State v. Hacker
| Decision Date | 10 December 1966 |
| Docket Number | No. 44427,44427 |
| Citation | 197 Kan. 712,421 P.2d 40 |
| Parties | STATE of Kansas, Appellee, v. Herbert C. HACKER, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. In a criminal action where separate and distinct felonies are charged in separate counts of one and the same information, and all of the offenses charged are of the same general character, requiring the same mode of trial, the same kind of evidence, and the same kind of punishment, the defendant may be tried upon all of the several counts of the information at one and the same time, and in one trial.
2. Whether a defendant in a criminal action who is charged with several separate and distinct felonies, as related in the foregoing syllabus, may be tried upon all of the several counts of the information at one and the same time, and in one trial, rests in the sound judicial discretion of the trial court.
3. Under an information which charges the crime of robbery in the first degree, which includes the crime of grand larceny, it is not error for the trial court to omit instructing the jury as to such lesser offense included in the charge, when the evidence tends to establish the highest degree of the crime charged and does not tend to establish guilt of the lesser offense included therein.
4. One of the essential elements of robbery in the first degree, where there is no violence to the victim, requires putting the victim in fear of some immediate injury to his person, but there is no exact standard by which to determine when an unlawful taking has been accompanied by putting the victim in fear. It is only necessary to show that the circumstances were such as to cause a reasonable man to apprehend danger, and that he could be reasonably expected to give up his property in order to protect himself. A causal relationship, however, must be established between acts of the defendant and the surrender of the property by the victim.
5. In a criminal action, where the defendant is charged with five counts of robbery in the first degree in a single information, the record of conviction is examined and held to disclose no ground for reversal.
Richard I. Stephenson, Wichita, argued the cause and was on the brief, for appellant.
Tyler C. Lockett, Deputy County Atty., argued the cause, and Robert C. Londerholm, Atty. Gen., and Keith Sanborn, County Atty., were with him on the brief, for appellee.
This is an appeal in a criminal action in which the defendant was charged with five counts of robbery in the first degree of five liquor stores located in Wichita, Kansas, contrary to the provisions of G.S.1949 (now K.S.A.) 21-527. All counts were contained in one information. At the trial the court sustained the defendant's motion to discharge him on count 4. The jury acquitted the defendant on count 5 and found him guilty of counts 1, 2 and 3. Appeal has been duly perfected from the conviction on the first three counts.
The questions raised by the appellant all involve trial errors.
The evidence disclosed that the robberies all occurred within a period of ten weeks, from September 28, 1964, to December 5, 1964. Each of the robberies was from a liquor store between the hours of 9:45 p. m. to 10:30 p. m.; the robber operated alone and was described as approximately 50 to 55 years of age and of the same physical stature. Each of the victims was treated in the same manner by the assailant as his plan was carried out.
The appellant first contends the trial court erred in permitting him to be tried upon a single information containing five counts of robbery in the first degree. He contends that the trial court should have granted his motion for separate trials on each count.
It is argued by the appellant that each offense took place on a different date; that each offense was committed against a different individual; and that the proof of each offense required different witnesses and was required to stand upon its own particular facts.
The appellant further argues in like manner the defenses to each count were different.
The appellant contends the mere fact that the offenses charged were of the same general nature is not sufficient reason to warrant consolidating each in the same information and in one trial. (Citing, State v. Thompson, 139 Kan. 59, 29 P.2d 1101.) It is argued the inevitable result was to confound and confuse five different cases in one trial, thereby distracting the jury's attention from the merits of each.
The point in question has been before this court on numerous occasions and is controlled by the rule recently stated in State v. Brown, 181 Kan. 375, 312 P.2d 832, affirmed by the decision in State v. Browning, 182 Kan. 244, 320 P.2d 844. In Brown it was held where separate and distinct felonies are charged in separate counts of one and the same information, and all of the offenses charged are of the same general character, requiring the same mode of trial, the same kind of evidence, and the same kind of punishment, the defendant may be tried upon all of the several counts of the information at one and the same time, and in one trial. The court further held whether a defendant who is charged with several separate and distinct felonies, as above related, may be tried upon all of the several counts of the information at one and the same time, and in one trial, rests in the sound judicial discretion of the trial court.
In the Brown opinion the history of joinder of offenses in Kansas criminal jurisprudence is reviewed on pages 380 to 383, 312 P.2d 832 where the reasons for the rule are stated.
We hold the trial court did not abuse the exercise of its power of discretion in failing to grant the appellant's motion for separate trials on each count.
The appellant's second specification is that the trial court erred in failing to instruct the jury as to lesser offenses.
In the instant case the trial court instructed the jury solely as to the crime of robbery in the first degree, and the jury found the appellant guilty of robbery in the first degree on the first three counts as set forth in the information. No instructions were given as to lesser included offenses.
The appellant argues that robbery in the first degree under Kansas decisions includes grand larceny if the amount taken from the person exceeds $50. In each of the five counts of the information in the instant case the specific amount alleged to have been taken by the robber exceeded $50. (See, K.S.A. 21-533; State v. Pickering, 57 Kan. 326, 46 P. 314; and State v. Dunn, 66 Kan. 483, 71 P. 811.)
The appellant argues that on each count the jury could have found the alleged victim was not put in fear of immediate injury to his person, by reason of which the trial court should have instructed as to the lesser included offense of grand larceny.
The crime of robbery is discussed in 2 Wharton's Criminal Law and Procedure, § 547, pp. 246, 247, as follows:
...
To continue reading
Request your trial
-
State v. Cantrell
...is clear and the jury could have concluded from her actions that her resistance was also overcome by fear. See State v. Hacker, 197 Kan. 712, 421 P.2d 40 (1966), cert. denied, 386 U.S. 967, 87 S.Ct. 1050, 18 L.Ed.2d 119 (1967). The jury had the opportunity to view the witnesses and to hear ......
-
State v. Jones, 44964
...Odle, 121 Kan. 284, 264 P. 1003; State v. Neff, 169 Kan. 116, 218 P.2d 248; State v. Brown, 181 Kan. 375, 312 P.2d 832, and State v. Hacker, 197 Kan. 712, 421 P.2d 40, cert. den. 386 U.S. 967, 87 S.Ct. 1050, 18 L.Ed.2d The defendant argues that the pistol he was charged with possessing on J......
-
Grube v. Union Pacific R. Co., 69,233
...damage cannot recover because he or she did not express fear at the time of danger. That is contrary to our decision in State v. Hacker, 197 Kan. 712, 421 P.2d 40 (1966), cert. denied, 386 U.S. 967, 87 S.Ct. 1050, 18 L.Ed.2d 119 In Hacker, a victim of a robbery testified that he was not afr......
-
State v. Childs
...however, must be established between the acts of the accused and the surrender of the property by the victim. (Following State v. Hacker, 197 Kan. 712, 421 P.2d 40.) 2. The jury, as the exclusive judge of all material questions of fact, is also entitled to draw reasonable inferences from th......