State v. Brothers

• Decision Date: 12 May 1973
• Docket Number: No. 46964,46964
• Citation: 212 Kan. 187,510 P.2d 608
• Parties: STATE of Kansas, Appellee, v. Timothy Robert BROTHERS, Appellant.
• Court: Kansas Supreme Court

Page 608

510 P.2d 608

212 Kan. 187

STATE of Kansas, Appellee, v. Timothy Robert BROTHERS, Appellant.

No. 46964.

Supreme Court of Kansas.

May 12, 1973.

Syllabus by the Court

1. An issue will not be considered upon appeal where its existence depends upon facts which do not appear in the record before the appellate court.

2. A challenge to the array based upon the selection and composition of the jury must be made prior to the voir dire examination.

3. Purposeful exclusion is not satisfactorily proved by showing an identifiable segment of the community is not proportionately represented on the jury list.

4. Although the law requires that a jury panel be truly representative of a cross-section of the community in which a defendant is to be tried, a youthful defendant in a criminal case is not constitutionally entitled to be tried by a jury on which there is a member, or members, of his age group, and he is entitled to relief only upon proof presented by him which discloses a purposeful discrimination to exclude members of a class from the jury panel.

5. A negative averment of the matter of an exception or proviso in a penal statute is not necessary in an information, unless such matter enters into and becomes a material part of the description of the offense.

6. An accused can rely on the defense of entrapment when he is induced to commit a crime which he has no previous disposition to commit; however, he cannot rely on the defense when he has shown a predisposition for committing the crime and was merely afforded an opportunity to consummate the crime by law enforcement officers.

7. If the activity of an accused is selling narcotics or other proscribed drugs it is permissible for a law enforcement official to solicit a sale. If the accused is willing to sell to the official who pretends to be an ordinary patron, it is safe to assume that he would make similar unlawful sales to other persons.

8. In a prosecution for the unlawful sales of LSD the record on appeal is examined and it is held: Assertion of error predicated on the contention appellant was not tried by a jury of his peers is not sustained, and the trial court did not err in its instructions defining the elements of the offenses charged or in failing to instruct the jury on the defense of entrapment.

T. L. O'Hara, Wichita, argued the cause and was on the brief for the appellant.

Reece C. Jones, Deputy Dist. Atty., argued the cause, and Vern Miller, Atty. Gen., and Keith Sanborn, Dist. Atty., were on the brief for the appellee.

HARMAN, Commissioner:

Timothy Robert Brothers was convicted by a jury upon two counts of selling LSD. New trial was denied, sentence was imposed June 23, 1972, and Brothers now appeals.

Appellant contends he was not tried by a jury of his peers. In his brief he states he was twenty-one years of age, that the jurors were persons of the age of thirty-five or more and all younger persons were excluded from the jury at appellee's request. For several reasons the complaint cannot be sustained. First, appellant has failed to produce any record upon appeal showing either the composition of the jury as to age or the proceedings of its selection and impaneling. An issue will not be considered upon appeal where its existence depends upon facts which do not appear in the record before the appellate court. Appellee has supplied a supplemental record of the hearing on motion for new trial wherein the following comments by the trial court appear:

'If I recall correctly, the record in this case will show that all of the younger people that were excused from the jury, said that in their opinion they could not give this defendant a fair trial because the drug laws were too strict and I'm not going to keep anybody on the jury that tells me they don't think they can give the defendant a fair trial.'

In its brief appellee states that at its request two jurors were excused for cause 'who stated that they could not find the defendant innocent because of the sole fact that this was a drug case.'

Second, it appears that prior to voir dire examination appellant made no challenge to the array as is required where a defendant is aware of the composition of the jury panel, which composition forms the basis of his objection to the panel's selection (see Kirtdoll v. State, 209 Kan. 508, Syl. 2, 496 P.2d 1396).

Finally, assuming the facts to be as alleged by appellant, relief could not be granted. Attacks upon constitutional grounds against a jury panel that it is not representative of the community in which the defendant is to be tried, absent any showing of systematic or purposeful discrimination to exclude members of a class from the panel, have not been sustained where the panel contained no women (State v. Paxton, 201 Kan. 353, 440 P.2d 650), where it contained a disproportionate number of women to men (see State v. Stanphill, 206 Kan. 612, 620, 481 P.2d 998), where no Negroes were on the panel in trial of a Negro defendant (State v. Clift, 202 Kan. 512, 449 P.2d 1006), nor where the panel contained a disproportionate number of Negroes to Caucasians when the defendant was a Negro (State v. Cushinberry, 204 Kan. 65, 460 P.2d 626). Purposeful exclusion is not satisfactorily proved by showing an identifiable segment of the community is not proportionately represented on the jury list (State v. Stanphill, supra). Systematic or purposeful exclusion of young persons from jury service has not been shown and no reason appears why the foregoing rules should not be applicable with respect to classification based upon age.

Appellant asserts error in that the trial court 'refused to put in the instructions that the defendant sold LSD without first having obtained a license from the Board of Pharmacy of the State of Kansas.'

Appellant was convicted of two different counts of sale of LSD, offenses described in K.S.A.1971 Supp. 65-2602 (since repealed) in the following language:

'It shall be unlawful . . .

'(8) For any person to sell, offer for sale or have in his possession with the intent to sell any hallucinogenic or stimulating drug described in subsection (1)(c) of K.S.A. 65-2601, as amended.'

K.S.A.1971 Supp. 65-2601(1)(c) described the substance commonly known as LSD as a hallucinogenic or stimulating drug.

Subsection (1) of K.S.A.1971 Supp. 65-2602 made it an offense for a licensed pharmacist to deliver particular drugs except under certain conditions of prescription, direction for use, record keeping, etc.

The information under which appellant was convicted simply charged that on two different occasions he unlawfully possessed with intent to sell and sold LSD, as denounced by 65-2602(8). He was not charged with dispensing drugs in violation of 65-2602(1). We have held that where there is an exception in a statute defining an offense, and the exception forms an integral part of the offense defined, the information must negative the exception in order to charge the offense (see, e. g., State v. Jamieson, 206 Kan. 491, 480 P.2d 87, where this rule was applied with respect to the then existing abortion statute). Manifestly, the rule fails when the exception does not comprise an integral part of the offense defined. This is the situation here, one similar to that present in State v. Perello, 102 Kan. 695, 171 P. 630, in which it was held:

'In an information charging the violation of section 1 of the 'Bone-Dry-Law' (Laws 1917, ch. 215), making it unlawful 'for any person to keep or have in his possession . . . any intoxicating liquors . . . or to give away or furnish intoxicating liquors to another, except druggists or registered pharmacists as hereinafter provided,' it is not necessary to allege that the defendant was not a druggist or registered pharmacist.

'A negative averment of the matter of an exception or proviso in a penal statute is not necessary in an information, unless such matter enters into and becomes a material part of the description of the offense.' (Syl. 1, 2.)

The same rule was applied in State v. Braun, 209 Kan. 181, 495 P.2d 1000. There the defendant was convicted of possession of marijuana in violation of the Uniform Narcotic Drug Act (K.S.A. Chap. 65, Art. 25), section 17 of which provided:

'In any complaint, information, or indictment, and in any action or proceeding brought for the enforcement of any provision of this act, it shall not be necessary to negative any exception, excuse, proviso, or exemption contained in this act, and the burden of proof of any such exception, excuse, proviso, or exemption shall be upon the defendant.'

In Braun in response to defendant's contention the state should have been required to prove he was not an exempt person this court, after quoting the foregoing statute, commented:

'There is nothing new about this provision in Kansas. In State v. Miller, 127 Kan. 487, 274 P. 245, it was held that when the state has established a prima facie case against a defendant charged with possession of narcotics, the defendant is under the necessity of combating this prima facie case by some explanation of his possession of the property consistent with his innocence, and his failure to make such explanation subjects him to the risk of conviction. The general rule has always been in Kansas that the accused has the burden of introducing evidence as a matter of defense that he is within an exception or exemption in the statute creating the offense where such exception or exemption is not part of the description of the offense. Accordingly, the prosecution owes no duty to prove on its case in chief that the accused is not within the exception. This, of course, is a mere rule of procedure and does not relieve the state of its burden of proving guilt.' (Pp. 189-190, 495 P.2d pp. 1006-1007.)

Here the exception relied upon by appellant did not form an integral part of the offense with which he was charged and the trial court did not err in its instructions defining the elements of that offense.

Fi...