State v. McDonald, 48673
| Decision Date | 11 June 1977 |
| Docket Number | No. 48673,48673 |
| Citation | 565 P.2d 267,222 Kan. 494 |
| Parties | STATE of Kansas, Appellee, v. Lewis McDONALD, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
In an appeal from a conviction of battery against a law enforcement officer, the record is examined and it is held : (1) a part-time policeman, on duty and in full uniform, is a "law enforcement officer"; (2) that such officer was originally employed by the chief of police rather than the city manager is immaterial; (3) that the trial court did not err in refusing to admit into evidence a portion of a learned treatise where its reliability was not established; (4) that the trial court did not err in refusing to give the jury an instruction on involuntary intoxication; and (5) that the trial court abused its discretion in refusing to permit counsel to interview jurors after the conclusion of trial, under the circumstances disclosed by the record.
B. A. Lightfoot, Jetmore, argued the cause, and was on the brief for appellant.
Jerry G. Larson, County Atty., argued the cause, and Curt T. Schneider, Atty. Gen., was with him on the brief for appellee.
Lewis McDonald brings this appeal from the Pawnee District Court where he was convicted of battery against a law enforcement officer, Dennis Hunt, in violation of K.S.A. 21-3413. He was sentenced to six months in jail and a fine of $500.
McDonald contends that the evidence establishes as a matter of law and fact that Hunt was not a "law enforcement officer" and that the court erred (1) in refusing to receive a "learned treatise" in evidence; (2) in refusing to give the jury an instruction on involuntary intoxication; (3) in denying defendant's motion for a new trial on the grounds of prejudicial pretrial publicity; and (4) in refusing to permit counsel to make inquiry of the jurors with respect to prejudicial pretrial publicity.
Hunt, a part-time police officer for the city of Larned, was on duty, working a seven-hour shift, during the early morning hours of February 15, 1976. He was in full uniform. McDonald failed to stop his car at a stop sign. Hunt followed, stopped McDonald, and prepared to write a citation. McDonald got out of his car and threatened Hunt. Hunt sprayed McDonald in the face with Mace. McDonald promptly kicked Hunt in the stomach. It is this kick which forms the basis of the charge.
Defendant contends that because Hunt was only a part-time policeman, he is not a "law enforcement officer." Defendant relies upon the definition contained in K.S.A. 1976 Supp. 74-5602(e ). That statute is a part of the Kansas Law Enforcement Training Center and Advisory Commission Act, K.S.A. 74-5601, et seq., and its application is limited to that act. The controlling statute here is K.S.A. 1976 Supp. 21-3110(10), which defines a law enforcement officer as:
". . . (A)ny person who by virtue of his or her office or public employment is vested by law with a duty to maintain public order or to make arrests for crimes, whether that duty extends to all crimes or is limited to specific crimes."
Defendant also complains that Hunt was originally hired by the chief of police and not by the city manager pursuant to K.S.A. 12-1014. Hunt was wearing a city police uniform and badge; he was driving a city vehicle, ordinarily driven by the city manager; he had been doing this part-time police work for some time; and presumably he was paid by the city. Though his original employment, some months before the incident in question, may have been irregular and not in strict conformity with the cited statute, we have no hesitancy in holding that Hunt was a "law enforcement officer" under the facts before us.
Defendant sought to introduce in evidence a portion of the Merck Manual, but he produced no witnesses to authenticate the manual or attest to its reliability. Apparently the trial judge was not sufficiently familiar with the publication to take judicial notice of it, and he declined to do so.
K.S.A. 60-460 (cc ) provides in substance that statements in published treatises, offered to prove the truth of a matter stated therein, are exceptions to the hearsay rule and may be received in evidence:
". . . (I)f the judge takes judicial notice, or a witness expert in the subject testifies, that the treatise . . . is a reliable authority in the subject."
As we said in Zimmer v. State, 206 Kan. 304, 309, 477 P.2d 971, 977:
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