532 P.2d 1085 (Kan. 1975), 47572, State v. Schoenberger

Docket Nº:47572.
Citation:532 P.2d 1085, 216 Kan. 464
Party Name:The STATE of Kansas, Appellee, v. Jim SCHOENBERGER, Appellant.
Attorney:[6] Thomas C. Boone, of Hays, argued the cause and was on the brief for the appellant. Robert L. Earnest, special assistant county attorney, argued the cause, and Curt T. Schneider, attorney general, and Michael S. Holland, county attorney, were with him in the brief for the appellee.
Case Date:March 01, 1975
Court:Supreme Court of Kansas

Page 1085

532 P.2d 1085 (Kan. 1975)

216 Kan. 464

The STATE of Kansas, Appellee,


Jim SCHOENBERGER, Appellant.

No. 47572.

Supreme Court of Kansas

March 1, 1975

Page 1086

Syllabus by the Court

1. The exclusion of witnesses from the courtroom during the trial of a lawsuit rests within the sound discretion of the trial court.

2. Where a seasonable motion has been made to exclude the witnesses and there are no exigent circumstances necessitating thir presence in the courtroom, we believe the better practice is to sustain the motion.

3. As a general rule it may be said that where the defendant has not retreated from or sought to avoid an affray but has entered into the combat willingly, he is in no position to invoke the doctrine of self defense. However, even where the conflict is mutual an instruction on self defense should be given where it fairly comes within the range of the evidence.

4. An instruction concerning an included offense is required to be given 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 respect thereto.

5. The record is examined in an action in which the defendant was convicted of aggravated assault and for reasons given in the opinion it is held the trial court did not err (1) in overruling a motion to exclude the witnesses from the courtroom, (2) in failing to define the word 'intentionally', (3) in refusing to instruct on self defense and (4) in rejecting a request to give a lesser included offense instruction.

Page 1087

Thomas C. Boone, Hays, argued the cause and was on the brief for appellant.

Robert L. Earnest, Sp. Asst. County Atty., argued the cause, and Curt T. Schneider, Atty. Gen., and Michael S. Holland, County Atty., were with him on the brief for appellee.

FONTRON, Justice:

This appeal emanates from a conviction of aggravated assault under K.S.A. 21-3410 and the imposition of a sentence of from one to ten years.

The incident giving rise to the criminal charge occurred October[216 Kan. 465] 13, 1973, during a street fracas in Russell, Kansas. Two groups were involved, three young black brothers on one side, members of the Murphy family, and the defendant and his friend Leslie Rumback, both white, on the other.

By way of background, the defendant and Rumback had been engaged in working on the defendant's car earlier in the day. After completing the job that evening they purchased a pack of beer and drove into the country to test the car. They returned to Russell somewhere around 10:30. At this time George Murphy, who was sixteen...

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