State v. Daniels, 48867
| Decision Date | 10 December 1977 |
| Docket Number | No. 48867,48867 |
| Citation | 573 P.2d 607,223 Kan. 266 |
| Parties | STATE of Kansas, Appellee, v. Harold DANIELS, Appellant. |
| Court | Kansas Supreme Court |
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 must be present to establish the elements of the greater offense. Wisner v. State, 216 Kan. 523, 532 P.2d 1051.
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.
3. Under our statutes aggravated battery, which includes elements not necessarily required to prove a charge of attempted murder, is not a lesser included offense of attempted murder.
4. A conviction based upon an information which does not sufficiently charge the offense for which the person is convicted is void.
5. One may be convicted of an offense not included in the information if the offense is a lesser included offense of the crime charged. The charging of the greater offense satisfies the notice requirements for the lesser offense.
6. A conviction of an offense not charged in the information and not a lesser included offense of the crime charged denies the defendant procedural due process and violates his right to be informed of the charges against him.
Stanley E. Antrim, of Light, Yoxall, Antrim & Richardson, Liberal, and Lawrence D. Tackett, of Haines, Cowgill, Andell & Fuqua, Houston, Tex., argued the cause and Michael P. Haines, of Haines, Cowgill, Andell & Fuqua, Houston, Tex., was with them on the brief for appellant.
Tom R. Smith, County Atty., argued the cause and Curt T. Schneider, Atty. Gen., and Nancy J. Schmidt, of Frey, Smith & Schmidt, Liberal, were with him on the brief for appellee.
This is a direct appeal by the defendant-appellant from a conviction of aggravated battery (K.S.A. 21-3414).
Defendant was charged with attempted murder (K.S.A. 21-3301 and K.S.A. 21-3401) against Jimmie Rogers and simple battery (K.S.A. 21-3412) against Ms. Sharon Goodhart. The trial court, over defendant's strenuous objection, gave instructions that aggravated battery, aggravated assault and criminal injury to persons were lesser included offenses of attempted murder. Defendant was found not guilty of attempted murder and guilty of aggravated battery. The defendant was also found not guilty of the charge of simple battery against Ms. Goodhart.
Defendant alleges he has been denied his constitutional right to due process of law in being convicted of a crime based upon a charge not made in the information.
The question squarely before this court is whether it was error for the trial court to give an instruction on the crimes of aggravated battery, aggravated assault and criminal injury to persons as being lesser included offenses of attempted murder.
In the early morning hours of June 14, 1975, Harold Daniels became suspicious of his wife's fidelity when she arrived at their home in Satanta around three o'clock a. m. Harold Daniels dressed and took his wife with him to his place of business, a feedlot in Satanta, where he armed himself with a loaded pistol and then drove to Liberal, Kansas, in search of his wife's alleged paramour, one Jimmie Rogers. When they arrived in Liberal, defendant drove to the home of his brother, Lee Daniels, and requested that he accompany them in search of Jimmie Rogers.
Defendant, his wife and his brother eventually found Jimmie Rogers' pickup truck in the driveway at the residence of Ms. Sharon Goodhart in Liberal, Kansas. Defendant entered Ms. Goodhart's home in search of Jimmie Rogers and as he did so, Mrs. Daniels ran to Rogers' pickup, where Rogers was asleep in the seat. Mrs. Daniels began beating on the truck window in an attempt to awaken Rogers. Defendant immediately emerged from Ms. Goodhart's residence and in doing so, as she attempted to restrain him, she was pushed aside resulting in the charge of simple battery. Defendant proceeded to Jimmie Rogers' truck and fired a number of shots into the cab of the truck, wounding Jimmie Rogers. There is a divergence in the testimony as to whether Jimmie Rogers ever awoke before being shot. The affray ended when defendant's brother, Lee Daniels, grabbed defendant's arm and attempted to take the gun away from him.
Ms. Goodhart called the police and the defendant, his wife and brother got in their pickup and left the scene. Later that day defendant was arrested upon a warrant charging him with aggravated battery in violation of K.S.A. 21-3414.
On July 24, 1975, an amended complaint was filed charging Harold Daniels in count one with attempted murder, count two with aggravated battery, both against the victim, Jimmie Rogers, and count three with simple battery against Ms. Sharon Goodhart.
The amended information, eliminating formal parts, charged:
Count I.
Count II.
Count II.
The defendant filed a motion to require the State to elect between counts one and two of the information. At a hearing on this motion the State dismissed count two. The case went to trial before a jury on March 29, 1976, on the charges of attempted murder against Jimmie Rogers, count one, and simple battery against Sharon Goodhart, count three. At trial, defendant's version of the incident was he had no intention of harming Rogers but just wanted to talk with him about what was going on with defendant's wife and he shot in self-defense as Jimmie Rogers bent over in his truck reaching for what defendant believed to be a pistol.
After the evidence was in, the court instructed the jury on the elements of attempted murder and, over the objection of defense counsel, instructed that aggravated battery, aggravated assault and criminal injury to persons were lesser included offenses of attempted murder.
Pertinent instructions given by the court were:
The offense of attempted murder with which the Defendant is charged includes the lesser offenses of aggravated battery, aggravated assault, and criminal injury to persons.
You may find the Defendant guilty of attempted murder or aggravated battery, or aggravated assault, or criminal injury to persons, or not guilty.
Where there is reasonable doubt as to which of two or more offenses the Defendant is guilty, he may be convicted of the lesser offense only.
The defendant is charged with the crime of an attempt to commit the crime of murder. The defendant pleads not guilty.
To establish this charge each of the following claims must be proved:
1. That the defendant performed an act towared the commission of the crime of murder but failed to consummate its commission;
2. That the defendant did so with the intent to commit the crime of murder; and
3. That this act occurred on or about the 14th day of June, 1975, in Seward County, Kansas
4. The crime of murder is defined as the killing of a human being, committed maliciously, willfully, deliberately and with premeditation.
'Maliciously' means willfully doing a wrongful act without just cause or excuse.
'Willfully' means conduct that is purposeful and intentional and not accidental.
If you find the defendant not guilty of attempted murder you shall consider if he is guilty of aggravated battery.
To establish this charge, each of the following claims must be proved:
1. That the defendant intentionally applied force to the person of Jimmie Rogers.
2. That it was done with the intent to injure Jimmie Rogers.
3. That it was done with a deadly weapon.
4. That this act occurred on or about the 14th day of June, 1975, in Seward County, Kansas."
Defendant objected to instructions two and four as well as those defining aggravated assault and criminal injury to persons.
The jury returned a verdict of not guilty of attempted murder, not guilty of simple battery, but guilty of aggravated battery. Defendant renewed his objection to the instructions at a motion for a new trial which was overruled.
The problem of lesser included offenses is controlled by K.S.A. 21-3107 and has been before this court on...
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