St. P. Ry. Co., 210 Fed. 495.
The finding of the jury that at the time of his injury plaintiff was engaged in interstate commerce is overturned by the special findings, which establish that he was not so engaged. Besides, the court erroneously charged the jury, in substance, that it would constitute interstate commerce in this case if the shipper, or the defendant, intended that the coal, when it reached its destination at Altus, should be loaded upon tenders of locomotives for use on trips extending into Texas. For these reasons the judgment must be reversed.
The petition alleged a cause of action under the general law aside from the federal employers’ liability act, but the defendant insists that the judgment should be reversed because certain findings of the jury are in conflict with the undisputed evidence, and further, that there was error in the instructions. Two of the special findings are as follows:
■ “Question 2. Did plaintiff know or could he by the exercise of ordinary care have known before leaving Clinton for Altus that the track at the place where the derailment occurred was rough and uneven? Ans. No.
“Question 3. Did plaintiff know before leaving Clinton for Altus on the day of the accident that it was dangerous and unsafe to run or operate said engine over the rough and uneven track at a rate of speed of eight to ten miles per hour? Ans. No.”
The jury also found, in answer to question No. 6, that plaintiff, before leaving Clinton for Altus, did not know that the switch engine was not proper or safe to run over the track between those stations. The plaintiff testified as follows:
“I knew it was dangerous to operate a switch engine over a rough track at ten miles an hour, and I knew there were some very bad holes in the track, as I had been over it the day before. . . . I knew that the condition of this track was very rough and full of holes. I found this out from receiving orders and from riding-over it. I got that information from just such an order as that to which my attention has been called here. . . . From the order I knew that there were bad holes in that piece of track. . . . The ground was frozen and there was snow on it. . . . The slov/ order covered a whole lot of bad track all the way from Clinton to Altus. ... I knew all of these things about a switch engine before I took this engine. It is n’t customary to run one of these switch - engines over the road. As a matter of fact, it is considered dangerous because it has no pony trucks.”
He further testified that on the day before the accident, when they left Altus, the crew received a slow order. Referring to the language of the order, he said:
“The part of the order that refers to the piece of track on which we were derailed is ‘very rough places between Bridge 104 and Braithwaite.’ That is the order we had when we left Altus the day before. I read the order then.”
In the face of these admissions of plaintiff it is difficult to understand how the jury made the special findings referred to, and especially the finding that the plaintiff did not know that the track at the place where the derailment occurred was rough and unsafe. The plaintiff, testified that there was no “slow order” given for the return trip, and that in going back, on the return trip, he did not know that the hole was in the track. This is explained in the brief upon the theory that since there was no order given to run slow on the return trip, the plaintiff had a right to assume that defendant had repaired the track since the order of the day before. Plaintiff testified that he knew the ground was frozen and covered with snow, and he must have known on the return trip that the track had not been repaired. Besides, the clearance card directing the return trip contained the following statement:
“This does not interfere with or countermand any orders you may have received.”
Aside from these considerations, the court erred in instructing the jury with regard to assumption of risk. In several instructions the jury were told that the plaintiff did not assume the risk incident to such a trip unless such dangers “were so glaring that an ordinarily prudent man would not have attempted to make the trip”; that if it were not so glaring but that a prudent man would have encountered it, he could not be charged with assumption of risk. These instructions do not correctly state the law. They are directly contrary to the ruling in Railway Co. v. Loosley, 76 Kan. 103, 90 Pac. 990, where it was held that:
“If the servant in fact voluntarily chose to assume the risk of appreciated danger the prudence of his conduct is not open to investigation.” (Syl. ¶ 4.) •
One of the instructions in which this error appears quotes largely from that portion of the opinion in the Loosley case, where some of the distinctions between contributory negligence and assumption of risk were pointed out and commented upon. In view of the fact that courts frequently fail to distinguish between the two defenses, it is quite probable that an instruction drawn in this way would only lead to confusion in the minds of the jury. However, the vice in the instruction lies in the fact that the' court failed to follow the rule declared in the Loosley case. The jury were charged that even if they found that plaintiff had assumed the risk, that would not constitute a defense unless they further found that the dangers were so glaring that an ordinarily prudent person would not have attempted to make the trip. The same statement is repeated three times in instruction No. 24.
In Railway Co. v. Loosley, supra, the rule applying to a situation where the servant knows and appreciates the dangers was stated, and it was said in the opinion:
“If he goes on he assumes the risk. In case of injury the question is not what a reasonably prudent man would- have done or ought to have done; it is simply what the servant with his eyes open in fact chose to do. Reasonable prudence is not involved. Under the circumstances stated the servant must decide whether or not he will assume the risk, and if he does so the reasonableness of his conduct in point of care for his safety- is not open to investigation.” (p. 115.)
In the brief of the plaintiff an effort is made to find some support for the wording of the instructions by reference to certain language used in the opinion in the recent case of Fleener v. Packing Co., 92 Kan. 573, 141 Pac. 246. It was there said, ’ following a citation to Every v. Rains, 84 Kan. 560, 568, 115 Pac. 114:
"The jury were instructed, in substance, that unless the danger was so obvious that a man of ordinary prudence would not have attempted to use the plank, then he had a right to obey instructions and use it. This, with other instructions, fairly submitted the questions of assumed risk and contributory negligence.” (p. 575.)
The other instructions given are not set forth in the opinion. It was certainly not intended by the language used to announce a rule of law so in conflict with previous decisions on the subject as that contended for by the plaintiff. Manifestly the writer of that opinion had in mind the situation and the rule of law involved in Every v. Rains, supra. In that case the following rule from 4 Thomp. Com, L. of Neg., § 4641, was approved:
"The servant does not accept the risks of unknown, latent, unseen or obscure defects or dangers, such as the servant would not discover by the exercise of ordinary care and prudence, having reference to his situation,” etc.
In the case at bar the court, in substance, told the jury that even though the plaintiff knew and understood the danger, still, unless it was so glaring that no prudent person would have encountered it, there was no assumption of the risk.
The judgment will be reversed and the cause remanded for further proceedings in accordance herewith.
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The opinion of the court was delivered by
Mason, J.:
Simpson Cain brought an action under the factory act against the National Zinc Company, on account of injuries received while in its employ. On December 7, 1914, he filed an amended petition in which he asked relief under the workmen’s compensation act (Laws 1911, ch. 218, as amended by Laws 1913, ch. 216). Issues were joined and the case was tried without a jury, judgment being rendered on December 26, for the plaintiff, in a lump sum. A motion for a new trial was overruled January 15. On January 30 the defendant gave notice of an appeal, and the papers in connection therewith were filed in this court February 2. On the same day the plaintiff filed a motion to dismiss the appeal on the ground that it presents no question of law which is involved in substantial doubt. Upon the oral argument on this motion it was developed that the contentions of the appellant are that the evidence did not warrant the court’s findings regarding the extent and character of the plaintiff’s injuries, that the amount awarded was excessive, and that error was committed in requiring it to be paid all at once instead of in installments. The plaintiff’s arm was broken and there was evidence that the freedom of its movement was permanently impaired; that while this condition would not restrict his activity in some occupations, it would in others, including that in which he was engaged when injured, and in which he had been earning $17.50 a week. The court found that he had suffered a total disability for six months following the accident, and allowed him $210 on that account. It also made an additional allowance of $1014, based upon a finding of partial disability for a period of six and a half years. From the statements made in the course of the argument in behalf of the defendant we deem it clear that the evidence warranted the findings referred to, and that the decision of the trial court fixing the amount of compensation must be accepted as final. The statute authorizes an award for permanent disability covering a period not exceeding eight years, at a minimum of $3 a week. (Laws 1913, ch. 216, § 5.) Whether the judgment in such a case shall be for a lump sum, or for periodical payments, is expressly left to the discretion of the trial court (Laws 1911, ch. 218, § 36), and there is nothing in any aspect of the facts here presented to suggest an abuse of discretion. Some appellate courts refuse under any circumstances to inquire into the merits of a case upon a mere motion, while others will summarily dismiss an appeal which appears to be frivolous or taken for delay. (4 Ene. L. & P. 280.) We do not so characterize the present proceeding. The questions already referred to have been ably discussed and carefully considered. We are convinced that the case is already before the court in substantially the same light in which it would be presented if submitted upon printed abstracts and briefs as well as upon oral argument. The workmen’s compensation act contemplates the speedy adjustment of claims under it. If the determination of the amount to be paid must await the relatively slow process of litigation through an appellate court its main purpose will be defeated and its beneficent operation thwarted. In a cáse of this character the plaintiff may well raise the question whether the issue of the appeal is so far doubtful as to require the ordinary routine to be followed; and where upon the preliminary hearing resulting from such challenge the court is fully satisfied that no grounds for a reversal exist, the judgment should be made final without further delay. That situation has now arisen, and in accordance with the view stated the judgment is affirmed.
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The opinion of the court was delivered by
Brewer, J.:
The first question in this case is, whether a foreign administrator can maintain an action under § 422 of the code of civil procedure. We think he can. The section provides that, “When the death of one is caused by the wrongful act or omission of another, the personal representatives of the former may maintain an action therefor against the latter, if the former might have maintained an action had he lived, against the latter for an injury, for the same act or omission.” Now the language is general, purports to give the cause of action in every such case happening within this state, whether the deceased be a resident or nonresident, whether death ensues here, or elsewhere. All that it nominates as the condition of a right of recovery is, the wrongful act, and the resulting death. Nor do the proceeds of the recovery become assets in the hand of the administrator for payment of the debts of the intestate. They are appropriated by the same section which gives the right of action, to the “exclusive benefit of the widow and children, if any, or next of kin,” and the recovery by a foreign administrator does not at all conflict with those provisions of our law which attempt to secure the appropriation of the property of the decedent within this state to the payment of his debts due here, in preference to those due elsewhere. It, so to speak, creates a fund for the exclusive use of certain relatives of the deceased, and names the personal representatives as the trustees of that fund, and authorizes suit in their names. Any one else might have-been named as the proper party plaintiff. Authority might have been given to the widow, and for the benefit of herself and children. This question has been before the supreme court of Indiana in the case of J. M. & I. Rld. Co. v. Hendricks, 41 Ind. 49, and the right of action sustained. This is the only authority counsel have cited that is apparently exactly in point, and to that we refer for a fuller discussion of the question. There is a slight difference between the section of the Indiana statute and ours concerning the right of foreign administrators to sue, but we do not think it affects the question materially. See also, Hartford Rld. Co. v. Andrews, 36 Conn. 213.
The second objection to the petition is, that it appears that since the granting of letters of administration to the plaintiff she has intermarried with one B. P. Cutter. Letters of administration were issued in Colorado. It is not alleged what, by the law of Colorado, is the effect of such marriage upon the letters of administration. Counsel contends that, in the absence of any allegation, the common law must be presumed to be in force there, and that by that the husband upon marriage became a joint administrator and should have been united with her as party plaintiff. We do not understand that we are bound to presume, as counsel contends. The petition shows an appointment which gives an authority to sue. It does not allege any revocation of that authority by the power that granted it. It alleges a fact which by our present law would have no effect upon the authority, (though as to the law prior to 1868, see Comp. Laws, page 516, § 29.) And if we are to rest upon presumptions, we should presume that the laws of Colorado in this respect are like our own, and hence, that the authority granted still continued, and remained solely in the plaintiff, notwithstanding her marriage. Furrow v. Chapin, 13 Kas. 113; French v. Pease, 10 Kas. 54.
There being no other question in the case, the judgment will be affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
Burch, J.:
The action was commenced by Cordelia Thompson against the children of her husband, James Thompson, to establish her title to a tract of land. The plaintiff recovered and the defendants appeal, and the substantial question is whether or not a contract between the husband and wife relating to the land, executed after their marriage, was delivered.
In December, 1897, the plaintiff, then Cordelia Moreland, a widow having children, and James Thompson, a widower having children, were married. Before the marriage an antenuptial agreement was made whereby it was provided, that if the plaintiff should survive James Thompson as his widow1, she should receive the land in controversy, free from in-cumbrances, and certain personal property, to hold during her lifetime. This contract was left with the attorney who prepared it. In April, 1898, the following contract was signed by the parties:
“In consideration of the conveyance to James Thompson, by his wife, Cordelia Thompson, formerly Cordelia Moreland, on this April 29th, 1898, of Lots Five (5) and Six (6) in Block Twenty-seven in town of Little River, Kansas, she shall have at his death, in case she shall survive him, the southeast quarter of Section thirty (30) in Township nineteen, Range six in Union Township, in fee simple as her share of his estate together with the full ownership and title of the personal property referred to in the marriage contract, made between them on December 18th. 1897, are to be free of encumbrances to her as provided in said marriage contract. She by this contract receiving the full title to said property referred to in said marriage contract instead of the life estate in consideration of said house and lots in Little River, Kansas.
. “The marriage contract being attached hereto.”
This contract was prepared by the attorney who prepared the antenuptial agreement, was attached to the antenuptial agreement, and remained in the attorney’s possession. On the same day the plaintiff executed the deed to the lots in Little River, which was afterwards recorded and delivered to James Thompson. The parties lived together until the death of James Thompson, which occurred in April, 1912.
The fact of delivery was established by testimony and-by inferences from proved facts which the court stated in a written opinion as follows:
“The said post-nuptial contract was never in any manner revoked or annulled during the lifetime of the said James Thompson deceased. Neither were its terms in any manner altered, changed or modified. There is nothing in the evidence in this case even tending to show that at the time of the execution of the post-nuptial agreement the said James Thompson, deceased, was not in full possession of all his mental faculties, or that anything in connection therewith was not fully understood by him, or that he was taken advantage of in any respect whatever. Neither do the records or evidence show that the said agreement between him and his wife was not entirely fair and reasonable.
“There is no testimony in the case at all concerning the attitude of James Thompson, deceased, subsequent to the execution of the post-nuptial contract since the day upon which it was executed. So that it must be concluded, so far as he was concerned, that-his attitude towards the plaintiff under the terms of the contract was the same as that on the day of its execution. That the consideration for its execution was at all times retained by him up to and including the period of his death, and that he had refused during his lifetime to make a restoration thereof. . . . The only parties, according to the evidence, present at the time of its execution were the parties to the agreement and Mi'. Jones, with whom it was left. Mr. Jones is unable to remember under what circumstances the paper was deposited with him, and the only evidence in the case on that point is the testimony of Mrs. Murray, who testified that in a conversation between the plaintiff and her deceased husband on the day of the'execution of the instrument she heard the deceased say that he had left it with Mr. Jones until the plaintiff called for it. This testimony would tend to indicate that the paper was left with Mr. Jones as the agent of the plaintiff, and not as the representative of both parties.
“The purpose underlying this conduct is probably explained by some testimony in the case to the effect that some of his children had taken or made away with a former document of some kind, and that they would be surprised, or there would be a surprise in store for somebody when it was learned what he had- done, or words to that effect. . . . This agreement was made on the 29th day of April, 1898, and was left with Mr. Jones on that day. On that day a deed for the property described in the instrument was executed by the plaintiff to her deceased husband, delivered to Mr. Foley, recorded by him, and afterwards delivered to the deceased. They continued abiding together as husband and wife from that time until the 9th day of April, 1912, at which time James Thompson, the husband of the plaintiff, died. Approximately fourteen years had elapsed from the execution of the post-nuptial agreement to the time of his death. It was never revoked, altered, changed or modified by him in his lifetime, and there is no testimony in the case tending even to show that he ever manifested any purpose in that direction. Surely these circumstances must be entitled to some consideration in the determination of this case. There is no evidence of any incapacity or disability upon his part during any of the time, and the fact that it was allowed to remain in full'force and effect is indubitable proof to me that it should never have any other effect than that represented by its terms. ... I am inclined to believe from all of the testimony that the document was not left in escrow, but was left with Mr. Jones for safe keeping to be delivered to the plaintiff at such time as she might see fit to call for it.”
Manifestly this conclusion is well sustained. (Young v. McWilliams, 75 Kan. 243, 89 Pac. 12; Doty v. Barker, 78 Kan. 636, 97 Pac. 964; Norton v. Collins, 81 Kan. 33, 105 Pac. 26; Zeitlow v. Zeitlow, 84 Kan. 713, 115 Pac. 573.)
In Doty v. Barker it was said:
“As stated in Wuester v. Folin, 60 Kan. 334, 56 Pac. 490, the court was authorized to determine this question of delivery, which is largely a matter of intention, from the words and acts of the grantor.” (p. 641.)
An allegation of the answer that the plaintiff deeded her lots to her husband to defraud her creditors was stricken out. If the fact were true, it did not constitute a defense to the action. The parties and their privies were bound, and creditors only could complain.
Evidence was offered in an effort to show that the postnuptial agreement was not in fact of the character indicated by its terms, but was intended as security. Since the evidence was oral, the finding of the court upon the subject in favor of the plaintiff is conclusive here. • 1
Certain oral evidence offered and rejected was not presented to the court at the hearing of the motion for a new trial in the manner required by statute (Civ. Code, § 307) and consequently the rulings of the court on the subject are not reviewable.
That the postnuptial contract was executed is not disputed. That it was delivered has been well established. It was executed and delivered for a valuable consideration, deemed adequate by James' Thompson, who was competent to contract and not imposed upon in any way. This consideration he refused to return and kept until his death. The contract was not altered or revoked during James Thompson’s lifetime.' Upon his. death the plaintiff was entitled to the property which the contract gave her.
The judgment of the district court is affirmed.
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The opinion of the court was delivered by
Mason, J.:
Mrs. Mary A. Broaddus executed to her sons, J. Norris Broaddus' and John W. Broaddus, a warranty deed, which was in the usual form, excepting that after the description of the property it contained these provisions:
“This conveyance is made upon the following con ditions: First, said grantor reserves a life estate in said premises to herself; second, said grantor hereby conveys and intends to convey to said J. Norris Broad-dus and John W. Broaddus, a life estate only in said premises after the expiration of the life estate of the grantor in said premises and upon the death of said J. Norris Broaddus and John W. Broaddus the fee to the premises herein described shall vest absolutely in the heirs of said J. Norris Broaddus and John W. Broaddus.”
Thereafter J. Norris Broaddus (his wife joining) and John W. Broaddus (unmarried) reconveyed the property to their mother (now Mrs. Kirby), who brought an action to quiet her title against Anne Lee Broaddus, the minor daughter of J. Norris Broaddus. An answer was filed in behalf of the defendant, asserting that by reason of the facts already stated she had a vested interest as remainderman, her father having taken only a life estate under the deed from his mother. A demurrer to the answer was sustained, and an appeal is taken from that ruling.
The question presented is whether the conveyance from Mary A. Broaddus vested in J. Norris Broaddus and John W. Broaddus a title in fee or merely a life estate with a remainder to their heirs, and this depends upon whether the rule in Shelley’s Case is in force in this state as applied to deeds. The argument is made for the appellant that the rule in the Shelley case is no part of the common law of Kansas, not being adapted to the conditions and wants of our people, the reasons for it having no place under our system. The rule is sometimes said to have been founded solely upon principles of feudal law that have no application in this country, but more substantial grounds for it have also been stated. While it has been denounced by some authorities as arbitrary and unreasonable, it has been commended by others as well founded, and as accomplishing good results. The rule in substance is this: Where a conveyance is made to one for his life with a provision that at his death the title shall pass to his “heirs,” the grantor is conclusvely presumed to intend that upon the death of the grantee named the title shall pass not only in accordance with, but by virtue of, the law of descents; and having chosen to vest an inheritable estate in such grantee, the grantor can not, by describing it as one for life only, effectively forbid the grantee’s alienation- of the fee. There is a reasonable basis for saying that the real intention of the grantor in such case is that upon the death of the grantee the new owners shall derive their title by inheritance. He obviously has in mind no particular beneficiaries of his own grant. He is content that the law, as it shall exist when the grantee dies, whatever it may be, and however it may have been changed since the execution of the deed, shall determine the disposition of the title. His essential purpose is as the rule interprets it — -to vest the fee in the grantee, but to disable him from alienating it. This he can not do, and the attempted restriction in ineffective. (13 Cyc. 687; Note, 3 L. R. A., n. s., 668; see, also, Durand v. Higgins, 67 Kan. 110, 72 Pac. 567; Brady v. Fuller, 78 Kan. 448, 96 Pac. 854; Howe v. Howe, post p. 67).
, “Upon the absolute transfer of an estate, the grantor can not, by any restrictions or limitations contained in the instrument of transfer, defeat or annul the legal consequences which the law annexes to the estate thus transferred. If, for instance, upon the transfer of an estate in fee, the conveyance should provide that the estate thereby conveyed should not be subject to dower or to curtesy, or that it should not descend to the heirs general of the grantee upon his dying intestate, or that the grantee should have no power of disposition over it, the provision, in either of these cases, would clearly be inoperative and void, because the act or thing forbidden is a right or incident which the law annexes to every estate in fee simple, and to give effect to such provisions would be simply permitting individuals to abrogate and annul the law • of the state by mere private contract. This, can not be done.” (Steib v. Whitehead, 111 Ill. 247, 251.)
Since at this time one can not convey a fee simple in land and at the same time forbid its alienation by the grantee, there is nothing archaic in holding that he can not (without legislative authority) accomplish exactly the same result by merely calling the title he bestows a life interest.
The wisdom of the rule need not be discussed. Its history and operation are elaborately considered in a series of cases, with an accompanying Note, in 29 L. R. A., n. s., 935, 963.. It is a well-recognized part of the common law which has been adopted in this state. (Gen. Stat. 1909, § 9850.) In Peck v. Ayres, 79 Kan. 457, 100 Pac. 283, it was said that the rule has been abrogated here, but there the title created, by a will was" under consideration. In Bunting v. Speek, 41 Kan. 424, 21 Pac. 288, it was said:
“The rule in Shelley’s Casé, which was a part of the common law, has been repealed or altered by all the states except in Maryland, Georgia, Texas, Indiana, and Pennsylvania. In this state, however, it [the repeal] affects wills only. . . . When this, devise took effect, the rule in Shelley’s Case was in force in this state; but by revision of 1868, chapter 117, § 52, it was abrogated so far as wills are concerned.” (pp. 435, 437.)
The partial repeal of the rule in Shelley’s Case (Gen. Stat. 1909, § 9829) was effected by a section of a new chapter on wills, adopted at the time of the general revision of the statutes in 1868. At the same session of the legislature, and as a part of the same general plan, the entire law of conveyances ■ was revised. If it had been the purpose to do away with the rule entirely it seems clear that a provision on the subject would have been inserted in the chapter relating to deeds. The abrogation of the rule so far as wills were concerned was a recognition of its existence, and proves that the matter engaged the attention of the lawmaking body. That no change was made in this respect in the statute regarding conveyances seems to demonstrate that the legislature at that time was. satisfied with the operation of the rule so far as it affected deeds. -
The- judgment is affirmed.
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The opinion of the court was delivered by
Brewer, J.:
The question in this case is, whether at the time of the seizure the property in controversy belonged to Richard Bird, or to the plaintiff, Albert Bird. Said Richard and Albert were father and son, the latter being at the time of the attachment, 22 years of age. Up to that time they had lived together, and upon the father’s farm. The horse was a stallion of some speed, and had been driven in a race or two, the father handling and training him. Albert claimed to have bought the animal when a co]£ from pis father, and given him two calves in exchange. Several witnesses were permitted to testify in behalf of the plaintiff, that prior to the seizure he claimed the horse as his, stated that he owned him, and what he intended to do with him; and the admission of this testimony is alleged as error. We quote the testimony of one witness, Robert Bates, which perhaps is as open to criticism as any:
“I am acquainted with the parties herein, and the horse and filly. They belong to Albert Bird. He has owned them always, so he told me. Don’t know only what Albert Bird told me. Have known Albert Bird a little less than two years. He told me several times within the last year that he owned the horse, and a year ago last August he showed me the horse, and said the horse was his — said he always owned him; he said he considered the horse valuable.”
At the close of the entire testimony on behalf the plaintiff, appears the statement, that “All the foregoing testimony of plaintiff’s witnesses, proving or tending to prove the statements of plaintiff on his own behalf, were objected to at the time they were offered,” etc. The questions propounded to these various witnesses are not preserved; and there is nothing in the record, other than as quoted, tending to show in what manner the question was presented to the court for its decision, or upon what its ruling was made. Now in support of the ruling of the court, it may be said that if a proper question is asked, and an improper answer given to it, the only way to get rid of that answer is by motion to strike it out. Simply objecting to its being received, raises no question for the court to act upon. (Hynes v. Jungren, 8 Kas. 391.) Thus, supposing in the case before us the question had been asked the witness, “To whom do these animals belong?” No objection to it could have been sustained. It would have been a perfectly legitimate and proper question. If to that the witness had answered, as we find in the record, that “They belong to Albert Bird; he has owned them always, so he told me; don’t know only what Albert Bird told me” — merely objecting to the answer, would have raised no question for the court to act upon, even though a part of the answer was conceded to be improper. The only way to have brought the matter properly before the court for decision, would have been by a motion to strike out the improper part. And that much of the testimony objected to must have come in, in this way, seems probable. Indeed, it seems wholly improbable that questions could have run, not merely to every sentence in the testimony, but also to every clause in each sentence. And the first clause in each sentence of the testimony quoted, and very generally through the entire testimony, seems to be not only perfectly competent and proper testimony, but naturally responsive to a perfectly legitimate and proper question. Again, it may be remarked, that while as a general rule the declarations of a party are not admissible in his own behalf, yet an exception to the rule exists where the declarations accompany some principal fact which they serve to qualify or explain, and are thus said to be a part of the res gestee. And the exception has been held to cover cases where the possession of personal property has been a principal fact in the case. Oden v. Stubblefield, 4 Ala. 42; Thompson v. Mewhinney, 17 Ala. 366; Nelson v. Iverson, 24 Ala. 9; Upson v. Rasford, 29 Ala. 188; Overseers, &c., v. Overseers, &c., 2 Caine, 106; Willis v. Farley, 3 Car. & Payne, 395; Yarbrough v. Arnold, 20 Ark. 592; 1 Phillips on Ev. (C. H. & Edw. Notes,) p. 188, and note. In this very case a considerable portion of the testimony of the defendants conisted of the statements and declarations of Richard Bird made while in possession of the horse, and tending to show a claim of ownership by him. A common application of this exception is in the case of a party charged with larceny, where recent possession of the stolen property is a principal fact in the evidence of the state. The defendant may offer in his own behalf proof of the statements he made while holding that possession, in explanation and qualification of it. It may be that some of the testimony objected to in this case, may be upheld as coming within the terms of this exception. We do not decide that either this exception, or the proposition we first suggested, make it perfectly clear that no error was committed in the admission of testimony. It may be that some of the testimony was nothing more than the mere declarations of plaintiff, disconnected from the actual possession of the horse, and in no way qualifying or explaining any-act of his in connection with the animal. And it may be that such testimony was admitted over objection in response to a question as improper as the answer; or that in some other way a direct ruling of the court was obtained in such a manner as to preserve the error. But we are in so much doubt upon these matters, that we are constrained to hold that no error is apparent. The party who alleges error must make it clear that there was error, otherwise the presumptions in favor of the rulings of the district court will compel an affirmance.
A second proposition of counsel is, that the verdict was against the evidence. This claim cannot be sustained. The only positive and direct testimony as to the ownership, was from Albert and Richard Bird, and both testified that the animal belonged to the plaintiff. It is true, this testimony was very much shaken by the other evidence in the case; but still upon the whole case a fair question of fact was presented to the jury, and their decision thereon is conclusive.
Again, it is claimed that no demand, was alleged in the petition, and none proved on the trial. The petition was in the ordinary form in replevin, alleged 'in general terms that plaintiff was the owner and entitled to the possession, and that the defendant wrongfully detained the property. It did not attempt to specify how the defendant obtained possession, or under what claim he held it. Under those circumstances it was unnecessary to specify what particular fact, whether demand, or other matter there was, that made the detention wrongful. The testimony of plaintiff was, that when the officer came with the writ against Richard Bird and took the horse, it was in his (plaintiff’s) possession, and that he told the officer it was his, and forbade him to take it. The officer denied this. Upon this the court charged that a demand was necessary, unless at the time of the seizure the officer was notified that the property belonged to the plaintiff, and not to defendant in the attachment. Of this we think the plaintiff in error has no cause of complaint. A writ against A. gives the officer no- authority to take the property of B. And if the officer takes the property of B., and is notified at the time that it is the property of B., the taking is unlawful, and the subsequent detention wrongful. The circumstances under which demand is necessary have been recently considered by this court in the case of Shoemaker v. Simpson, ante, p. 43, and it is unnecessary to enlarge upon the matter here.
A final objection's, that the verdict was returned on Sunday. The journal entries show that the proceedings were had upon Saturday and Monday; but an affidavit of one of the attorneys of the defendant was filed on the motion for a new trial, alleging “that the verdict of the jury in the above-entitled case was arrived at by the jury and re- , . rw t ¶ t turned into open court on Sunday, the 20th day of December 1874, between the hours of 12 o’clock midnight and 10 o’clock A.M., and about 20 to 30 minutes past midnight.” There is nothing other than this affidavit tending to show that any proceedings were had on Sunday, or that all proceedings were not, as appears by the journal entries, on Saturday and Monday. Though we were to concede that this affidavit must be taken, even against the journals, as conclusive evidence of the facts therein stated, still we should be constrained to sustain the verdict. The question is not oüe of morals, or propriety, but one of strict law. Does the fact that the jury, at the close of a trial had during the hours of Saturday, fail, after retiring to consider of their verdict, to agree before midnight, do not actually arrive at and return their verdict until the close of the half-hour thereafter, vitiate the entire proceedings, and compel a new trial ? The question as to how far judicial proceedings are vitiated by being had on Sunday has been frequently before the courts. In Bass v. Irvin, 49 Geo. 436, a verdict received on Sunday was' declared a nullity. In Arthur v. Mosby, evidence was received, the case submitted to the jury, verdict returned, and judgment rendered on Sunday, and the proceedings were set aside and a new trial ordered. In Davis v. Fish, 1 G. Greene, (Iowa) 410, the charge was given to the jury, the verdict returned, and judgment entered on Sunday, and they were held erroneous. In Shaw v. McCombs, 2 Bay, 232, a verdict received on Sunday was set aside, but in the subsequent case of Heller v. English, 4 Strobhart, (S. C.) 486, the court, in an elaborate opinion, after saying that the opinion in 2 Bay was incorrectly reported, sustained a verdict agreed upon and returned into court after midnight of Saturday, and before morning of Sunday. In Huidekoper v. Cotton, 3 Watts, 56, a verdict returned at 5 o’clock Sunday morning was held good. In the following cases verdicts returned on Sunday were held good: Commonwealth v. Marrow, 3 Brewster, 402; Cory v. Silcox, 5 Ind. 370; Rosser v. McColby, 9 Ind. 587; McCorkle v. The State, 14 Ind. 39; Houghtailing v. Osborn, 15 Johns. 119; Baxter v. The People, 3 Gilman, 385; Webber v. Merrill, 34 N. H. 202. In True v. Plumley, 36 Me. 466, a verdict agreed on and sealed up on Sunday was held good. The great weight of authority goes to this extent, (and it is sufficient to sustain the proceedings in this case,) that where the trial is completed by the introduction of testimony, the arguments of counsel, and the charge of the court, and the case has passed to the jury for consideration before midnight of Saturday, the fact that they do not finally arrive at and return their verdict until some time in the early hours of Sunday morning, does not vitiate the entire proceedings and compel a retrial.
There being no other question in the case, the judgment will be affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
Valentine, J.:
This was a criminal action for forgery. The defendant moved the court below to quash the informa-7 tion, which motion the court overruled, and the defendant excepted. The state then, by the county-attorney, moved the court to continue the case until the next term thereof, which motion the court sustained, and the defendant again excepted. The defendant then appealed the case to this court.
The first question arising in the case is, whether a defendant in a criminal action can appeal from the district court to the supreme court on the overruling of a motion of the defendant to quash the information, or on the sustaining of a motion of the state for a continuance of the case till the next term, while the case is still pending in the district court, undisposed of. We do not think that an appeal will lie in such a case. The only section of the statutes authorizing a defendant in a criminal action to appeal reads as follows: •
“Sec. 281. An appeal to the supreme court may be taken by the defendant, as a matter of right, from any judgment against him; and, upon the appeal, any decision of the court, or intermediate order, made in the progress of the case, may be reviewed.” (Gen. Stat., 865.)
Section 283 of the same act (criminal code) provides for the state taking an appeal in .certain cases. Section 282 of the same act, and of the same article, provides as follows:
“Sec. 282. An appeal from a judgment in a criminal action may be taken in the manner and in the cases prescribed in this article.”
That article is article 14 of the code of criminal procedure. The provisions of the code of civil procedure for taking cases from the district court to the supreme court are not in their nature applicable to criminal cases. Among other reasons, criminal cases can be taken from the district court to the supreme court only by appeal, while civil cases can be taken from the district court to the supreme court only on petition in error. And there is no statutory provision which in terms makes the provisions relative to proceedings in error in civil cases applicable to appeals in criminal cases, or vice versa. Besides, there can be no such motion as a motion to quash an information in a civil action; and where a criminal case has been tried on its merits, and the defendant acquitted, the state has no appeal. The acquittal is conclusive. And taking §§ 281 and 282 of the criminal code, and applying the maxim, expressio unius, est exdusio alterius, and a criminal appeal can be taken by the defendant only after judgment; and an intermediate order of which he complains can be reviewed only on such an appeal.
We do not think that an appeal can be taken in cases of this kind, and therefore the appeal in this case must be dismissed.
All the Justices concurring.
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The opinion of the court was delivered by
Brewer, J.:
This was an action by defendant in error to recover damages for property consumed by fire, claimed to have been started from one of the engines of the railroad company. The fire was the same as that which destroyed the property of ¥m. M. Stanford, a judgment in whose favor therefor was in 1874 sustained by this court. (A. T. & S. F. Rld. Co. v. Stanford, 12 Kas. 354.) There are also three other actions now pending in this court to recover damages done by the same fire, or fires from the same engine upon the same day. Of course, as to all questions then decided, nothing need now be said. Many of the questions in that case do not arise in this; and some additional matters are here presented.
And the first question we shall examine is, as to whether the verdict is contrary to the evidence. And here the only matter of difficulty is as to negligence on the part of the company. The evidence thereon, may be briefly ■ stated as follows: There is the testimony of some fifteen witnesses who saw the train drawn by the engine No. 9 passing from Emporia westward, and immediately after it passed along saw fires starting in the prairie grass beside the track. The exact number of fires started, as seen by the witnesses, does not clearly appear; but there were quite a number — one at Emporia, several near the county line between Lyon and Chase counties, and one at least near Cottonwood station. Though trains were passing and- repassing over this road during that fall, some upon the same day, it appears that they started no fires. Several competent witnesses testified that an engine in good condition, and well managed, seldom throws out sparks so as to start fires along the road,- and that if two engines passed over a road upon the same day, under the same conditions of wind and weather, and one started no fires while the other started a succession of them, this difference could be reasonably accounted for only on the supposition that the latter was badly constructed or managed. One witness testified to seeing something coming from the smoke-stack of this engine, a little heavier than smoke, separating from the smoke and falling into a field, and almost immediately thereafter a fire starting up in the surrounding stubble. He thought this object- looked like a string of dust, as he expressed it. He was at the time standing some little distance from the engine, but in plain view. Another witness who went into this field, after the fire, found there a burnt piece of coal about the size of half a dollar, surrounded by ashes and apparently the remnant of a larger piece of coal, one (say six inches in diameter) which had there been burning. The conductor of the train, w.ho had noticed the fires, when it reached Cottonwood Falls telegraphed the assistant superintendent of the road that the engine was setting the country on fire, and asked what he should do, and was told to go ahead. On the other hand, it appeared that a strong wind was blowing that day, the engineer thinking it the strongest he had ever run a train against. Some five witnesses, apparently experts, and competent, who examined the engine at dr shortly after these fires, testified that she was in good order, and supplied with all the best appliances for preventing the escape of fire. As many testified that the engineer was a competent and careful engineer; and he testified that he took all possible precautions on that'day to prevent injury from escaping sparks. No defect in the engine was suggested by any witness; nothing pointed out as wanting to complete the most perfect arrangement for guarding against accidents or injury. There was not a syllable of testimony denying the competency and prudence of the engineer, and nothing tending to show wherein he failed of the utmost possible care upon that occasion. Upon this testimony can a finding of negligence be supported ? That the evidence of the plaintiff established a prima facie case of negligence, will not, under the prior rulings of this court, be doubted; but it is insisted strenuously that this raises a mere presumption which may be sufficient in the absence of other testimony, but which falls to the ground when opposed by clear and positive testimony as to the actual condition and management. Presumptions may be good in the absence of testimony, but cannot overthrow it. Here all the testimony is to the effect that the engine was in good condition, and supplied with all known appliances for preventing injury. Upon what'may a jury find that it was not in such condition, and so supplied ? Who can name a thing that was wanting? Who can tell what was out of order? Is a jury at liberty to find against the only direct and positive testimony ? And if so, of what avail is it to introduce testimony ? And so as to the conduct of the engineer: who can name anything which he ought to have done and did not do ? in what respect did he omit care ? in what was he negligent? In other words, what more could the company, if possessed of all the facts it now possesses, have done to prevent the injury? What do the jury say ought or could have been done? Must not the conclusion be inevitable, that this injury was the result of accident, and not of negligence ? Something which could not have been foreseen nor guarded against, and is not now known ? • On the other hand, it is said that all or nearly all of the witnesses for the defendant are or were in its employ, and may be presumed to be influenced to some extent thereby; that the sole witness as to the care and prudence of the engineer, is the engineer himself; the one upon whom all blame must rest, if blame there be, and whose strong interest therefore would be to show no negligence; one too, who would be least likely to see negligence in any act of his — for it is not in human nature for one readily to perceive faults or omissions in one’s own-conduct; that his own testimony shows that he is not perfectly clear and accurate in all his recollections, and that a jury might properly hesitate to give the fullest credence to his statements as to his own care and conduct. More than that, the marked difference between the results that followed the passage of this engine upon this day, and those that followed its passage upon other days, and that of other engines upon the same and other days, is too great to be fairly and reasonably attributable to accident, and that too in the very judgment of the experts called by defendant. While the testimony may not show in what particular the company was guilty of negligence, yet the results of the running of the engine are clear and satisfactory evidence of negligence somewhere; and a jury was clearly justified in so finding. We have given the testimony, which is quite voluminous, a careful examination, and notwithstanding the undoubted fact that ordinarily direct and positive testimony as to actual condition and conduct is entitled to more weight than mere presumptions from results, we are compelled to hold that there is abundant testimony to uphold this verdict. We cannot be otherwise than strongly impressed with the belief that there was negligence in the running of engine No. 9 upon that day, although unable to point out the particular matter of negligence.
The suggestions already made are decisive of the second question we shall consider. In addition to the general verdict certain questions were presented to the jury, and they were instructed to answer them. Six questions were thus presented by the plaintiff, and thirty by the defendant. The six were fully and specifically answered, while some six or seven of the thirty received only the answer, “ Don’t know.” The following are the questions thus answered:
“5th., Was said engine No. 9 in good repair on October 12th 1871, and provided with all the most approved appliances then in use for preventing injuries, by the escape of fire and sparks therefrom, to property or combustible material upon or adjacent to the line of the railroad?” Answer— “Don’t know.”
“6th. If engine No. 9 was not in good repair on October 12th 1871, and was not provided with such appliances'mentioned in question No. 5, wherein was said engine out of repair, or defective, or wanting as to such appliances?” Answer — “Don’t know.”
“24th. If the fire was started from engine No. 9, how was it so started? by sparks from the stack, or in some other way?” Answer-1 Don’t know.”
“25th. If by other means than sparks, what?” Answer— “Don’t know.”
“26th. If the engineer of No. 9 reduced the speed of his train to about 10 miles per hour, ran with a slow or dead fire, and with one of the dampers shut and closed all day on October 12th 1871, were these precautions all that careful management required him to take?” Answer-“]Ao.”
“27th. If no, what other precaution should he have taken?” Answer — “Don’t know.”
“29th. Was engine No. 9 properly and carefully managed at the time of passing the place of fire, on October 12th 1871?” Answer-1 No.”
“30th. If no, in what particular?” Answer-11 Don’t know.”
Now, if a jury may properly find negligence on the part of the company, without being able to specify in what particular the negligence consisted, it follows that the only answer which sometimes they can give to a question as to negligence in a particular matter is, that they do not know. And the fact that testimony has been received as to that particular matter may not affect the propriety of the answer. In this very case, we think the jury might properly say that they were satisfied that this injury resulted from negligence, and still, after hearing defendant’s witnesses in reference to the condition of the engine, and conduct of the engineer, be unable to decide whether the fault was with the engine, or the engineer. True, all the direct testimony points to an engine in good order, and suitably supplied; but the jury are not limited to this direct testimony, and upon it bound to find the fact accordingly. Suppose, for instance, the question were as to the sanity of a party at the time of a particular act, and half a dozen experts, more or less interested, testify to his sanity: must a jury find a party sane, upon this, the only direct testimony upon the question, when the act itself carries upon its face the most satisfactory evidence, of the actor’s derangement? Or suppose one’s field of grass is burned with fire from a neighbor’s premises, and it appears that that neighbor was, prior to the fire, smoking a cigar, and also having a bonfire; and it is evident to the jury that by reason of distance and other facts the fire could not have been communicated without gross negligence on the neighbor’s part, and yet it does not appear whether the fire "was communicated by the cigar, or the bonfire: may not the jury find the neighbor guilty of negligence, and yet in response to a question as to whether the fire was communicated from the cigar, answer that they do not know? "While the rule is general, that wherever a question of fact is pertinent, and an answer can be deduced from the testimony, it is the duty of the. court to compel an answer, and refuse to receive a verdict until one is made, yet, .where the question is not as to one of the issuable, essential, and principal facts, but runs' to one of the minor and subdivided facts into which every principal fact may be resolved and reresolved almost indefinitely, and the entire testimony leaves in uncertainty the existence of several facts, including the one inquired about, either of which would be sufficient to sustain the general conclusion reached, there may be cases in which a court may properly receive and sustain a verdict where the only answer to the question is, that the jury do not know. These cases are not common, and a court should always scrutinize with great care a verdict accompanied by such answers to questions, and should never receive or sustain one when it is evident that a determination of the fact is essential to the conclusion reached in the general verdict, nor where it is apparent that the jury by improperly professing ignorance have sought to leave the facts in such uncertainty as unduly to hinder any subsequent inquiry into the correctness of their verdict.
In reference to the instructions, we deem it unnecessary to notice them in detail. The court presented its views of the law in a charge of its own preparation, and refused to give any of the instructions asked by either side. In this charge we think the law is correctly stated, and with sufficient fullness and detail. Upon the whole case we see no error justifying a reversal, and the judgment must be affirmed.
An examination of the records in the cases of the same plaintiff in error against Joseph Rickabaugh, and against Stephen Shaw, shows that they are so nearly like the case at bar that no separate opinion is required for them, and they also will be affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
Brewer, J.:
Appellant was indicted for the crime of shooting with intent to kill. To this indictment he pleaded autrefois acquit. A demurrer to this plea was sustained; and without waiting until after a trial on the merits, defendant has appealed to this court from the ruling sustaining the demurrer. Doubtless the appeal is premature, and the case not properly before us. No judgment has yet been rendered, and appeals in criminal cases are only from judgments. (Gen. Stat., p. 865, § 281; The State v. Freeland, ante, p. 9.)
But waiving this, we think the ruling of the district court was correct. The plea disclosed a prosecution against appellant for maliciously shooting and wounding a horse, not the property nor in the possession of the party upon whom the assault with intent to kill is charged to have been made, and alleged that the shooting charged in the two prosecutions was one and the same shooting. Does this disclose an acquittal of the offense of which he is now charged ? We think not. The two offenses are entirely distinct. One is not included in the other — is not a lesser degree of the other. The character of the testimony must be different in each. One fact, that is, “shooting,” may be necessary for conviction under either charge. But something more is necessary in each, thán the mere fact of shooting. The rule is thus stated by Wharton in his Criminal Law, (1 Wharton, 7th ed., §565:) “It may be generally said, that the fact that the two offenses form part of the same transaction, is no defense, when the defendant could not have been convicted at the first trial, on the indictment then pending, of the offense charged in the second indictment.” And again: ■ “ Where the evidence necessary to support the second indictment would have been sufficient to procure a legal conviction upon the first, the plea is generally good, but not otherwise.” It was said by Lord Denman, in Regina v. Button, 11 Ad. & Ellis, New Series, 946, “The same act may be part of several offenses. The same blow may be the subject of inquiry in consecutive charges of murder and robbery. The acquittal on the first charge is no bar to a second inquiry, where both are charges of felonies; neither ought it to be, when the one charge is of felony, and the other of misdemeanor.” In 1 Russell on Crimes it is laid down, that “The acquittal on one indictment, in order to be a good defense to a subsequent indictment, must be an acquittal of the same identical offense charged in the first indictment.” In the case of the Commonwealth v. Harrison, 11 Gray, 308, a party who had been tried for selling liquors without license was convicted of the offense of keeping his saloon open on Sunday, although the sale of the liquor was part of the evidence to sustain the latter charge. In Commonwealth v. Bake- man, 105 Mass. 53, the defendant had been acquitted under a charge of willfully obstructing the engines and carriages of the C. Rld. Co., by placing an iron rail across the track, and was subsequently convicted upon a charge, under a different section of the statute, of willfully putting a rail across the track with intent to obstruct the engines and carriages of the same company, and the conviction was sustained, although the same act was referred to in the two charges. The court uses this language: “It may well be that both indictments refer to the same transaction; but that fact is not decisive as to the legal identity of the two offenses. The test as to the legal identity of the two offenses is to be found in the answer to this question: Could the prisoner, upon any evidence that might have been produced, have been convicted upon the first indictment of the offense that is charged in the second?” See also, Commonwealth v. Roby, 12 Pick. 496, in which it was held, that a conviction of an assault with intent to murder could not be pleaded in bar to an indictment for murder. In Price v. The State, 19 Ohio, 423, the rule is stated as taken from Archbold’s Cr. Pleading, and also from Roscoe’s Cr. Ev., that “the true test, by which the question, whether such a plea is a sufficient bar in any case, may be tried, is, whether the evidence necessary to support the second indictment would have been sufficient to prove a legal conviction in the first.” These authorities are decisive of the question, and the ruling of the district court was correct.
The appeal will be dismissed.
All the Justices concurring.
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The opinion of the court was delivered by
Valentine, J.:
This was a criminal prosecution under §233 of the crimes-and-punishment act, (Gen. Stat. 369,) charging the defendant with defiling a female under eighteen years of age by carnally knowing her while she was confided to his care and protection. As we understand, the defendant waives all objections to the proceedings of the court below, which if sustained would merely require a new trial, and asks that we shall decide the case upon such questions only as go to the very foundation of the present prosecution. This we shall do.
I. The defendant objects to the jurisdiction of the court below, and this he does upon the ground that on the first and original preliminary examination in the case he was discharged. It seems that the defendant had two preliminary examinations. On the first, he was discharged — on the second, he was held to answer in the district court. The question now is, whether the first preliminary examination was a bar to all further and subsequent proceedings for the same offense. We think it was not. One preliminary examination for a criminal offense is no bar to another preliminary examination for the same offense; nor is it any bar to a full prosecution for such offense, although, as in this case, the defendant may have been discharged on the first preliminary examination. A mere preliminary examination does not put the accused in jeopardy within the meaning of the constitution. (Const., Bill of Rights, § 10.)
II. The defendant claims that the information upon which he was tried does not state facts sufficient to constitute any offense. The information among other things states as follows: “That one William W. Jones, late of said county of McPherson, at the county of McPherson, in the state of Kansas, and within the jurisdiction of this [the district] court, on the 28th day of December 1875, did willfully, unlawfully and feloniously defile one Louisa Antoinette Holbrook, by carnally knowing her, she, the said Louisa Antoinette Holbrook then and there being a female under the age of eighteen years confided to the care and protection of the said William W. Jones by Rufus B. Holbrook and Adaline Holbrook, the father and mother of the said Louisa Antoinette Holbrook.” The objections urged against said information are as follows: 1st, The information does not allege that the said father and mother of the said Louisa Antoinette were her natural guardians, or had authority to confide her to the care and custody of said defendant Jones. 2d, Nor does the information allege that Jones knew that said Louisa Antoinette was under eighteen years of age.
We think the information is sufficient in these respects. A female person under eighteen years of age is a minor, (Gen. Stat. 580, §1,) and the father and mother are by law the natural guardians of the persons of their minor children, and each parent equally so with the other. (Gen. Stat. 512,' §1; Const., art. 15, §6.) And except in rare cases, the parents have the actual care and control of their minor children. And such would seem to have been the case in this very case, for the information itself states that said Louisa Antoinette was confided to the defendant Jones by her parents.
It is probably not necessary that the information should allege in any form that the defendant knew that the person whom he defiled was under eighteen years of age; and it is probably not necessary in any case that the state should prove that the defendant had any such knowledge. And it is very doubtful even whether the defendant would be allowed in any such case to prove as a defense that he had no such knowledge. When a man commits what he knows to be an immoral act, he ought to be required to take the entire consequences of such act, although he may not have been fully advised as to all the circumstances connected with the act. In fact, when a man sets out willfully to do an immoral act, he ought to be bound to know all the circumstances connected with such act. Such a person is in no proper condition to plead innocence. (In connection with this subject, see Bishop’s Statutory Crimes, §§ 632, 644; Train & Heard, Precedents of Indictments, 444, Ch. 41, Form 3.) We think that all that is necessary in a case like this is, for the state to allege and prove the fact that the girl defiled was under eighteen years of. age, without alleging or proving that the defendant had knowledge of such fact. But the state did allege in this case that the defendant “did willfully, unlawfully, and feloniously defile” said girl, etc., which comes very near alleging knowledge on the part of the defendant. And the state also proved that the defendant had fall knowledge that the girl was under eighteen years of age.
III. The defendant claims that the court below erred in excluding certain evidence tending to show that the girl was not a person of chaste character. He claims that if she was unchaste she could not be defiled — that none but the chaste and virtuous can be defiled. There is perhaps some reason for this claim, and yet we can hardly think that the law was intended for the protection of those only who are absolutely pure. It can scarcely be possible that a girl who has lost her virtue by a single act of unchastity, by a single illicit amour, must forever afterward be wholly abandoned to the insidious wiles of every designing libertine in whose care or custody she may unfortunately be confided. Of course, such a girl is weak; but the protecting care of the law is generally designed for the weak, and not merely for the strong. Of course, such a girl has already been defiled; but may she not be further defiled ? Is it possible that a girl of less than eighteen years of age can reach such a depth of sin and pollution that there can be no lower deep into which she may be plunged by an unfaithful protector to whom she may have been confided ? If not, then the protecting care of the law should be generously thrown around her. And the feelings of her friends and guardians, who undoubtedly desire her reformation, should be regarded, and not violated by the very man in whom they have reposed confidence. But the statute itself would seem to define how she may be defiled. She may be defiled “by” the offender “carnally knowing her.” We therefore think that it makes no difference whether said Louisa Antoinette was chaste or unchaste. Nor do we think that it makes any difference whether she consented, or was forced to yield to the unlawful embraces of the defendant. The question is merely, whether he had carnal connection with her while she was under his care and protection. Even if she encouraged his unlawful desires, even if she was the moving spirit in their lascivious embraces, still, if he had carnal connection with her while she was under his care and protection, (she being under eighteen years of age,) we think he was guilty of the offense charged against him.
IV. The court below instructed the jury among other things, as follows: “ If you shall find the said Louisa Antoinette was by her parents sent with, or allowed by her parents to go with, the defendant, upon his request to his house for the purpose of seeing defendant’s wife to make a contract for work in his family, and for no other purpose, such facts would constitute the care and protection contemplated by the statute.” The defendant excepted tó this instruction. The defendant also raised this same question by asking the court below to give certain instructions, which the court refused to give; and also raised the same question by moving for a new trial because of misdirection of the jury, and because the verdict was not sustained by sufficient .evidence, which motion was overruled. ’ We dojuot think that the court erred in any of these respects. The evidence applicable to this question showed substantially as follows: On December 28th 1875, the defendant Jones went in a two-horse wagon to the house of Mr. Holbrook. Mr. Holbrook, Mrs. Holbrook, .and their daughter Louisa Antoinette, who was then between the ages of fifteen and sixteen years, were all at home. The defendant then stated that his wife wanted to hire a girl to work for her; that he wanted “Nett,” the daughter, to go home with him for his wife to make a bargain with; that he never made a bargain with a girl to work for his wife; that he always let his wife make such bargains. The Holbrooks all consented to such an arrangement, but upon condition that defendant would bring the girl back the next day, to which condition the defendant consented. The defendant resided about five miles 'from Holbrook’s. He took the girl with him in his wagon to his home, but when they arrived there they found no one at home. The defendant then said that his wife had probably gone to Mr. Einan’s, a neighbor who lived near by. He however soon produced a note in writing, purporting to be from his wife, but which was in fact written by himself, which stated that his wife had gone to Mr. Hanna’s, (a neighbor who lived about seven miles from the defendant’s house,) and asking that the defendant would come after her the next day. The defendant himself however had on that very same day, and before he went to Holbrook’s, taken his wife and his two children to Mr. Hanna’s. It would seem to have been about night when the defendant and the girl arrived at the defendant’s house. And on that night the defendant and the girl staid alone at the defendant’s house, slept together, and had sexual intercourse with each other. The next day the defendant took the girl back to her own home. We think that the trust reposed in the defendant by the father and mother of the girl, in confiding her to-his care for the purpose that he might take her to his own home so that his wife could employ her as a hired girl in his own family, was such a trust as is fairly contemplated by the statute. It was very much like placing the girl in the defendant’s family as one of the family, and reposing the confidence for her care and protection in the defendant himself as the head of the family.
The judgment of the court below will be affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
Valentine, J.:
Injustice may have been done to the plaintiff in error in this case by the judgment of the court below, and yet we do not think-that the injustice could have originated from any ruling of that court. If injustice was done, it was caused by the false testimony of the plaintiff below, (defendant in error,) and the disposition of the jury to find everything in favor of the plaintiff below, and everything against the defendant below, whether there was sufficient evidence, or indeed any evidence, to support such finding or not. If the court below had allowed the jury to find as the jury desired to find, the verdict would have been much worse for the plaintiff in error than it in fact is. The • court however would not allow the jury to find against-the defendant below where the evidence was all in its favor, unimpeached and uncontradicted. It was only where the evidence was contradictory and conflicting that the court allowed the jury to find (as they desired to find) in favor of the plaintiff below, and against the defendant below. Now taking the findings of the jury to be true, and we do not think the court below committed any error that would authorize a reversal of the judgment. The findings of the jury in connection with the admitted facts we think sustain the judgment. The findings are as follows:
{Title.) We, the jury, find the following facts, and this is our special verdict in this action:
1st. The plaintiff, Isabel W. Dunklee, mentioned in the policy sued on in this action, was the wife of said John Orson Dunklee at the time of his death, and at the time the said policy was executed; is the person mentioned in said policy as the beneficiary thereof. The said John Orson Dunklee died on the 5th of May 1872, and the defendant in this action, and its officers and agents knew and had due notice of said death on the 6th of May 1872; and on the 31st of January 1873 the said plaintiff again gave notice, and furnished proof to said defendant of the death of said Dunklee.
2d. The first six quarterly-premiums of $30.90 each in said policy were paid to said defendant, and credited on its policy-register as having been paid. Said John Orson Dunklee was a special agent of said defendant from the time said policy was made and executed to the time of his death, during which time he was in the employ of defendant for compensation by it to be paid to him for his services, and while he was in such employment, the said defendant, by H. D. Mackay, its president and agent in that behalf, did in the first part of January 1872, promise said John Orson Dunklee and said plaintiff, that said defendant would charge said John Orson Dunklee with the amount of the premiums in said policy mentioned, as the same should thereafter become due, and in consequence of which promise of said defendant said John Orson Dunklee continued in the employment of and to serve said defendant as special agent, until his death; and in consequence of such promise, and upon the faith thereof, said Dunklee deceased did not pay the quarterly-premiums which came due on the 25th of January 1872, and the 25th of April 1872, in money; but said company did not charge said premiums against said Dunklee upon its books. We find that said Mackay had the right and authority to make the aforesaid agreement with the assured and the plaintiff, unless the court shall be of opinion that his action was- unauthorized and void, in consequence of the terms and provisions of the constitution and by-laws of the company relating thereto, which are as follows, viz.:
“Sec. 3. All policies issued by this company are non-forfeiting, and all premiums shall be payable in cash. In case any policy-holder shall omit to pay any premium due from him to the company, or violate any other condition of the policy of insurance, the board of directors may forfeit his policy, except that when said violation is neglect to pay premiums and that only. In such case the company shall issue such paid-up policy as is provided for by the original policy. The company may issue paid-up policies to its policy-holders for such proportion of the same as premiums paid will warrant, upon such basis as the company may from time to time adopt; or the company may, in lieu of issuing paid-up policies of insurance, or declaring the same forfeited as above provided, continue the same in force beyond a certain period to be determined as follows, to-wit: The net value of the policy, when the premium becomes due and is not paid, shall be ascertained according to the combined experience, or actuaries’ rate of mortality, with interest at four-and-one-half per cent; per annum. After deducting from such net value any indebtedness to the company, held by the company against the assured, four-fifths of what remains shall be considered as a net single premium of temporary insurance; and the term for which it will insure shall be determined according to the age of the party at the time of the lapse of premium, and the assumptions of mortality and interest aforesaid.
“Sec. 4. It shall be the duty of the president to preside at all meetings of the stockholders and directors; to exercise a supervision and superintendence over all the business and affairs of the company, and to report in writing, in a book to be kept for that purpose, at each meeting of the board of directors, the true condition, standing and affairs of the company; he shall have the safe-keeping of the seal and the attested'charter of the company, and with the written consent of the finance committee may transfer stocks and other prop'erty held as investments or owned by the company; acknowledge deeds and other papers, satisfy mortgages, make and call in investments. He shall sign all policies, statements, contracts, and other papers necessary and proper for the interests of the company; and, with the secretary, issue all policies; and with the general agent and executive committee, establish agencies for insurance, and appoint agents therefor, at such places as the president, general agent and executive committee shall deem for the best interests of the company, and shall be ex officio chairman of the executive committee, finance committee, and committee on death-losses, and shall devote his entire time and energies to the interests and business of the company.
“ Sec. 5. The vice president shall perform the duties of president during the absence of that officer, and in case the president ceases from any cause to act as such, the vice president shall act as president until a new president is elected and qualified. At other times he shall perform such duties, not otherwise provided for, as may be required of him by the board of directors, or executive committee.
“Sec. 6. The secretary shall be the clerk of the corporation; shall attend all the meetings of the board, and its standing committees; shall keep a full and true record of all the proceedings of the board of directors, stockholders, and standing committees; shall keep a record of every policy issued, and all indorsements thereon, and shall sign all policies and premium receipts, and, with the president, issue the same; and shall sign or countersign all papers when required by the board, or required to be signed by him by these by-laws, or by the statutes of the state; shall collect and receive all moneys due the company, or collected on its account, and forthwith pay the same over to the treasurer, and take and preserve his receipt therefor; and keep, subject to the order of the finance committee, all the securities and money-documents of the company. He shall have the charge and supervision of the books of accounts; see that just, true and correct cash ar.d other . suitable books are kept; particularly of all moneys received, drawn, or disbursed; for what, and of whom received; for what, and to whom paid; and of all money, demands, securities, assets, accounts, and property, necessary to a clear and distinct exhibition of the affairs, standing, and business of the company, which shall at all times during business hours be open to the examination of the board, or any director thereof; to give notice of all meetings of the board, and to perform such other duties, not inconsistent with the duties of his office, as may be required by the board of directors, the president, or any of the standing committees of the company; and he shall also, with the assistance of the president and actuary, prepare and cause to be filed at the proper places all such statements, accounts and reports as are or may be required by the laws of the United States, or of any state in which the company may do business; and shall perform generally all the acts ordinarily pertaining to the office of secretary of like companies. In the absence of the secretary, the assistant secretary shall act as secretary. When the secretary is not absent the assistant secretary will perform such clerical duties as may be required of him by the secretary. The secretary and assistant secretary shall each give such bond as may be satisfactory to the finance committee, for the faithful discharge of their official duties.”
3d. In the month of May 1873 said plaintiff, by Clough & Wheat her agents, demanded payment at the office of said , defendant in. the city of Leavenworth for the amount of the policy mentioned, which payment was refused,' and has not since been paid.
4th. The aforesaid policy had, at the death of John Orson Dunldee, a surrender value.
5th. Said policy was not canceled on the 25th of January 1872, nor on the 25th of April 1872, nor at any other time; nor did said John Orson Dunldee ever consent, contract or agree that said policy had been or should be canceled or lapsed.
6th. The said John Orson Dunldee had copies of the charter and by-laws of the said defendant, and was acquainted with the terms and provisions thereof.
7th. The defendant paid the plaintiff Mrs. Isabel W. Dunklee money at various times from 1st of January 1872 to the 1st of April 1872, on account of the said John Orson Dunklee’s salary.
8th. If on the foregoing facts the plaintiff is entitled to recover’, then we find for her, and assess her damages against said defendant at the sum of $5,239.
Jas. S. Crow, Foreman.
"We do not think that the contract between Mackay and the Dunklees was void, although the by-laws of the company' required that all premiums should “be payable in cash.” The payment provided for by the contract was substantially a payment in cash. Dunklee was at the time collecting large sums of money for the company. He paid such sums over to the company, and received his commissions and fees for his services therefrom. The company kept an account with him. And it would not be strange, that the company should charge him with the amount of his premiums as they became due, and should deduct such amounts from his said compensation. This is just what the company in fact did with reference to certain of the premiums which the company admit were in-fact paid. The last two premiums, which the company admit were paid, were paid in that way, although Dunklee was then owing the company about the sum of $1,318.28. Said policy was for the sum of $5,000, was issued July 25th 1870, on the life of said John Orson Dunklee for the benefit of his wife, said Isabel W. Dunklee. The premiums were payable quarterly, and each premium was for the sum of $30.90.
There are some other questions in this, case, but there are none that merit discussion.
The judgment of the court below will be affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
Harvey, C. J.:
This was an action for damages for personal injuries sustained by plaintiff alleged to have resulted from the negligence of defendant. The trial court sustained defendant’s demurrer to plaintiff’s evidence and she has appealed.
We think it unnecessary to summarize the pleadings further than to say that the relationship of the parties is not controverted and that the evidence hereinafter summarized was within the purview of the pleadings. The evidence may be summarized as follows:
Plaintiff testified that she was 36 years of age; that she lived at 629 Golden street, Topeka, with her two daughters; that she had previously been married to one Paul Dunn and divorced from him in 1949; that subsequent to their divorce Paul Dunn had threatened her on more than one occasion; had told her if she didn’t remarry him he was going to kill her; had threatened her over the telephone on the night of May 12,1952; that she was afraid and had previously filed a complaint against him with the county attorney because of such threats, and he had broken into her home. She further testi fled that she was employed as a cook in the officers club at the Topeka air base; that it was customary for her employer, the club manager, to pick her up each morning and to pick up her co-workers and take them all to work in his automobile. That on the evening of May 12, 1952, her employer called her on the telephone telling her that he would be unable to pick her and her co-workers up the next morning, May 13, and that he had hired a cab to pick her and her co-workers up and bring them to work; that the cab would come first to her home about 5:15 a. m. and she was to direct the driver of the cab to the address of the other workers and get out of the cab and knock on the door of each of them and let them know it was time to go to work. That on the morning of May 13,1952, between 5:15 and 5:20 a. m. a Yellow cab belonging to defendant’s company and driven by its agent and servant Floyd Rranhan drove up to her home on Golden street; that she went out and got into the back seat of the cab; that just as she was approaching the cab she saw Paul Dunn running towards her; that plaintiff got into the cab and told the driver not to pick the man up; that she was afraid of him and that he had threatened her. The cab driver did not answer her but did turn and look at her. When Paul Dunn reached the cab he opened the front door and started to get in; plaintiff told him that he couldn’t get in, that she was going to work and had passengers to pick up. Dunn said nothing; the cab driver said nothing. Paul Dunn got in the front seat and shut the door; the cab driver turned and looked at the plaintiff and she told him again that Dunn could not use the cab. The cab driver said nothing and Paul Dunn said— apparently addressing the cab driver — , “Well, fellow, take me to the bus stop and I will get out.” Plaintiff had previously, told the cab driver where the first stop was to pick up a passenger; the cab driver said nothing but started to drive to the first stop for plaintiff’s passenger. As they approached the next bus stop, which was only a few blocks, plaintiff noticed the cab driver was not slowing down and she told him there was a bus stop and to let Paul Dunn out. The driver said nothing and did not slow down and let Dunn out but drove to the home of the first person plaintiff desired to pick up and stopped in front of the house. Plaintiff got out and went around the house and knocked on the back door. No one answered at first, finally the mother of the person who was to go to work told plaintiff that she couldn’t raise him and supposed he wasn’t going to work. Plaintiff went back to the cab. She didn’t see Paul Dunn until she got almost to the cab when she saw him coming around the cab. He said that he guessed he would be leaving, she told him she would appreciate it and proceeded to get back in the cab but got only partly in. She had opened the door and had one foot on the running board when Dunn started shooting at her; grabbed her by the dress with his left hand; pulled her free of the cab and she lost her footing. Dunn fired 6 shots at her; beat her over the head with his pistol, and slashed her across the throat with a knife. The cab driver drove away. Plaintiff testified to further abuses by Dunn and how she finally got to the hospital; her illness there; expense of it; the time she lost from work, and other items of damage, the amount of these need hot now be considered.
There is not much question about the law of this case. In 13 C. J. S. p. 1294, the general rule is thus stated:
“A carrier is under the duty to use due care to protect its passengers from the torts or misconduct of fellow passengers and is liable for failure to comply with such duty.”
In 10 Ain. Jur., p. 100, the general rule is thus stated:
“The liability of a carrier is governed by the general rules governing liability for negligence. The duty of the carrier is to exercise the highest degree of care toward his passenger, and failure to exercise such care renders it liable for any resulting injuries.”
Many sections of each of these works are devoted to various phases of the subject some of which are cited by counsel on each side.
In Spangler v. Railway Co., 68 Kan. 46, 74 Pac. 607, cited by appellant, the syllabus reads:
-“It is the duty of a railroad company to exercise the strictest diligence to protect passengers on its trains from the misconduct and assaults of fellow passengers, not only while such fellow passengers remain on the train, but also after they have alighted therefrom at the station of their destination, whenever the company knows of the threatened injury, or reasonably might have anticipated that, under all the circumstances, it would occur.”
Appellee also cites the case and attempts to analyze it as not being applicable here. However, after the basic law is established the case must depend upon the facts.
In ruling upon a demurrer to evidence, particularly in a case which depends largely upon the facts, the court must give credence to all the testimony favorable to the plaintiff. It is not entitled to weigh the testimony. This rule is well established in this jurisdiction. We cite only a few of the many cases supporting it. Cain v. Steely, 173 Kan. 866, 252 P. 2d 909; In re Estate of Modlin, 172 Kan. 428, 241 P. 2d 692, p. 434 of the opinion, and authorities there cited.
In ruling upon the demurrer to the evidence in this case the trial court stated its reasons at length. We have examined this statement and think in doing so the court weighed and construed the evidence and failed to give to plaintiff the benefit of the evidence favorable to her. We think the case should be tried and let the jury under proper instructions find the facts. The result is the judgment of the trial court must be reversed. It is so ordered.
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The opinion of the court was delivered by
Smith, J.:
This was an action to recover damages alleged to have been sustained when a car driven by defendant collided with a trailer being towed behind a car driven by plaintiff. Judgment was for plaintiff. Defendant has appealed.
The petition alleged plaintiff was driving north on Highway 75 about 9 o’clock at night; that it was stormy and raining; he was pulling a trailer with tail lights and reflectors turned on; that he saw bright lights on a car approaching from the north, not dimmed, and slowed to a speed of from five to ten miles an hour, and drew closely to the right-hand side of the road; that as the above car was passing, plaintiff’s car was struck from the rear by an automobile owned and operated by defendant, which had been proceeding in a northerly direction, arid had overtaken and struck plaintiff’s vehicle from behind.
The petition further alleged that defendant failed to use due care in the operation of his automobile and was negligent in that he was Raveling at a dangerous and negligent rate of speed, that is, in excess of seventy miles an hour, in dark and stormy weather; that he failed to slacken his speed and get his car under conRol as he approached the oncoming car with bright lights; that he failed to keep a proper lookout; failed to keep his automobile under conRol and failed to avoid sRiking plaintiff.
The peRtion then alleged damages he claimed were proximately caused by the negligence of defendant.
Judgment was prayed in the amount of $5,225.
The defendant’s answer admitted the collision, but denied plaintiff’s Railer was equipped with working lights or reflectors; denied that at the time of the collision plaintiff was driving from five to ten miles per hour, but alleged he had in fact stopped in the middle of the highway; that the place where the plainüff had stopped was on the northerly slope of a hill; denied that the collision and damages were occasioned by any negligence of defendant.
The answer further alleged even though defendant might be deemed negligent, which he denied, plaintiff was guilty of negligence in operating a vehicle on the highway, towing to the rear thereof an unlighted trailer, and stopping the car and unlighted trailer in the traveled portion of the highway and in the path of defendant’s vehicle, which negligence proximately caused and contributed to the collision and resulting damage.
There was also a general denial.
The reply was a general denial of all new matter.
At the close of plaintiff’s evidence defendant demurred to it on the ground that it failed to establish negligent liability sufficient to permit that issue to be submitted to the jury, and upon the further ground it showed plaintiff was guilty of contributory negligence as a matter of law. This demurrer was overruled. The defendant elected to stand on his demurrer and offered no evidence.
The defendant requested the jury be instructed to find for the defendant. This was refused.
The jury was duly instructed and the issues submitted.
Special questions were answered as follows:
“1. Was the collision the result of an accident as- defined in the Court’s instructions? A. Yes.
“2. Did the collision between the vehicles of plaintiff and defendant occur at night when it was so dark that persons and vehicles could not be seen in the absence of lights? A. Yes.
“3. Was visibility reduced and the pavement wet by reason of the weather being rainy? A. Yes.
“4. Was there oncoming traffic immediately prior to the collision proceeding in the opposite direction to plaintiff and defendant with bright lights which tended to reduce the visibility of a driver proceeding in the same direction as plaintiff and defendant? A. Yes.
“5. Was the trailer, which was attached to the plaintiff’s car, equipped with a lighted rear lamp? A. No.
“6. Was the trailer which was attached to the plaintiff’s car equipped with red reflector buttons on the rear end? A. Yes.
“7. Was plaintiff’s car moving forward at the time defendant’s car struck it? A. Yes.
“8. Was plaintiff negligent, contributing proximately to the collision? A. No.
“9. Was defendant guilty of negligence proximately causing the collision? A. Yes.
“10. If you answer the preceding question in the affirmative, state the acts of negligence of which you find the defendant guilty. A. Out of control due to weather conditions.”
A general verdict was returned for plaintiff in the amount of $2,150. . ■'
The defendant filed a motion for judgment notwithstanding the general verdict, and for judgment on the special findings and for a new trial. All these motions were overruled and judgment was entered pursuant to the verdict.
The defendant appealed from the judgment, from the order overruling his motion for judgment notwithstanding the verdict, his motion for judgment on the answers to special questions, and for a new trial.
The specifications of error are the court erred in overruling defendant’s demurrer to the evidence, in overruling his request for special instructions, in overruling his motions for judgment notwithstanding the general verdict, for judgment on the special findings and in rendering judgment for plaintiff.
Defendant first argues the trial court erred in overruling his demurrer to plaintiff’s evidence. He argues the conclusion that the collision was caused by his negligence is not the only reasonable conclusion to be drawn from the evidence. Hence his demurrer should have been sustained.
The cases cited and relied on to sustain this argument are those where we have held negligence may not be based on mere surmise or conjecture. Negligence like any other issue of fact may be proved by circumstantial evidence. (See Brown v. Clark, 152 Kan. 274, 103 P. 2d 907.)
It was the province of the jury to weigh all conflicting evidence and to draw all reasonable conclusions from the evidence offered. (See Brugh v. Albers, 141 Kan. 223, 40 P. 2d 380; Sawhill v. Casualty Reciprocal Exchange, 152 Kan. 735, 107 P. 2d 770; and Briggs v. Burk, 174 Kan. 440, 257 P. 2d 164.)
This is not a complete list by any means. It would add but little to the edification of the readers of this opinion to set out the evidence in detail. However, the facts detailed by the appellant himself clearly show that there was sufficient evidence from which the jury was entitled to conclude that the defendant was driving at a dangerous rate of speed and ran into the rear of plaintiff’s car, due to his failure to keep a proper lookout.
Defendant next argues that Finding No. 8 is contrary to the evidence and should be disregarded. Finding No. 8 was that the plaintiff’s negligence did not contribute proximately to the collision. In connection with this, defendant refers to Question No. 5, which was that the trailer which was attached to plaintiff’s car was not equipped with a rear lamp.
Defendant in his argument on this point does not refer to the answers to Question 6,.which found the trailer was equipped with red reflector buttons on the rear end. We are unable to follow defendant’s argument. Negligence to bar the plaintiff from recovery must contribute to and be the proximate cause of the injury complained of. There is no evidence but that the rear reflector buttons were sufficient warning to drivers approaching from the rear with their car under proper control.
In Wright v. Nat'l Mutual Cas. Co., 155 Kan. 728, 129 P. 2d 271, the defendant, had been found guilty of negligence and failing to have sufficient lights on the rear of .his truck and plaintiff was given judgment. We held:
“It is well settled that where the act found as negligence did not cause the injury complained of there can be no recovery. (Railroad Co. v. Justice, 80 Kan. 10, 101 Pac. 469; Barnhardt Glycerin Co., 113 Kan. 136, 213 Pac. 663.) It is equally well settled that where the absence of lights or signals does not prevent a driver from seeing a vehicle in time to avoid it, the absence of lights or signals cannot be said to be the proximate cause of the collision. (Eldridge v. Sargent, 150 Kan. 824, 830, 96 P. 2d 870, and authorities there cited.)”
Defendant next argues the court erred in overruling his motion for judgment on the special findings notwithstanding the general verdict.
The defendant argues under this, first that the jury found the collision was the result of an accident as defined in the court’s instructions. The court instructed the jury as follows:
“You are instructed that in the ordinary walks of life injury and damage often occur to persons and property which cannot be traced to the fault or negligence of anyone, but is the result of a mere accident, for which no one is responsible and for which no one can be held liable, and the person suffering loss or damage by mere accident is without remedy and must bear the loss. So, in this case, if you find that in the incident in question the parties are not guilty of any fault or wrong, and that injury or damage, if any, sustained by them was the result of a mere accident, then they are without remedy and cannot recover in this action, and your verdict in that event should be for the defendant.”
Defendant argues that since the jury found the collision to be the result of an accident as defined by the court’s instructions after having been given the above instruction, then it follows the jury believed, in answering that question, that the injury and damage could not be traced to the fault of negligence of anyone. He relies on cases where we have held where the finding of the jury acquitted the defendant of all acts of negligence, the plaintiff could not recover. In examining — Were the special findings consistent with each other and consistent with the general verdict? in Eldridge v. Kansas City Public Service Co., 175 Kan. 879, 267 P. 2d 923, we said:
“Special questions are not to be used for the purpose of entrapping an unwary jury nor is a jury held to the strict definition and application of terms, words and phrases, to which a skilled, specially trained group of experts would be held.”
(See, also, Darbe v. Crystal Ice & Fuel Co., 132 Kan. 640, 296 Pac. 705; and Torpey v. Kansas City Public Ser. Co., 149 Kan. 735, 89 P. 2d 899.-)
The jury was told in this case in the instructions what would constitute- a “mere” accident. In the findings they were asked whether the collision was an accident. The argument of defendant would be more forceful if the instructions had used “unavoidable” or had included “mere” in the question. It is well known that “accident” is the word used by people generally in referring to violent or unusual happenings between people. This answer is not entitled to the weight for which appellant argues.
The jury went ahead and found the defendant to be guilty of negligence and that the plaintiff was not guilty. There was ample evidence to support both findings.
The judgment of the trial court is affirmed.
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The opinion of the court was delivered-by
Smith, J.:
This was an action on thirty-four promissory notes. The appeal is from an order overruling plaintiff’s demurrer to defendant’s answer.
The petition alleged the execution and delivery by defendant of two promissory notes on or about December 15, 1947, in the sum of $75 each, whereby he agreed to pay plaintiff on demand that sum, with interest at three percent per annum, payable monthly, until paid; that thereafter plaintiff received credits on October 30, 1941, in the amount of $53.93 and $55.91 to apply on such obligations respectively. Copies of these two notes were attached. The petition further alleged that thereafter defendant executed thirty identical notes, two each month, the last two on August 31, 1948; that plaintiff was the owner and holder of these notes and there was due and owing it the sum of $2,630.96, for which amount judgment was prayed. Two of these notes were attached with the endorsement on the back. They were in form as follows:
Exhibit “1”
$75.00 Dated: Dec. 15, 1947
On demand, I promise to pay to the order of
Bankers Life Insurance Company of Nebraska
The sum of Seventy-five & no/100..............................Dollars, payable at Lincoln, Nebraska, for value received, with interest at the/ate of 3% per annum, payable monthly, from date until paid.
Signed: Harold J. Litsey
Address: 209 Hoke Bldg.
Hutchinson, Kansas
Form 123
REVERSE SIDE OF NOTE
$44.74 cr. 10/30/51
11.19 cr. 10/30/51
To this petition the defendant leveled a motion to order the plaintiff to make the petition more definite and certain by setting out the credits allowed the defendant and if they were taken from a ledger belonging to defendant to incorporate them in the petition. This motion was overruled.
In his answer the defendant admitted the giving of the notes but denied that they were demand notes, and alleged they were notes payable out of funds which were owed defendant by the plaintiff, or which might become due him and the defendant because of an agency contract between himself and plaintiff. Copies of these contracts were attached to the answer. The answer further alleged if the notes were payable on demand, the plaintiff was estopped by reason of its action in accepting payment under the agency contract.
The two agency contracts were in the form of letters addressed to. defendant by plaintiff. Exhibit “A” was under the date of June 2, 1947. In it the plaintiff advised defendant that in order .to assist him to become established as an agent of the company it was proposed to continue to loan him $150 a month at semi-monthly intervals, commencing June 1, and continuing for a three-months period and longer, if his progress warranted.' It recited defendant agreed to accept a paid production objective of $60,000 from June 1 to August 31, then followed some provisions as to how this production should be calculated. The letter then contained paragraphs as follows:
“You are to execute promissory notes covering the amount of each check forwarded to you indicating your acknowledgment of the indebtedness so created and returning said notes to your General Agent.
“It is agreed that if you succeed iri establishing $60,000 of new paid business during the period mentioned above, the Notes you have executed will be returned to you marked PAID.
“The Company will return all earnings accruing to you on business produced during the period mentioned above and preceding financing periods until the aggregate amount of all moneys loaned to you has been offset by accruing earnings. All earnings in excess of the aggregate amount of such loans will be paid to you. You will remit all premiums in gross.
“It is also agreed that any unpaid balance of notes held by the Company, as the result of loans made to you during the previous financing period or periods, may be liquidated by applying the excess paid production in the current accounting period from June 1st to August 31st and also any subsequent accounting period at the rate .of $15.00 per thousand of principal sum and $4.50 per thousand for the Family Income additional benefit.
“Further, it is understood and agreed that the continuation of this financial assistance is dependant upon satisfactory performance and co-operation on your part, and the right is reserved to terminate the advances before the period expires, if the Company determines it is in your or its best interest to do so.”
Exhibit “B” bore the date of August 19, 1948. It was to about the same effect.
In July, 1952, plaintiff filed a motion for judgment on the pleadings. This motion was denied. The plaintiff then filed a motion requesting the trial court to fix a time and place for a pre-trial conference for the purpose of simplification of the issues, the necessity of amendments to the pleadings and the possibility of obtaining admissions of fact and of documents which would avoid unnecessary proof.
At this conference the plaintiff produced the notes. It was stipulated that notes offered by plaintiff with all the credits thereon endorsed thereon, as admitted by the answer to have been executed by the defendant, were received as evidence.
Subsequently the defendant filed an amended answer, substantially as the original answer, with the addition of a paragraph wherein defendant alleged that at the time of the execution of the notes plaintiff and defendant orally agreed that if the relationship did terminate, the defendant would not be liable on the notes, it being understood that any moneys which plaintiff might receive in satisfaction of the notes were to come solely from commissions the defendant might earn while working as an agent for plaintiff.
Plaintiff filed a motion to strike from this amended answer the allegation the notes were not demand notes, and the new matter setting up the oral contract. This motion was overruled. Thereupon the plaintiff demurred to the answer on the ground that it did not state facts sufficient to constitute a defense to plaintiff’s petition. This demurrer was overruled — hence this appeal.
The notice of appeal was filed on August 18, 1953, from the order overruling plaintiff’s demurrer to defendant’s answer on August 10, 1953, from the order of June 27, 1953, overruling plaintiff’s motion to strike matter from defendant’s answer, from the order of August 19, 1952, overruling plaintiff’s motion for judgment on the pleadings and from all adverse rulings against plaintiff.
The specifications of error were along the line of the notice of appeal.
The plaintiff argues the answer pleads conclusions that should have been stricken. We are unable to follow the argument of plain tiff in this respect. It is true the trial court overruled the motion of plaintiff to strike certain conclusions. This same legal question was again raised by plaintiff’s motion for judgment on the pleadings and its demurrer to the answer.
The burden of plaintiff’s argument is that the defendant could not plead contracts entered into contemporaneously with the notes between the same parties. This is not the law. This action was between the original parties to the notes. G. S. 1949, 52-216, provides in part:
“Every contract on a negotiable instrument is incomplete and revocable until delivery of the instrument for the purpose of giving effect thereto. -As between immediate parties, and as regards a remote party other than a holder in due course, the delivery, in order to be effectual, must be made either by or under the authority of the party making, drawing, accepting, or endorsing, as the case may be; and in such case the delivery may be shown to have been conditional, or for a special purpose only, and not for the purpose of transferring the property in the instrument. . . .”
(See Greenleaf State Bank v. Monteith, 173 Kan. 799, 252 P. 2d 621, and cases there cited and discussed.)
The defendant in his answer alleged the notes were not due and payable when the action was brought and to substantiate that allegation attached the two contracts between the same parties in which reference was made to the notes. There was no motion to make this answer more definite and certain. Hence it must be liberally construed in favor of the pleader. These contracts were subject-to a construction that at least renders it uncertain as to how much the indebtedness of defendant was on these notes. What issue, if any, the plaintiff could raise by means of a reply or what the evidence will disclose as to the entire course of dealing between the parties is not for us to pass on now. Under the authorities already quoted, it was proper for the defendant to plead where the action is between the original parties to the notes the oral contract that the defendant would not be liable on the notes if the business relationship between the parties should terminate. (See above authorities.)
The judgment of the trial court is affirmed.
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The opinion of the court was delivered by
Thiele, J.:
Plaintiff commenced this action to quiet its title to the small tract of real estate later mentioned. The defendants filed their answer. and cross petition in which they sought to quiet their title and to recover a money judgment. The trial resulted in a judgment quieting title in the defendants and the plaintiff appeals.
Although there is some slight discrepancy in north and south distances as noted on a plat attached to the abstract, it discloses generally that Lot 85 on Merchant street in the city of Emporia is 50 feet wide north and south and 140 feet long east and west, and that immediately to the south is Lot 83 which is also 140 feet long and is 50 feet wide fronting on Merchant street; that to the west of both lots is a north and south alley and from that alley another alley 10 (or possibly 11) feet wide extends east along the south side of Lot 83 to a point 50 feet west of the east line of the lot and in such manner that the west 90 feet of Lot 83 is 40 (or possibly 39) feet wide.
In its original petition the plaintiff alleged it was the owner of and in possession of a tract commencing 50 feet west of the southeast corner of Lot 83; thence north 26 feet 7/2 inches; thence west 5 feet 4 inches; thence south 7 feet 9 inches; thence west 5 inches; thence south 18 feet 10K inches; thence east 5 feet 9 inches, and that it had been in the actual, open, visible, notorious, hostile, exclusive, uninterrupted, adverse possession thereof under claim of ownership for more than fifteen years last past; that defendants claimed some estate in that real estate the nature of which was unknown to plaintiff and plaintiff was entitled to have its title quieted against that claim, and it prayed accordingly. It is here noted that the south 10 (possibly 11) feet of the above described tract lies in the east and west alley above mentioned. At the beginning of the trial plaintiff amended its petition to describe a tract commencing 50 feet west and 11 feet north of the southeast corner of Lot 83; thence north 10 feet 6 inches; thence west 5 feet 6 inches; thence south 10 feet 6 inches; thence east 5 feet 6 inches.
The answer of defendants consisted of a general denial and an allegation they were the owners and in possession of a part of Lots 83 and 85 described as commencing at a point 50 feet west of the northeast corner of Lot 85; thence west 26 feet; thence south 89 feet; thence east 26 feet; thence north 89 feet to the place of beginning, and had been in possession since April 16,1949, and have each and every right, privilege and appurtenance thereto appertaining including the reservation set out and contained in a certain deed dated April 2, 1923, from Robert L. Jones and wife who were the owners of the real estate which lies immediately to the east of the tract owned by the defendants, the reservation reading as follows:
“And said parties o£ the first part hereby save, except and reserve to themselves, their heirs, legal representatives or assigns, the full right to at any time attach to the North eighty-three feet of the West wall of the building now on the granted, premises, such one or two story building as the first parties, their heirs or assigns may hereafter construct on lands adjoining the granted premises on the west. Said right being to fully attach and connect any such one or two story building to any' building now or thereafter on the granted premises, including the right to close any openings in said west wall, all without further or other consideration or compensation to the grantee herein.
“In the event of the reconstruction of the west wall of the present building on the granted premises, the rights hereby excepted or reserved shall pertain in like manner to any new or reconstructed west wall.”
And they alleged that by reason thereof they were not only owners of the tract conveyed to them but of a valuable right by way of easement running with the lands to at any time in the future use the brick wall along their east boundary, which right had not been changed, modified or altered by the former owners of the real estate nor by these defendants; that drey and their predecessors paid the taxes upon the real estate during all of said period of time and have claimed full title and ownership; and that no one on behalf of plaintiff claimed any' right, title, interest, lien or easement upon the real estate purchased and owned by defendants and they prayed that plaintiff take nothing and that their title should be quieted. In their cross petition, defendants alleged that about the time they purchased they demanded that plaintiff remove certain property from the involved tract or pay rent for the use thereof; that plaintiff’s property had not been removed and defendants were entitled to rents for which they prayed.
The plaintiff’s reply to the defendants’ answer denied that defendants had any right in its west wall; that it had been in adverse possession of the wall, and in the event the reservation created a valuable right in defendants it had been lost by reason of plaintiff’s adverse possession. Its answer to the defendants’ cross petition was a general denial.
The trial resulted in a judgment denying plaintiff any relief under its petition, and quieting the title of the defendants, whose claim for a judgment for rents was denied. Plaintiff’s motion for a new trial was denied and it perfected its appeal to this court.
Appellant contends that the judgment denying it relief was contrary to the evidence and to the law applicable. Consideration of the contention compels a review of the evidence.
As disclosed by the abstract and counter abstract, supplemented by statements included in the briefs for both parties, and concerning which statements there is no particular dispute of fact the following appears: The Kansas Electric Power Company which was the predecessor in title and interest of the present appellant prior to July, 1949, acquired title to the east fifty feet of Lots 83 and 85 by warranty deed from Electric Office Realty Company, dated July 31, 1925, the deed incorporating as part thereof certain reservations contained in a deed from Robert L. Jones and his wife to one T. T. Parker dated April 2, 1923, including the reservation quoted above. About 1924 the company or a predecessor in title caused to be erected a building covering all of the above described real estate, and at the same time excavated down to its basement level a strip about 5 feet 6 inches wide east and west and about 21 feet 6 inches long north and south and extending north from the south line of the east and west alley and immediately west of the west line of the fifty feet conveyed as above stated. This strip occupied about 10 or 11 feet of the alley and the land now involved. Concrete walls were installed and carried upward about two and one-half or three feet above ground level. A slab was constructed over the top equipped with doors and apparatus to raise and lower goods from and to the basement level by use of a freight elevator in the basement. When constructed there were doors permitting entrance to the first floor of appellant’s building. About 1948 the doors to the first floor were altered and closed and in more recent years the top of the dock on the involved real estate has in part been used to hold a trash receptacle and some air conditioning equipment of appellant. In a negative way it may be stated here there was no evidence that any predecessor in title or interest of the appellant ever had any record title to the involved real estate, and if there ever was any oral or written agreement between it and the owner of the real estate on the south for the use thereof, none was shown. A number of witnesses testified as to the use of the dock. One said it was constructed in 1924 and was used for loading and unloading into the building; that it was a regular occurrence, and the use of the dock was not shared with anyone else; that at the time of the trial an air conditioning unit about six feet square and a trash box were located on the dock, which was about three feet high; that Robert L. Jones, an attorney and abstracter in Emporia, was the owner of appellees’ land until he sold it to them. Another witness testified he was an employee of appellant and had worked in the material room “by the dock,” had charge of merchandise and electrical equipment loaded and unloaded on it; that there were drains, sewer and gas pipes in the basement; that he saw the dock recently and it was in the same condition as before, and, in his opinion, the dock and the area under it were all constructed at the same time. Other testimony of this kind need not be reviewed. The appellees’ demurrer to appellant’s evidence was overruled.
Appellee John Waters testified in his own behalf that he owned the tract lying west of appellant’s building since April, 1949, and had been in possession since; that there is a restaurant at the northeast corner of his tract tied into the wall of appellant’s building and extending back 30 to 32 feet (there is no evidence as to when the restaurant building was constructed); that when he purchased there was no exception as to the dock; that so far as he knew no one claimed it. In answer to a question asked on direct examination as to when he first learned that the appellant was using a part of the land (dock) he answered that he knew it before he bought the land and after he bought he went and talked with Peterson, the appellant’s division manager, and asked if the air conditioner was on appellees’ property he wanted it moved or to be paid rental. In a later conversation he made no demand for rent. He did not hear from Peterson any more until he was served with summons. He also testified as to paying taxes on the entire tract purchased by him. On cross examination he testified about owning a part of Lots 85 and 83 abutting the north and south alley to the west and building a garage thereon in 1946, and when he purchased the 26 x 89 tract in 1949 he understood the south line was the same as the garage property immediately to the west (north line of east and west alley); that he did not use the alley much; that he had noticed the dock and knew that the north end of it was north of the back end of his garage, and that when he purchased the 26-foot strip he knew the dock was on it and had been on it since 1946; that he never used the dock and knew the appellant did. In a colloquy between court and counsel, appellant did not admit appellees had paid taxes on the dock, the court inquired if it had been taxed separately and counsel for appellant said '“I think not.” In answer to a question by the court that no one paid taxes on the dock counsel answered that the building had been taxed and the dock was part of the building. Then the court stated that unless it could be agreed on probably “we” should have the records. The record discloses no agreement nor any further evidence on the point. Appellees’ only other witness was the register of deeds who produced the record of the deed containing the reservation above mentioned.
Appellant’s contention is that the evidence discloses no dispute as to the facts and the question is whether the legal effect has been properly declared, and that under the undisputed evidence it acquired title by adverse possession. Appellees, however, contend that the trial court had the duty of drawing reasonable inferences and conclusions from the proven facts (e. g. Brothers v. Adams, 152 Kan. 675, 107 P. 2d 757); that if different minds may reasonably come to different conclusions, the findings of the triers of fact are conclusive on appeal (e. g. Bentley v. Keegan, 109 Kan. 762, 202 Pac. 70); and that the controlling question is whether there was sufficient evidence to support the judgment (e. g. Tucker v. Hankey, 173 Kan. 593, 250 P. 2d 784).
In a preliminary way it may be noted that this is not a case of location of a boundary line or mistaken belief as to its location and authorities cited on that phase of adverse possession need not be reviewed. There is no evidence but that the parties interested at the particular times involved knew exactly where the west line of the east fifty feet of Lots 83 and 85 was and is. While the abstracts contain no specific evidence as to the chain of title to any of the real estate involved, in the only deed received in evidence, being one dated July 31, 1925, from Electric Office Realty Company to Kansas Electric Power Company conveying the last above described lands, which deed contains recital of the reservation above set forth, it is recited also that the real estate was conveyed by Robert L. Jones and wife to T. T. Parker by deed dated April 2, 1923, and that it is the same premises conveyed by Albert Emanuel and wife to the grantor by deed dated June 11,1923. The deed and the record as abstracted are silent as to any conveyance from Parker to Emanuel.
It is further noted the evidence discloses without dispute that the dock and the structures and excavation under it were constructed and made on the presently involved land and a portion of the abutting alley in 1924, and that the dock and the uses made of it were entirely visible from the outside of the building to which it was attached and to which it afforded entrance. And it may also be stated that if adverse possession by the appellant obtains here it commenced in 1924 and was completed, insofar as the statute of limitations is concerned, in 1939 and that there is no evidence that anyone disputed whatever right, title and interest or claim of ownership the present owner or its immediate predecessor in title had, until appellee John Waters questioned it in 1948. The evidence shows without dispute that appellee Waters knew of the presence and use of the dock as early as 1946 and that when he purchased the 89x26 foot tract, described in his answer, in 1948, he made no inquiry of the appellant as to its right, title, interest or claim of ownership in the dock or the real estate on which it was constructed and did not do so until after he had acquired title to the 89x26 foot tract. The question then is did the appellant or its predecessor in title acquire ownership of the land in dispute by adverse possession commencing in 1924.
Appellant's argument that it had acquired title by adverse possession runs that such possession may be established independently of title conferred by written instrument or otherwise, so long as its possession was adverse and hostile (Casner v. Common School District No. 7, 175 Kan. 551, 265 P. 2d 1027); that there is and was no mistake as to boundary lines; that adverse possession is a matter of intention, which need not have been manifested by words of mouth, but by the acts done; that to constitute adverse possession the acts done must be such as to give unequivocal notice of the claim to the land, adverse to the claim of all others and of such character and so openly done that the real owner will be presumed to know that the possession taken is adverse to his title (Tucker v. Hankey, 173 Kan. 593, 250 P. 2d 784, and cases cited); that the act of itself or its predecessor in 1924 in taking possession and in making the improvement on land to which it had no title was necessarily hostile fo the true owner and its continued, undisputed possession thereafter was adverse, and its title had ripened before the present appellees raised any question as to its ownership and under such circumstances the trial court erred in denying it the relief for which it prayed. As above indicated appellees contend the trial court had the duty of drawing reasonable inferences from the evidence, and having done so its conclusion is controlling. The general correctness of that rule need not be debated, but it is not to be interpreted as holding the trial court may draw inferences from matters as to which the evidence is silent or contrary to the evidence received. As appellees point out, the trial court was not requested to make conclusions of fact and of law, under G. S. 1949, 60-2921, and it did not do so. We have before us only the judgment and what inheres in it. Discussion as to the evidence and inferences and conclusions to be drawn therefrom cannot be divorced from the question whether there was evidence that appellant’s possession was adverse. Appellees contend the evidence and the inferences and conclusions to be drawn therefrom warrant the judgment rendered.
With reference to whether the possession of appellant and its predecessor in title was adverse, appellees point out that appellant-accepted a deed, made after the dock had been constructed, which not only did not pretend to convey the land on which the dock was constructed, but did contain the reservation as to the right of the owner on the west to attach to and use the north 83 feet of the wall. Factually the south end of the 83 feet would overlap the north end of the dock to the extent of about 4 feet 6 inches, but otherwise the reservation did not affect the dock. Appellees also contend that the presumption is that the possession of real estate is in subordination to the true title and that when appellant entered into possession under its deed it is presumed that it claimed only the title given it by its deed, citing Edwards v. Fleming, 83 Kan. 653, 112 Pac. 836. We need not debate that those presumptions obtain, but they are presumptions only and may. be overcome by proof.
The dock had been constructed and was in use before appellant took title. Whatever may have been the situation as to title when the dock was built, it was being used as an appurtenance to the building at the time appellant’s predecessor received the deed of July 31, 1925, .for the real estate on which the building stood. The deed contained the usual language that the grantee was to have and to hold all and singular the tenements, hereditaments and appurtenances belonging to the property conveyed. But the situation presented by the evidence is that whether it be considered the appellant’s predecessor, by reason of the description, received no title to the dock, or that by reason of the provisions as to appurtenances that it did, the appellant’s predecessor did take possession of the dock and openly use it for its own purposes and to the exclusion of others from 1925 on. No one questioned its right until appellees did so in 1948. Whether made under title or under no title at all, appellant’s predecessor made entry in 1924, constructed improvements, held the same for its sole use and benefit and was in open and notorious possession. The evidence is that no one other than the appellant and its predecessors used the dock and that the use of the land on which the dock was situated was adverse to the true owner seems to be the only conclusion that can be drawn.
Appellees couple an argument that a plausible conclusion the use of the dock was permissive from the fact the south portion was constructed in a public alley with one that the evidence as to what uses were made of the area below the top of the dock is of little value because there is no showing the owner of the land on which it was situated had any knowledge or information as to such uses. We do not put any weight thereon but it seems that if the appellant and its predecessor would knowingly build a dock in a public place where, so far as the record shows, it had no right to do so (see e. g. G. S. 1949, 14-424) by the same token they would not hesitate to appropriate adjoining lands, privately owned, to their own use. The dock itself was two and a half to three feet in the air. Doors for loading and unloading were placed in the top; loading and unloading took place from 1924 on; all was clearly visible, and that the land on which the dock stood was appropriated to the use of appellant and its predecessor stands out clearly in the evidence. The fact the owner of the adjoining property did not know each and every use made of the area below the dock is not of consequence; it was not necessary that the adjoining owner know of every use that was made of the involved area.
As has been stated, there was no evidence that appellant and its predecessors used the land involved under any permission from or arrangement with the owner of the adjoining real estate leading to any conclusion that they had only a limited right, and the trial court was not nor is this court warranted in assuming there must have been some sort of understanding between appellant’s and appellees’ predecessors in title at the time the dock was constructed or thereafter.
Laying to one side any conjecture or surmise as to what may have lead up to its doing so as justification therefor, the record in this case discloses that without any right or title thereto of any kind or character, and against any title or right of the owner thereof, a predecessor in title of the appellant entered upon and took possession of the involved real estate, made lasting, valuable and visible improvements thereon and since then it and its successors continued in sole possession and used the same for their own purposes against and to the exclusion of the one holding the record title for a period in excess of fifteen years and obtained title by adverse possession.
The judgment of the trial court is reversed and the cause remanded with instructions to render judgment quieting the title of the plaintiff appellant. .
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