State v. Baker

• Decision Date: 10 December 1966
• Docket Number: No. 44045,44045
• Citation: 197 Kan. 660,421 P.2d 16
• Parties: STATE of Kansas, Appellee, v. John Edward BAKER, Appellant.
• Court: Kansas Supreme Court

Page 16

421 P.2d 16

197 Kan. 660

STATE of Kansas, Appellee, v. John Edward BAKER, Appellant.

No. 44045.

Supreme Court of Kansas.

Dec. 10, 1966.

Syllabus by the Court

1. The statutes of this state require that the offense charged in an information be stated with such a degree of certainty that the court may pronounce judgment upon conviction.

2. The fact that a breaking and entering must occur in the nighttime makes it an essential element of the offense of burglary in the second degree by the express terms of K.S.A. 21-520, and in order for an accused to be charged with such offense, it is necessary that the allegations of the information include the phrase 'in the nighttime.'

3. A conviction of burglary in the second degree (K.S.A. 21-520) based on an information which fails to allege an essential element of the offense, namely, 'in the nighttime,' is void for lack of jurisdiction of the subject matter, and a judgment rendered pursuant thereto is a nullity.

4. Under an information charging the defendant with burglary, and larceny of property worth more than fifty dollars committed in connection therewith, the defendant's conviction of the offense of grand larceny, supported by substantial, competent evidence, may be sustained, notwithstanding that his conviction on the burglary charge is void.

5. In a criminal action, alleged trial errors not heard or presented at the hearing of a motion for new trial are unavailing on appeal.

6. Specifications of error not included in the grounds for motion for new trial and not called to the trial court's attention cannot be considered on appeal from a conviction in a criminal case.

7. This court will not for the first time consider issues on appeal which have not been presented to the trial court.

8. In an appeal from convictions of the crimes of burglary in the second degree and grand larceny, the record is examined, and for the reasons set forth in the opinion, it is held: (1) the judgment and sentence imposed for the offense of burglary in the second degree is void, and (2) no reversible error being shown regarding the judgment and sentence imposed for the offense of grand larceny, such judgment is affirmed.

Richard G. Rossman, Olathe, argued the cause, and was on briefs for appellant.

James A. Wheeler, Asst. County Atty., argued the cause, and Robert C. Londerholm, Atty. Gen., and Hugh H. Kreamer, County Atty., with him on brief for appellee.

O'CONNOR, Justice.

This is a direct criminal appeal wherein the defendant, John Edward Baker, was convicted by a jury of the crimes of burglary in the second degree (G.S.1961 Supp., 21-520, now K.S.A. 21-520) and grand larceny (G.S.1949, 21-524, now K.S.A. 21-524). After overruling the defendant's motion for new trial, the district court sentenced him under the habitual criminal statute to the penitentiary for not less than thirty nor more than forty years on each of the two charges, said sentences to run consecutively.

The factual background of this prosecution is that a complaint was filed in the magistrate court of Johnson county charging Baker with breaking and entering the Ralph Rye Service Station at De Soto on or about November 15, 1963, and stealing from the station property valued in excess of fifty dollars. The defendant was arrested November 17 in Kansas City, Missouri, on a traffic violation, and was found to have in his possession a suitcase containing a display card of cigarette lighters that were later identified as having been stolen from the service station. Baker was returned to Johnson county, where he waived preliminary hearing, and was bound over to district court. On January 6, 1964, he appeared before the district court, and Mr. H. Charles Parrish was appointed to represent him. Formal reading of the information was waived and Baker entered a plea of not guilty. Ten days later, defendant, with his attorney, again appeared before the district court for the purpose of changing his plea to guilty. After questioning the defendant and determining he wished to maintain his original plea of not guilty, the court designated January 20 for commencement of trial by jury.

The state's evidence, although refuted by defendant's testimony in his own behalf, disclosed that on the evening of November 15, or the early morning of November 16, 1963, the Ralph Rye Service Station was burglarized. Entrance was gained by breaking a back window in the grease room. A display card of cigarette lighters, two necklaces, a transistor radio, two mud-and-snow tires, two conventional tires, a telescope, money from the cash register and safe, and a carton of .22 shells were taken from the station. Mr. Rye testified the value of the missing articles was approximately $192. Other witnesses called by the state testified about oral admissions made by Baker concerning his perpetration of the burglary, his removal from the station of a portion of the missing articles, and that the burglary occurred while 'it was dark.' The testimony was received in evidence, without objection by the defendant, although in testifying in his own behalf he inferred he was coerced into making the incriminating statements.

The trial court, without objection by the defendant, instructed the jury on second degree burglary (K.S.A. 21-520) and grand larceny (K.S.A. 21-524). The jury returned a verdict od guilty on both charges. A motion for new trial filed by the defendant on the sole ground the verdict was contrary to the evidence was overruled on January 29, 1964. The state, without objection, introduced into evidence authenticated copies of five prior convictions. Although the state recommended life imprisonment, the two consecutive sentences hereinbefore set forth were imposed.

Defendant filed his notice of appeal pro se, and thereafter present counsel was appointed. An amended notice of appeal, subsequently filed, stated that the defendant appealed from (1) the order denying his motion for new trial, and (2) the order permitting endorsement of the name of a witness on the information two days before trial.

Although defendant has set forth twenty specifications of error, we first focus our attention on those specifications which present the primary issue of this appeal, namely, whether or not an accused may be tried and convicted of burglary in the second degree (K.S.A. 21-520) without having been charged in the information with all of the elements of the offense.

In studying the information, which reads in part:

'* * * that on or about the 15th day of November, 1963, * * * one John Edward Baker did then and there unlawfully, willfully and feloniously break and enter into the Ralph Rye Service Station, De Soto, Kansas, and did steal, take and carry away the property of another, * * * said property being of the value of more than $50.00 in United States money. * * *'

we note that it does not include the words 'in the nighttime.' Notwithstanding such omission, the case was submitted to the jury on instructions which specifically included the phrase as an element of the offense. The jury returned a verdict finding the defendant guilty of 'burglary in the second degree.' The record discloses ample evidence to sustain the jury's finding, including evidence that the burglary was, in fact, committed 'in the nighttime.'

The crux of defendant's argument is that the verdict was a nullity for the reason the information did not charge him with the crime of which he was convicted. The state, on the other hand, argues that the wording of the information, being sufficiently broad in scope to charge both nighttime and daytime burglary, adequately apprised the defendant he was being charged with burglary; and the evidence being uncontradicted that the burglary was committed in the nighttime, the court therefore properly instructed the jury it could find the defendant guilty of second degree burglary. To sustain its position, the state relies on several California cases, People v. Martin, 128 Cal.App.2d 361, 275 P.2d 635, People v. Collins, 117 Cal.App.2d 175, 255 P.2d 59, and People v. Walsh, 75 Cal.App. 434, 243 P. 31, which support the rule in that jurisdiction that an allegation of burglary which does not specify whether the entry occurred in the daytime or the nighttime sufficiently charges both first and second degree burglary, and the degree of the offense is to be determined by the jury if it finds the defendant guilty, or by the court upon a plea of guilty. We believe the rule is not in harmony with the provisions of our statutes requiring that an information be direct and certain as it regards the offense charged (K.S.A. 62-1005), and that the offense charged be stated with such a degree of certainty that the court may pronounce judgment upon conviction (K.S.A. 62-1010, Fifth).

By the express terms of K.S.A. 21-520 the fact that the breaking and entering must occur in the nighttime makes it an essential element of the offense of burglary in the second degree. This element is the distinguishing factor in differentiating between burglary in the second and third degrees. Thus, in order for an accused to be charged with the offense of second degree burglary is is necessary the allegations of the information include the phrase 'in the nighttime.' Absent the phrase, the information is insufficient to allege the offense and, consequently, cannot support a conviction thereon.

We are not required to decide whether or not an information that does not specify the burglary occurred in the daytime or nighttime is sufficient to...