State v. Collins, 47688
| Decision Date | 14 June 1975 |
| Docket Number | No. 47688,47688 |
| Citation | 217 Kan. 418,536 P.2d 1382 |
| Parties | The STATE of Kansas, Appellee, v. Richard W. COLLINS, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. The delayed endorsement of witnesses on the information lies within the sound discretion of the trial court and its action regarding the same will not be disturbed in the absence of an abuse of discretion, the test being whether the substantial rights of the defendant have been prejudiced.
2. Instructions to which no objections were made at the trial become the law of the case and will not be considered on appeal unless they are clearly erroneous.
3. A crime may be said to be a lesser included offense where all of its elements are necessary elements of the greater crime which is charged.
4. The offense of simple possession of marijuana is a lesser included offense of possession of marijuana with the intent to sell the same.
5. The offense of possession of marijuana is not a lesser included offense of sale of marijuana. (Following State v. Woods, 214 Kan. 739, 522 P.2d 967.)
6. The record is examined in an action wherein the defendant was convicted of possession of marijuana and conspiracy to sell L.S.D. and it is held no prejudicial error is established.
James W. Wilson, of Hodge, Wood & Wilson, Wichita, argued the cause and was on the brief for appellant.
Stephen M. Joseph, Asst. Dist. Atty., argued the cause, and Curt T. Schneider, Atty. Gen., Keith Sanborn, Dist. Atty., and Montie Deer, Asst. Dist. Atty., were with him on the brief for appellee.
The defendant was tried and convicted on two counts relating to drug offenses committed on or about September 13, 1973. In the first count he was charged with possession with intent to sell and selling marijuana. The second count charged conspiracy to sell L.S.D. A third count alleged felonious assault. His conviction on this count is not involved in the present appeal.
Five points are set forth in the statement of points. Number three has been abandoned and we take no further note thereof.
In point one which, incidentally, was not orally argued, the defendant complains that the state was permitted to endorse the name of an additional witness on the information, that of Fred Cooper, who had fingerprinted the defendant and his companions. The record indicates the state filed its motion December 3, 1973. The motion was noticed up for hearing December 7, 1973, and was granted on that date. Trial was commenced December 9, 1973.
No objection to the endorsement appears in the record. Nonetheless we shall restate our well settled rule. The late endorsement of witnesses rests in the sound judicial discretion of the trial court and its ruling will not be overturned in the absence of a showing of abuse, the test being whether the substantial rights of the defendant have been prejudiced. (State v. Blocker, 211 Kan. 185, 189, 505 P.2d 1099; State v. Foster, 202 Kan. 259, 447 P.2d 405; State v. Johnson, 210 Kan. 288, 295, 502 P.2d 802.)
No prejudice is brought to our attention in this case. The defendant knew of the state's application at least six days before it was granted and knew of its allowance two days before trial was to commence. This forewarning should have afforded defense counsel ample time to interview Mr. Cooper prior to his being called as a witness. In the absence of any showing to the contrary, we reject the point.
The remaining points of error are directed toward the instructions. We need not spend a great amount of time with them, however, for no objections thereto were interposed at the trial. To the contrary, the record reveals that counsel for defendant spoke in these very words, in responding to inquiry made by the court: 'Defendant Collins has no objections to the instructions submitted.'
Our cases lay down the rule that instructions to which no objections are made at the trial level become the law of the case and are not to be considered on appeal unless they are clearly erroneous. (See cases collected in 1 Hatcher's Kansas Digest (Rev.Ed.) Appeal & Error, § 344; 2 Hatcher's Kansas Digest (Rev.Ed.) Criminal Law, § 420.)
We shall look at the challenged instructions in the light of our rule. In instructions six and seven the trial court informed the jury as to the 'procuring agent' theory of defense. The availability of this defense in narcotics or drug cases was recognized by this court in State v. Osburn, 211 Kan. 248, 505 P.2d 742, in which we said that where the...
To continue reading
Request your trial
-
State v. Rueckert
...The test is whether the defendant's rights have been prejudiced. (State v. Rogers, 217 Kan. 462, 537 P.2d 222; State v. Collins, 217 Kan. 418, 536 P.2d 1382; State v. Williams & Reynolds, 217 Kan. 400, 536 P.2d 1395; State v. Price, 215 Kan. 718, 529 P.2d 85; State v. Blocker, 211 Kan. 185,......
-
State v. Burnett, 48132
...must be present and be required to prove the elements of the greater offense (State v. Evans,219 Kan. 515, 548 P.2d 772; State v. Collins, 217 Kan. 418, 536 P.2d 1382; Wisner v. State, 216 Kan. 523, 532 P.2d 1051; State v. Giddings, supra, and cases cited therein.) If each offense is separa......
-
State v. Ponds, 47856
...trial court, and absent abuse will not be disturbed. State v. Williams & Reynolds, 217 Kan. 400, 536 P.2d 1395, Syl. 1; State v. Collins, 217 Kan. 418, 536 P.2d 1382; State v. Blocker, 211 Kan. 185, 505 P.2d 1099. Appellants were unable to show surprise because, as the trial court pointed o......
-
State v. Hagan
...first premise, possession is an included crime of possession with intent, is supported by case authority of which State v. Collins, 217 Kan. 418, 420, 536 P.2d 1382 (1975) (a marijuana case), is representative. We find this premise Defendant's second premise, the crime of possession with in......