State v. Cory
| Decision Date | 03 March 1973 |
| Docket Number | No. 46805,46805 |
| Citation | 506 P.2d 1115,211 Kan. 528 |
| Parties | STATE of Kansas, Appellee, v. Charles Edgar CORY, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. Where the same conduct of a defendant constitutes a violation of two statutory proscriptions the test of duplicitous offenses is whether each required proof of an element of the offense which the other does not and if so that offenses are not duplicitous.
2. Charges of (1) possession of burglary tools and (2) commission of an overt act in the perpetration of a burglary are separate and distinct offenses, they are not duplicitous and separate convictions for both offenses arising from the same conduct are proper under K.S.A.1972 Supp. 21-3107.
3. The three essential elements of an attempt to commit a crime under K.S.A.1972 Supp. 21-3301 are stated and applied.
4. In an appeal from convictions on two related counts of possession of burglary tools and of an attempt to commit the crime of burglary the record is examined and the convictions are upheld.
John C. Humpage, of Humpage & Stewart, Topeka, argued the cause and was on the brief for appellant.
David F. Brewster, County Atty., argued the cause, and Vern Miller, Atty. Gen., and Larry A. Prauser, Deputy County Atty., were with him on the brief for appellee.
This appeal is brought from convictions by a jury on two related counts in an information filed against Charles Edgar Cory. Count I charged Cory with the possession of burglary tools with intent to commit a burglary (K.S.A.1972 Supp. 21-3717). Count II charged Cory with an anticipatory crime, an attempt under K.S.A.1972 Supp. 21-3301 to commit the crime of burglary as defined by K.S.A.1972 Supp. 21-3715. Cory was sentenced to two consecutive terms of not less than one nor more than five years. He seeks reversal of these convictions on two grounds which will be discussed later.
The appellant was arrested on the evening of February 2, 1971, in an alley behind the Modern Jewelry Store in Baxter Springs at 8:15 p. m. after the store's burglar alarm had sounded. A pair of large bolt cutters lay on the ground between his feet and a gunny sack lay nearby containing a hammer, a screwdriver and two punches. One of the bars protecting the rear window of the jewelry store had been cut. The window had been raised and was held open by a crowbar. A vehicle owned by appellant's wife was found parked on a nearby street.
Appellant's testimony, which the jury apparently disbelieved, was that he was suffering from diarrhea that evening and had gone into the alley to relieve himself. Cory testified he met two men emerging from the alley as he was hastening into it. Cory's wife confirmed her husband's story concerning his running bout with diarrhea.
Appellant first contends the trial court should have instructed the jury that it could convict defendant of possession of burglary tools or of an attempt to commit a burglary, but not both, since the same evidence was used to support both charges. Appellant relies upon State v. Gauger, 200 Kan. 515, 438 P.2d 455, and similar cases, which simply hold that a defendant may be convicted of either the crime charged or a lesser included crime, but not both. Here two separate crimes were charged in separate counts.
It is true, however, that the state may not split a single offense into separate parts. This rule was recognized and applied recently in State v. Campbell, 210 Kan. 265, 500 P.2d 21, where it was held:
'In a criminal action charging a defendant with felonious assault and first degree robbery, where there is but a single act of violence or intimidation, and that act which was an essential element of the first degree robbery conviction was also relied upon as constituting the separate crime of felonious assault, the two separate convictions cannot be varved out of the one act of criminal delinquency, and the felonious assault charge must be dismissed as duplicitous.' (Syl. 10.)
The rule was codified in the laws of 1969 (K.S.A.1972 Supp. 21-3107) as follows:
'(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.'
We discern no particular difference in the meaning of the terms, 'the same conduct of a defendant' as used in the statute and 'a single transaction of a defendant' as used in our prior case law. The statute recognizes the right of the prosecution to charge more than one offense based on the same conduct or act of the accused. It also recognizes the right of the prosecution to charge one offense and obtain a conviction on a lesser included offense not specifically charged. The comment of the judicial council appended to the statute indicates the main objective of the framers of the statute was to formulate the limitations upon multiplicity of convictions or prosecutions, so that the state could not split a single offense into separate parts or file separate actions against an accused for multiple offenses arising out of the same conduct.
Appellant misapplies these well recognized limitations to the facts of our present case. When two offenses are charged in separate counts of one information the test to be applied is not whether the facts actually proved at trial are used to support the conviction of two offenses, it is whether the necessary elements of proof of the one crime are included in the other.
This court has frequently stated that where the same conduct of a defendant constitutes a violation of two statutory proscriptions the test of duplicitous offenses is whether each requires proof of an element of the crime which the other does not and if so the offenses are not duplicitous. (Wagner v. Edmondson, 178 Kan. 554, 290 P.2d 98; Lawton v. Hand, 186 Kan. 385, 350 P.2d 28; Coverly v. State, 208 Kan. 670, 493 P.2d 261.)
In State v. Ogden, 210 Kan. 510, 502 P.2d 654, this court in discussing a claim of inconsistent verdicts on separate counts of burglary and of possession of burglary tools, observed:
This court has previously held multiple convictions arising from the same conduct of a defendant are proper on the following related charges: (1) Assaulting a jailer and escape from jail (Wagner v. Edmondson, supra); (2) possession of pistol after conviction of crime and carrying a concealed weapon (Cox v. State, 208 Kan. 190, 490 P.2d 381); (3) statutory rape and incest (Wiebe v. Hudspeth, 163 Kan. 30, 180 P.2d 315; (4) first degree kidnapping and forcible rape (State v. Brown, 181 Kan. 375, 312 P.2d 832); and (5) embezzlement and forgery (State v. Patterson, 66 Kan. 447, 71 P. 860).
One may attempt to commit a burglary without possessing burglary tools. Entrance may be attempted without tools. Further, one may possess burglary tools with the requisite felonious intent but without committing the overt act necessary under K.S.A.1972 Supp. 21-3301 to attempt a burglary. Thus, each is an offense requiring proof of an element not necessary in the other, and neither is a lesser degree of the other offense charged. (See People v. Szymezak, 116 Ill.App.2d 384, 253 N.E.2d 894, and 2 Wharton's Criminal Law and Procedure, § 443, p. 65.) Charges of (1) possession of burglary tools and (2) commission of an overt act in the perpetration of a burglary are separate and distinct offenses, they are not...
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