State v. Bell

• Citation: 469 P.2d 448,205 Kan. 380
• Decision Date: 09 May 1970
• Docket Number: No. 45662,45662
• Parties: STATE of Kansas, Appellee, v. Robert L. BELL, Appellant.
• Court: United States State Supreme Court of Kansas

Page 448

469 P.2d 448

205 Kan. 380

STATE of Kansas, Appellee, v. Robert L. BELL, Appellant.

No. 45662.

Supreme Court of Kansas.

May 9, 1970.

Rehearing Denied June 17, 1970.

Syllabus by the Court

1. An information may be amended in a matter of substance of form without leave of court at any time before the defendant pleads. (K.S.A. 62-808)

2. When the defendant and his attorney consent to amendment of the information after arraignment and before trial defendant cannot complain of the amendment on appeal.

3. The purpose of requiring notice to the defendant on invoking the habitual criminal statute (K.S.A. 21-107a) is to afford defendant ample time to prepare his defense. When there is nothing in the record on appeal to show prejudice five days are sufficient and reasonable notice to the defendant.

4. The seizure of a pistol from the back seat of an automobile is held reasonable and necessary for the protection of an officer and others in order to neutralize the threat of harm which it posed.

5. Various objections to the imposition of an enhanced penalty under the habitual criminal act are examined and it is held the sentence imposed under K.S.A. 21-107a for a third conviction of felony was proper.

John C. Humpage, of Humpage & Stewart, Topeka, argued the cause and was on the brief for appellant.

Harland K. Rieger, Asst. County Atty., argued the cause, and Kent Firzzell, Atty. Gen., and Gene M. Olander, County Atty., were with him on the brief for appellee.

FROMME, Justice.

Robert L. Bell was tried by a jury and convicted of the unlawful possession of a pistol after having been previously convicted of burglary. (K.S.A. 21-2611) He was sentenced to the penitentiary for a term of not less than fifteen (15) years under the provisions of K.S.A. 21-107a (the habitual criminal statute). Various specifications of error have been raised on this appeal.

The information originally filed in the district court charged defendant with the unlawful possession of a certain pistol after 'having been previously convicted of grand larceny, forgery, and burglary'. A conviction of forgery is not one of those crimes specified in K.S.A. 21-2611 (the firearms statute) which makes possession of a pistol unlawful. The state on motion was permitted to strike the word 'forgery' from the information prior to arraignment.

The defendant claims error because of this delection and contends if the forgery conviction had remained in the information it would have been used as an element of the crime charged and could not have been used to invoke the habitual criminal statute. In support of this contention he cites State v. Ware, 201 Kan. 563, 442 P.2d 9.

The crime of forgery cannot be used as an element of the crime charged. It is not one of those crimes listed in K.S.A. 21-2611. It was mere surplusage in the information. In addition the deletion occurred prior to arrainment. An information may be amended in a matter of substance or form without leave of court at any time before the defendant pleads. (K.S.A. 62-808) It was not error to permit this amendment.

After arraignment and before trial the words 'grand larceny' were also deleted from the information and defendant asserts the same claim of error with respect thereto.

This deletion occurred after the trial court had questioned the parties as to the advisability of having more than one such crime set forth in the information. The court stated:

'* * * I think we have a problem here, at least the Court on its own motion feels there is a problem, that if there is sufficient evidence and there is no dispute that the defendant had been convicted of at least one felony within the purview of the Statutes, then I think the Court would consider not admitting any subsequent or other felonies because the only reason the jury can hear about prior convictions is because it is an element of the crime charged. * * * (A)t least I would feel to be prejudicial to the defendant for the State to prove more than one felony. In other words, to show to the jury that this man has had more than one felony, therefore he should be punished regardless of the offense involved. * * *'

The state then advised court and counsel that if defendant would admit and stipulate to the burglary conviction the grand larceny conviction could be struck from the information. The attorneys agreed to this procedure and the court specifically questioned the defendant, Bell, about the matter. In response to the court's questions Bell stated he understood what was proposed and indicated this was agreeable to him. He stated he understood this would mean he was admitting that he had been previously convicted of burglary as indicated by the journal entry before the court and that the grand larceny charge would be deleted from the information. The grand larceny conviction was deleted from the information. The trial was held thereafter and defendant was convicted.

When the defendant and his attorney consent to amendment of the information after arraignment but before trial defendant cannot complain of the amendment on appeal. (State v. Ward, 198 Kan. 61, 65, 422 P.2d 961; State v. Allen, 163 Kan. 374, 183 P.2d 458.) The original information was valid on its face. The court had jurisdiction of the offense and the defendant. A deletion of surplus words from an information does not substantially change the nature of the charge when there is sufficient matter alleged to indicate the crime and the person charged. (See K.S.A. 62-1011 Sixth.)

The defendant next contends that the habitual criminal statute (K.S.A. 21-107a) may not be used to enhance the penalty provided for the unlawful possession of a pistol by K.S.A. 21-2611. This argument is based upon what the defendant says is the apparent intention of the legislature to make the possession of a pistol a felony punishable by imprisonment not to exceed five years when conviction is subsequent to convictions for one of all of the offenses enumerated in the firearms statute.

Although the latter statute was passed some twenty-eight years after the habitual criminal statute we cannot agree with defendant's contention. It is not apparent to us that the legislature intended partial repeal of the habitual criminal statute when it passed the firearms statute. Repeal by implication is not favored in this state. (McCall v. Goode, 168 Kan. 361, 212 P.2d 209; State v. Ricks, 173 Kan. 660, 662, 250 P.2d 773.) Somewhat similar arguments have been rejected in State v. O'Connor, 186 Kan. 718, 720, 353 P.2d 214 and in State v. Wood, 190 Kan. 778, 792, 378 P.2d 536. The case annotations appearing under K.S.A. 1969 Supp. 21-2611 list many cases decided by this court where convictions under the firearms statute have been upheld and the enhanced penalty provided by K.S.A. 21-107a has been approved. This contention of the defendant is without merit.

The defendant was first notified of the state's intention to invoke the habitual criminal statute on February 14. This was just prior to the court's order overruling the motion for a new trial. The sentencing proceedings were held on February 19 and 20. The defendant argues this did not afford him sufficient time and it denied him due process of law under the United States Constitution. He does not point out why he needed more than the five days which intervened to prepare his defense against these prior felony convictions.

The purpose of requiring notice to the defendant on invoking the habitual criminal statute is to afford defendant ample time to prepare his defense. When there is nothing in the record on appeal to show prejudice five days are sufficient and reasonable notice to the defendant. (State v. Cruitt, 200 Kan. 372, 379, 436 P.2d 870.) A period of four days has been found ample to prepare such a defense. (State v. Peterson, 198 Kan. 239, 241, 424 P.2d 552.)

Defendant further contends he was denied due process and equal protection of the laws because the notice was not served upon him until after he had filed a motion for new trial. He argues it was then too late too include the error in his motion for new trial and present it to the trial court.

Such argument might have merit if the procedure followed by the state precluded defendant from raising the question of error on appeal. However, under Rule No. 17 of the Rules of the Supreme Court (203 Kan. xxxiv) trial errors may be specified for review in a criminal appeal regardless of whether a motion for a new trial has been filed. It is no longer necessary to specify the order overruling a motion for new trial in the specifications of error to...