State v. Edgington

• Decision Date: 21 January 1978
• Docket Number: No. 49126,49126
• Citation: 223 Kan. 413,573 P.2d 1059
• Parties: STATE of Kansas, Appellee, v. Forrest R. EDGINGTON, Appellant.
• Court: Kansas Supreme Court

Page 1059

573 P.2d 1059

223 Kan. 413

STATE of Kansas, Appellee, v. Forrest R. EDGINGTON, Appellant.

No. 49126.

Supreme Court of Kansas.

Jan. 21, 1978.

Syllabus by the Court

1. In a prosecution for perjury under K.S.A. 21-3805 the record is examined and, under the facts and circumstances set forth in the opinion, it is held: (1) a prior prosecution for failing to file a change of substantial interest under K.S.A. 75-4302(d) did not constitute prior jeopardy under K.S.A. 21-3108(2)(a ); (2) the trial court did not commit error in finding in an in camera inspection of the district attorney's file that it contained no exculpatory evidence; (3) the trial court did not commit error in its instructions to the jury; and (4) this court will not consider for the first time on appeal matters not raised in the trial court.

Mark L. Bennett, Jr., Topeka, argued the cause and was on the brief, for appellant.

Dennis W. Moore, Dist. Atty., argued the cause and Curt T. Schneider, Atty. Gen., and Richard S. Wetzler, Asst. Dist. Atty., were with him on the brief, for appellee.

HOLMES, Justice:

This is a direct appeal by the defendant, Forrest R. Edgington, from a jury conviction of the crime of perjury. (K.S.A. 21-3805.)

The charges were based upon testimony given by defendant on January 23, 1974, in a divorce proceeding in the Johnson County District Court. Defendant and his wife were involved in divorce litigation and one of the issues concerned the source and amount of defendant's income. Defendant's testimony failed to include a sum in excess of $6,000.00 received in 1973 and January, 1974, from a group known as Physicians Associated. The events preceding defendant's perjury conviction are relevant to this appeal and are set out in some detail.

During 1973, defendant was a city councilman of Overland Park, Kansas, and on May 9, 1974, Margaret Jordan, Johnson County District Attorney, charged the defendant with a misdemeanor offense under K.S.A. 75-4302(d), which requires certain public officers and employees to file a report disclosing substantial changes in income. The state alleged that the defendant had failed to report a change in his income, specifically the income he received in 1973 from Physicians Associated. At the trial on June 18, 1974, some of the monthly checks which the defendant had received from Physicians Associated were introduced into evidence by the state. The court, at the completion of the evidence, took the case under advisement and on July 19, 1974, acquitted the defendant after finding a reasonable doubt as to defendant's intent.

During the period of the investigation and pendency of the misdemeanor charge, the district attorney became aware of defendant's testimony on January 23, 1974, in the divorce proceeding. A transcript of defendant's testimony in the divorce action was ordered and was filed with the clerk of the court on May 6, 1974, three days prior to the filing of the misdemeanor charge. On July 16, 1974, a second complaint was filed by the district attorney's office charging the defendant with perjury. The basis of the perjury charge was the failure of the defendant to divulge the payments from Physicians Associated in his testimony in the divorce trial on January 23, 1974. These payments included some of the same payments which were included in the evidence at the misdemeanor trial.

Defendant was bound over to Johnson County District Court for trial and on April 15, 1975, the jury found defendant guilty as charged.

At the perjury trial, the jury heard the transcript of the entire testimony of the defendant given in the January 23, 1974, divorce proceeding. This evidence was received without objection.

In the divorce action, defendant testified he had income from several sources during 1973, including the City of Overland Park, Board of County Commissioners, railroad retirement and certain other income including commissions; he operated, as a sole proprietor, a management consultant firm known as Dentco Management Company; Dentco had several clients from whom it received commissions; and he had included all such commissions in his testimony.

However, it was later determined that in addition to the clients and commission income which the defendant revealed, he had another client known as Physicians Associated, and had received from that client during 1973, and January, 1974, the sum of $6,287.71. At no point in the defendant's testimony during the divorce proceeding was the name Physicians Associated or the income therefrom mentioned. The state's case in the perjury action was based upon these omissions. The checks which the defendant received from Physicians Associated were introduced in evidence by the state.

The jury returned a verdict of guilty of the crime of perjury. Defendant filed a motion for a new trial specifying several trial errors and on May 30, 1975, Judge Walton filed the court's decision overruling defendant's motion. The defendant now appeals.

Defendant raises four principal points in his brief and argument, the first being:

"The prosecution of the defendant herein for the crime of perjury as defined by K.S.A. 21-3805 is barred for the reason that the defendant was previously prosecuted for the offense of failing to file a disclosure of substantial interest as defined by K.S.A. 75-4302, et seq., which prosecution resulted in an acquittal, and in which evidence was introduced which was also admitted in defendant's trial for perjury, all in violation of K.S.A. 21-3108(2)(a )."

Defendant's argument on this point appears to be that as certain physical evidence, i. e., the checks from Physicians Associated to defendant, was used in the misdemeanor trial for failing to file a disclosure of substantial interest, defendant cannot later be tried for perjury in the divorce trial if the same physical evidence, i. e., checks from Physicians Associated, is to be used in the perjury trial. Defendant bases his argument of former jeopardy on K.S.A. 21-3108(2)(a ), which provides in part:

"(2) A prosecution is barred if the defendant was formerly prosecuted for a different crime . . . if such former prosecution:

(a ) Resulted in . . . an acquittal and the subsequent prosecution is for a crime or crimes of which evidence has been admitted in the former prosecution and which might have been included as other counts in the complaint . . . filed in such former prosecution or upon which the state then might have elected to rely; or was for a crime which involves the same conduct, unless each prosecution requires proof of a fact not required in the other prosecution . . ."

Defendant argues that because of the semicolon which divides paragraph (a) of the above quoted section, the portion of the statute which provides "unless each prosecution requires proof of a fact not required in the other prosecution" relates to crimes which involve the same conduct but cannot be construed as applying to instances where a defendant is acquitted of a previous crime and is subsequently prosecuted for a crime of which evidence has been admitted in the former prosecution. While defendant's grammatical analysis of the statute may be technically correct, we fail to find where it is of any solace or assistance to defendant. The intent of the legislature in its adoption of K.S.A. 21-3108 and prior case law do not support defendant's interpretation of the statute.

In the Advisory Comment to K.S.A. 21-3108 it is noted that the Illinois Criminal Code and former K.S.A. 62-1449 formed the basis of the present statute concerning the effect of former prosecutions.

Kansas decisions under the present statute, K.S.A. 21-3108, as well as its predecessor, K.S.A. 62-1449, have held identity of offenses to be an indispensable ingredient of jeopardy. Where one statute describing an offense requires proof of a fact which another statute does not, then one offense is not a bar to the prosecution of the other on the ground of double jeopardy. State v. Worth, 217 Kan. 393, 537 P.2d 191 (1975); State v. Pruitt, 216 Kan. 103, 531 P.2d 860 (1975); State v. Anderson, 172 Kan. 402, 241 P.2d 742 (1952).

"In criminal cases the ultimate test applied in determining the validity of a plea of former conviction or former acquittal is identity of offenses, and it is not necessarily decisive that the two offenses may have some material fact in common." State v. Ragan, 123 Kan. 399, Syl. P 2, 256 P. 169.

The Illinois decisions construing the Illinois statute, from which our K.S.A. 21-3108 was drawn, also support the requirement of identity of offenses before a former prosecution will operate as a bar to a subsequent prosecution:

"Before the defense of former jeopardy can be sustained the offense involved must be the same, both in law and in fact. If the offenses are distinct in law, the defense of former jeopardy is not available, regardless of how closely they are connected in point of fact." People v. Thompson, 87 Ill.App.2d 426, 429-430, 230 N.E.2d 889, 891 (1967); People v. Garman, 411 Ill. 279, 103 N.E.2d 636 (1952); People v. Koblitz, 401 Ill. 224, 81 N.E.2d 881 (1948), cert. den. 336 U.S. 927, 69 S.Ct. 649, 93 L.Ed. 1088 (1949).

Likewise, the United States Supreme Court has recently held that where the same act or transaction constituted a violation of two statutory provisions, the test for determining whether there were two offenses or only one, for purposes of the double jeopardy clause of the Fifth Amendment, was whether each provision required proof of a fact which the other did not. Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977).

In the case under consideration, it is readily determinable that the crimes charged were separate and distinct offenses. The facts necessary to convict defendant of perjury would not necessarily have convicted him of failure to file a statement of a change of substantial interest, and vice versa. The offenses with which defendant was charged are separate and...