State v. Farris, 47760

• Decision Date: 08 November 1975
• Docket Number: No. 47760,47760
• Parties: STATE of Kansas, Appellee, v. Jack R. FARRIS, Appellant.
• Court: Kansas Supreme Court

Page 725

542 P.2d 725

218 Kan. 136

STATE of Kansas, Appellee, v. Jack R. FARRIS, Appellant.

No. 47760.

Supreme Court of Kansas.

Nov. 8, 1975.

Syllabus by the Court

1. The defense of entrapment is not available and does not extend to acts of inducement or solicitation by private citizens who are not public officers or acting as agents of public officers.

2. It is incumbent upon the appellant to include in the record on appeal any matter upon which he intends to base a claim for relief. Appellate courts will review only those questions shown by the record to have been presented to the trial court.

3. The admission into evidence of an entire criminal file of a district court is not a proper method of establishing a prior conviction of a felony as an element of a firearms charge under K.S.A. 21-4204(1)(b) but under the particular facts of this case the erroneous admission did not amount to a denial of substantial justice so as to constitute reversible error.

4. No particular intent or other state of mind is a necessary element of the crime proscribed by K.S.A. 21-3411 when the assault consists of an assault with a deadly weapon. Therefore when the accused is so charged with unlawfully assaulting or striking a law enforcement officer, when such officer is in uniform or properly identified as a state, county or city law enforcement officer, and when he is engaged in the performance of his duty no instruction on voluntary intoxication under K.S.A. 21-3208(2) is required.

Russell Shultz, Wichita, argued the cause and was on the brief for appellant.

Robert L. Kennedy, Jr., Asst. Dist. Atty., argued the cause, and Curt T. Schneider, Atty. Gen., Keith Sanborn, Dist. Atty., and Stephen M. Joseph, Asst. Dist. Atty., were with him on the brief for appellee.

FROMME, Justice:

Jack R. Farris appeals from jury convictions on one count of aggravated assault on a law enforcement officer (K.S.A. 21-3411) and two counts of unlawful possession of firearms (K.S.A. 21-4204(1)(b)). These convictions arose out of two separate incidents but were consolidated and tried together. The first incident occurred on July 31, 1972, the second on February 19, 1973.

On July 31, 1972, Farris was residing with his common law wife, Annette Brown, in a mobile home located in a trailer park in Wichita, Kansas. There was evidence that Farris had been drinking with a friend throughout the day and by 9:30 p. m. he became hostile and unreasonable. He obtained a pistol and began firing it at objects inside the mobile home. The wife slipped out the back door and ran to the office of the manager of the trailer park. The police were summoned and several police officers in uniform, driving marked police cars, appeared in the trailer park and took up positions in front of the Farris mobile home. Officers Anderson and Moriarty, wearing the usual uniforms complete with police caps bearing the insignia of the city police department, positioned themselves behind their police cars which were parked some forty feet from the front of the Farris trailer. Farris came to the door with pistol in hand. He started to walk down the steps then turned and moved back toward the door of the mobile home. Officer Anderson shouted to Farris that he was a police officer and that Farris should throw out his gun and move away from the trailer. In reply Farris exclaimed, 'Yeah, Man,' and aimed his pistol at Officer Anderson. Anderson was holding a shotgun and quickly fired one shot which struck Farris in the face and knocked him down. Farris was taken to a hospital for treatment and later charged with aggravated assault on a law enforcement officer, unlawful possession of a firearm and one additional felony of which he was acquitted and with which we are not concerned.

Some six months later on February 19, 1973, the police were notified that a man in a Wichita tavern was carrying a firearm on his person. The police arrived at the tavern and found Farris carrying a firearm in his belt under his jacket. He was arrested and charged with unlawful possession of a firearm.

In regard to this later incident Farris testified that he and Melvin Pruitt were going to the tavern to check on a story that a woman was being beaten up by her former husband. On the way Pruitt stopped at his house and obtained the pistol. After they arrived they found no fight in progress so they stayed to drink a little. Later they gathered around a pool table so Pruitt could play pool and Pruitt handed the gun to Farris to keep for him while the pool game was in progress. Farris put the gun in his belt and shortly thereafter the police arrived and arrested him for unlawful possession of the firearm.

On appeal from his conviction arising from the incident of February 19, 1973, appellant contends he was entitled to defend on the theory of entrapment and the court erred in refusing to instruct thereon. K.S.A. 21-3210 provides:

'Entrapment. A person is not guilty of a crime if his criminal conduct was induced or solicited by a public officer or his agent for the purposes of obtaining evidence to prosecute such person, . . .'

At the trial the arresting officers were cross-examined concerning Pruitt's possible connection with the police department as an informer. However, the officers categorically denied any knowledge of the same and there was no evidence introduced to support such a defense. The defense of entrapment is not available and does not extend to acts of inducement or solicitation by private citizens who are not public officers or acting as agents of public officers. (State v. Farmer, 212 Kan. 163, Syl. 3, 510 P.2d 180.) When the evidence viewed most favorably to a defendant does not disclose a case of entrapment the trial court is justified in refusing to instruct thereon. (State v. Hamrick, 206 Kan. 543, 550, 479 P.2d 854.)

Appellant complains that the trial court erred in refusing to grant a continuance when his attorney was engaged in the trial of a case in another judicial district on the day set for this trial. He states that his counsel was required to turn over the trial of the other case, then in progress, to an associate in order that his attorney might proceed with appellant's case, and that sufficient time was not granted by the court for his counsel to prepare his defense in the present case.

There is nothing in the record to indicate that a continuance was requested or that an affirmative need for additional time was presented to the trial court. It is incumbent upon the appellant to include in the record on appeal any matter upon which he intends to base a claim for relief. (Becker v. Rolle, 211 Kan. 769, Syl. 4, 508 P.2d 509.) Appellate courts will review only those questions shown by the record to have been presented to the trial court. (Gault v. Board of County Commissioners, 208 Kan. 578, 583, 493 P.2d 238; Rich v. Yoder, 170 Kan. 726, Syl. 2, 228 P.2d 533.)

During the trial the state introduced an entire court file covering felony charges lodged against appellant, and indicating that he had been previously convicted of unlawful possession of firearms. Probation on a previous third degree burglary conviction had been revoked during the proceedings. The file was introduced for the purpose of proving an element of the two current firearm charges. The file contained much extraneous matter including charges on two felony counts which had ended in a mistrial and were later disposed of by a subsequent trial. The appellant earnestly contends the file was of such a nature that it constituted evidence by the state which drew his character and credibility into question in violation of the evidentiary guidelines established in K.S.A. 60-447 and K.S.A. 60-421.

The statute defining the crime of unlawful possession of a firearm (K.S.A. 21-4204(1)(b)) requires the state to prove that the accused had a firearm with a barrel of less than twelve inches in length in his possession after having been previously convicted of a felony within the preceding five years or had been released from imprisonment for a felony during such period. This court has held that evidence which is otherwise relevant in a criminal prosecution is not rendered inadmissible simply because it may show a crime other than that charged. (State v. Calvert, 211 Kan. 174, 505 P.2d 1110, and State v. Pierce et al., 208 Kan. 19, 490 P.2d 584.) An admission by the accused that he committed certain crimes does not prevent the state from presenting separate and independent proof of the crimes admitted. (State v. Johnson, 216 Kan. 445, 448, 532 P.2d 1325.)

The admission of the entire file in this case was not a proper practice for the file contained much extraneous and irrelevant material which could be confusing to a jury. We cannot condone such a practice. An authenticated copy of the journal entry of conviction should have been edited to remove reference to felony charges which were not established and upon which the state was not relying to prove the necessary element of prior conviction of crime. The practice of introducing an entire court file in such cases should be discontinued.

However, in the present case there was independent testimony which established the two prior felonies, the firearms charge and the burglary charge. The accused testified in his own behalf that he had pled guilty to these two prior felonies and was on probation from the burglary conviction at the time the present incidents occurred. The court in its instructions mentioned that evidence had been introduced to show these two prior convictions only as an element of the firearm charges and the evidence was not to be considered nor should the jury infer therefrom any propensity on the part of the accused to commit crimes. The appellant requested and the court gave an instruction as to other crimes under K.S.A. 60-455 limiting their consideration.

A defendant is entitled to a fair trial but not a perfect one, for there are no perfect trials. The...