State v. Gustin
| Decision Date | 09 June 1973 |
| Docket Number | No. 47047,47047 |
| Citation | 212 Kan. 475,510 P.2d 1290 |
| Parties | STATE of Kansas, Appellant, v. Jack D. GUSTIN, Appellee. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. Instruction No. 1, referred to as the 'do what you think is fair' instruction, as embodied in PIK Criminal 51.03, is disapproved for use in Kansas, (following State v. McClanahan, 212 Kan. 208, 510 P.2d 153).
2. The court should enter a judgment of acquittal if the evidence is insufficient to sustain a conviction of the crime or crimes charged. (K.S.A.1972 Supp. 22-3419).
3. A trial judge in passing upon a motion for judgment of acquittal must determine whether upon the evidence, giving full play to the right of the jury to determine credibility, weigh the evidence, and draw justifiable inferences of fact, a reasonable mind might fairly conclude guilt beyond a reasonable doubt. If he concludes guilt beyond a reasonable doubt is a fairly possible result, he must deny the motion and let the jury decide the matter. If he concludes that upon the evidence there must be such a doubt in a reasonable mind, he must grant the motion.
4. A judgment of acquittal, whether resulting from a jury verdict or ordered by the court, correctly or incorrectly arrived at, terminates the prosecution; and the double jeopardy clause of the fifth amendment bars further proceedings against the defendant for the same offense.
5. The rules of civil procedure cannot be invoked to allow an appellate court to reinstate a jury verdict of guilty once there had been an acquittal, despite the provision of K.S.A.1972 Supp. 22-3606 that statutes and rules governing civil appeals shall apply to criminal appeals.
J. Stewart McWilliams, Asst. Dist. Atty., argued the cause, and Margaret W. Jordan, Dist. Atty., and Vern Miller, Atty. Gen., were with him on the brief for the appellant.
Harlan L. Long, Shawnee Mission, argued the cause and was on the brief for the appellee.
This is a criminal appeal by the state asking this court to reverse a judgment of acquittal, reinstate the jury verdict of guilty, and order the trial court to consider defendant's motion for new trial. The issue involves an interpretation of K.S.A. 1972 Supp. 22-3419. The state also claims the trial court erred in giving Instruction No. 1, generally referred to as the 'do what you think is fair' instruction. Both issues are of general importance to the administration of criminal justice in this state. We will treat the two points as questions reserved on appeal perfected by the state under the provisions of K.S.A. 1972 Supp. 22-3602(c).
Defendant Jack D. Gustin was a subcontractor of the Garney Construction Company on a sewer project in Johnson County, Kansas, in the area of 68th Street and Halsey Lane. On November 3, 1971, Garney foreman, Joe Lewis, reported the company's only Gardner-Denver 150 air compressor missing from 6809 Halsey Lane where it was parked near the job site. After checking with the contractor's employees at the office and other construction sites, Lewis determined it had been stolen. Terry Deister, equipment manager for Garney, located the missing air compressor six months later on April 25, 1972, at Gravois Mills, Missouri. Identification was made by comparing with company records a secret number placed on the air compressor by Garney Construction Company.
The air compressor was in possession of Larry Wittrock and he was the principal witness. Wittrock worked at a marina located on the Gravois Arm of Lake of the Ozarks. Defendant patronized the marina and Wittrock testified he had known him for about four years prior to the trial. Wittrock testified that in early November, 1971, he expressed to defendant his desire to purchase a used air compressor for use in sandblasting, and defendant agreed to 'keep his eyes open' for one. In the latter part of November, 1971, defendant telephoned and convinced Wittrock that a used model 150 which he had found was a bargain at $400.00 even though larger than he needed. Wittrock testified he asked if it was stolen and defendant said it was not. Defendant brought the Gardner-Denver 150 to Gravois Mills and Wittrock paid defendant $400.00 in cash for it as requested. Wittrock had lost the receipt for the cash purchase along with other papers when his car overturned in a creek. He repainted the air compressor. According to his testimony, it was valued between two and three thousand dollars. Even though he owned kt and had $400.00 invested in it, he allowed Deister, accompanied by the Morgan County, Missouri, sheriff to take it to Kansas City in April, 1972.
Wittrock failed to appear at the first scheduled preliminary hearing, later testifying he had car trouble and could not get there. He appeared to testify June 29, 1972, at the second scheduled preliminary hearing at which Gustin was charged with theft in violation of K.S.A.1971 Supp. 21-3701. Trial was set for August 24, 1972, but it was necessary to continue it the day trial was to begin because Wittrock did not appear. He later testified he had been on vacation and had not received the mailed notice until after the trial date.
The rescheduled jury trial began September 18, 1972. The state presented evidence and rested, at which point defendant moved for judgment of acquittal pursuant to K.S.A.1972 Supp. 22-3419(1), which motion was overruled. Court recessed until the next day. On the morning of September 19, 1972, during conference in chambers, the court, having been informed the defendant would not present any evidence, considered the motion for judgment of acquittal and took it under advisement.
Court and counsel then proceeded to review the proposed instructions. The court proposed the 'do what you think is fair' instruction as Instruction No. 1, acknowledging that it embodied the essentials of PIK Criminal 51.03. The objection of the state was overruled and the state reserved the question of its propriety for appeal. The instruction has been disapproved for use in Kansas. (State v. McClanahan, 212 Kan. 208, 510 P.2d 153.) We need not extend this opinion by additional discussion in view of what was said in McClanahan.
The jury returned a guilty verdict. Defendant requested a hearing on his oral motion for a new trial. The trial court refused to consider the motion for new trial by defendant and instead took up the motion for judgment of acquittal, still under advisement, with the following comment:
'. . . The Court feels conscience bound to at this time set aside the verdict of this jury, sustain the motion for judgment of acquittal and discharge this Defendant.
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'The Court is clear that there is not evidence sufficient ot result in a conviction of this Defendant.'
On November 1, 1972, during a hearing on defendant's motion for new trial, the court again commented on its reasons for sustaining the motion for judgment of acquittal:
The state asserts the trial court abused its discretion in granting the judgment of acquittal based upon the weight of the evidence and credibility of witnesses' testimony.
K.S.A.1972 Supp. 22-3419, effective July 1, 1970, reads as follows:
'(2) If a motion for judgment of acquittal is made at the close of all the evidence, the court may reserve decision on the motion, submit the case to the jury and decide the motion either before the jury returns a verdict or after it returns a verdict of guilty or is discharged without having returned a verdict.
This statute has no prior source in Kansas statutes, but it is substantially like Rule 29 of the Federal Rules of Criminal Procedure (18 U.S.C.A.). The limit of the trial court's authority to set aside a jury verdict of guilty and sustain a motion for judgment of acquittal as provided in K.S.A. 1972 Supp. 22-3419(3) has not previously been before this court. We conclude it is a question of general application and importance to the administration of criminal justice in this state and deserves our attention as a state reserved question.
There is only one standard by which a judge is to be guided in passing on a motion for judgment of acquittal, whether moved at the close of the state's evidence, at close of all evidence, or after discharge of the jury. The trial judge should direct acquittal if the evidence is insufficient to...
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