State v. Arnold, 48,801

• Decision Date: 01 April 1978
• Docket Number: No. 48,801,48,801
• Citation: 223 Kan. 715,576 P.2d 651
• Parties: STATE of Kansas, Appellee, v. Verlie ARNOLD, Jr., Appellant.
• Court: Kansas Supreme Court

Page 651

576 P.2d 651

223 Kan. 715

STATE of Kansas, Appellee, v. Verlie ARNOLD, Jr., Appellant.

No. 48,801.

Supreme Court of Kansas.

April 1, 1978.

Syllabus by the Court

1. A lesser offense is considered a lesser included offense under K.S.A. 21-3107(2)(d ) when all elements necessary to prove the lesser offense are present to establish the elements of the greater offense.

2. If the lesser offense requires proof of an element not necessary in the greater, it is not a lesser included offense and the court should not give an instruction on the lesser offense. (Following State v. Daniels, 223 Kan. 266, 573 P.2d 607.)

Patrick L. Dougherty, Wichita, argued the cause, and was on the brief for appellant.

Stephen M. Joseph, Asst. Dist. Atty., and Curt T. Schneider, Atty. Gen., Vern Miller, Dist. Atty., Stuart W. Gribble and Nola Tedesco Moore, Asst. Dist. Attys., were with him on the brief for appellee.

SCHROEDER, Chief Justice:

This is a review of the judgment of the Court of Appeals entered in State v. Arnold, 1 Kan.App.2d 642, 573 P.2d 1087.

The sole issue raised in this appeal is whether the trial court erred in refusing to instruct on the offense of battery as a lesser included offense of attempted rape.

The facts are fully stated in the Court of Appeals opinion written by Chief Judge Harman. The Court of Appeals held: (1) there was sufficient evidence on intent to rape; (2) defendant's trousers were properly admitted in evidence; (3) an instruction on circumstantial evidence was not necessary and (4) the trial court erred in not submitting an instruction on the lesser offense of battery. We will discuss here only those facts necessary for a determination of the issue appealed to this court.

The information charged the following:

" . . . VERLIE ARNOLD, JR., did then and there unlawfully, wilfully toward the perpetration of the crime of Rape, as defined by K.S.A. 21-3502, commit the following overt act, to-wit: knocked (the victim) to the ground and got on top of her, with the intention to commit said crime, and the said VERLIE ARNOLD, JR. failed in the perpretation (sic ) thereof and was prevented and intercepted in executing said crime by a Security Officer of Wichita State University; . . . "

The Court of Appeals held that the above information charged a battery, and that the evidence at trial revealed that offense so the trial court should have instructed on battery under K.S.A. 21-3107(2)(d ). We disagree.

K.S.A. 21-3107(2) provides:

"Upon prosecution for a crime, the defendant may be convicted of either the crime charged or an included crime, but not both. An included crime may be any of the following: (a ) A lesser degree of the same crime;

"(b ) An attempt to commit the crime charged;

"(c ) An attempt to commit a lesser degree of the crime charged; or

"(d ) A crime necessarily proved if the crime charged were proved."

Lesser included offenses fall into three categories under our statute. The first is the offense which is merely a lower degree of the offense charged or subparagraph (a ) under the statute. The second category is the attempt as a lesser included offense or subparagraphs (b ) and (c ) under the statute. The third category is the offense which is necessarily committed by the defendant in perpetrating the crime charged or subparagraph (d ) under the statute. Under this section it is impossible to commit the greater offense without first having committed the lesser offense. The offense must not require some additional element which is not needed to constitute the greater offense. In other words, there must be "identity of elements." (See Note, " The Doctrine of Lesser Included Offenses in Kansas," 15 Washburn ...