State v. Howell

• Decision Date: 27 October 1979
• Docket Number: No. 50723,50723
• Citation: 226 Kan. 511,601 P.2d 1141
• Parties: STATE of Kansas, Appellee, v. Gary E. HOWELL and Gary J. Taylor, Appellants.
• Court: Kansas Supreme Court

Page 1141

601 P.2d 1141

226 Kan. 511

STATE of Kansas, Appellee, v. Gary E. HOWELL and Gary J. Taylor, Appellants.

No. 50723.

Supreme Court of Kansas.

Oct. 27, 1979.

Syllabus by the Court

1. In a felony action the indictment or information is the jurisdictional instrument upon which the accused stands trial.

2. If the facts alleged in an information do not constitute an offense within the terms and meaning of the statute upon which it is based, the information is fatally defective. The evidence introduced at trial to show commission of the crime sought to have been charged and the jury instruction thereon have no bearing on this question.

3. The failure of the information charging defendants with taking property from the person of another while armed with a dangerous weapon to charge that the taking was by force or by threat of bodily harm, was fatally defective to the State's prosecution of the information.

4. The firing at the officer by the defendants was a legally sufficient "threat to do bodily harm" to satisfy the requirements of aggravated assault on a law enforcement officer (K.S.A. 21-3411).

Jack W. Shultz, Dodge City, argued the cause and was on brief for appellants.

Daniel L. Love, County Atty., argued the cause, and Robert T. Stephan, Atty. Gen., and Judd Dent, former County Atty., were on brief for appellee.

McFARLAND, Justice:

This is a direct appeal by defendants Gary E. Howell and Gary J. Taylor from their convictions of aggravated assault on a law enforcement officer (K.S.A. 21-3411) and aggravated robbery (K.S.A. 21-3427). Each defendant was also convicted of unlawful restraint (K.S.A. 21-3424), but said convictions are not before us on appeal.

The case involves a complex factual situation. By virtue of the narrow issues raised on appeal, only such facts as are necessary for their determination will be included herein.

The first point on appeal is whether the trial court erred in overruling the defendants' motion to quash the aggravated robbery count in the information. This count (Count Two) reads as follows:

"That on or about the 20th day of June, 1978, the said Gary E. Howell & Gary J. Taylor, within the above and within named County and State, then and there being, did then and there contrary to the statutes of the State of Kansas unlawfully feloniously and willfully take property, to-wit: a 1975 Dodge Van, red and black in color, license tag # FO8759, from the person of Gene Swarz, while the said Gary E. Howell & Gary J. Taylor were armed with a dangerous weapon, to-wit: a pistol in violation of K.S.A. 21-3427. Aggravated Robbery is a Class B felony pursuant to K.S.A. 21-4501(b)."

After the State rested its case defendants moved to quash Count Two on the ground that it alleged no crime, as the element of aggravated robbery, requiring the taking to be by force or threat of bodily harm, was absent.

The State did not request amendment of the count pursuant to K.S.A.1978 Supp. 22-3201(4) and took the position that the count was legally sufficient. The trial court overruled the motion, holding the count to be legally sufficient in that it alleged the taking of property occurred while the defendants were armed with a dangerous weapon.

The statutes or relevant parts thereof are as follows:

K.S.A. 21-3426. Robbery.

"Robbery is the taking of property from the person or presence of another by threat of bodily harm to his person or the person of another or by force."

K.S.A. 21-3427. Aggravated robbery.

"Aggravated robbery is a robbery committed by a person who is armed with a dangerous weapon or who inflicts bodily harm upon any person in the course of such robbery."

K.S.A.1978 Supp. 22-3201. The charge.

"(2) The complaint, information or indictment shall be a plain and concise written statement of the essential facts constituting the crime charged, which complaint, information or indictment, drawn in the language of the statute, shall be deemed sufficient."

Defendants contend Count Two is jurisdictionally defective, as an element of the crime is wholly absent. The State contends the information was legally sufficient because:

1. K.S.A. 21-3427, by requiring the use of either a weapon or great bodily harm, relieves the State of the requirement of specifically setting forth in the information that any threats were used or force applied in the taking of property. The allegation that defendants had a deadly weapon was sufficient to convey the meaning that the taking of the property from the person of another was accomplished by force or threat of bodily harm.

2. Count Two follows the format prescribed by the Kansas County and District Attorneys Association, Prosecutor's Desk Manual (rev. 1976).

In the case before us the jury was properly instructed on the elements of aggravated robbery, including the element missing from the information.

A similar question was raised in United States v. Denmon, 483 F.2d 1093 (8th Cir. 1973). The Eighth Circuit reversed a conviction of selling stolen property for failure to allege in the indictment that the defendant acted knowingly, unlawfully and willfully, and rejected the government's argument that proper instructions remedied the defect. The court held, 483 F.2d at 1095:

"However, the failure of the indictment to charge that the defendant acted knowingly, unlawfully, and wilfully is fatally defective to the Government's prosecution of this indictment. Morissette v. United States, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288 (1952), holds that a criminal intent is an essential element of an offense under § 641. Despite this fact, the Government contends that the trial court's proper instruction requiring a finding of criminal intent has remedied the defect in the indictment. We think a defect of the type present in this case is more than a matter of mere form or technical pleading and constitutes a substantive defect in the indictment. It is elementary in American jurisprudence that an indictment must set forth the essential elements of the offense charged, and if it does not, a conviction based thereon is fatally defective."

Denmon is in accord with Kansas case law.

In a felony action, the indictment or information is the jurisdictional instrument upon which the accused stands trial. State v. Minor,197 Kan. 296, Syl. P 5, 416 P.2d 724 (1966).

A conviction based upon an information which does not sufficiently charge the offense for which the person is convicted is void. State v. Daniels, 223 Kan. 266, Syl. P 4, 573 P.2d 607 (1977); State v. Minor, 197 Kan. 296, 416 P.2d 724.

If the facts alleged in a complaint or information do not constitute an offense in the terms and meaning of the statute upon which it is based, a complaint or information is fatally defective. State v. Doyen, 224 Kan. 482, 488, 580 P.2d 1351 (1978); State v. Bishop, 215 Kan. 481, Syl. P 1, 524 P.2d 712 (1974).

A governing rule is that if the allegations of an information may be true and the defendant still is innocent of the offense defined by the statute the information is jurisdictionally defective. State v. Jamieson,206 Kan. 491, Syl. P 2, 480 P.2d 87 (1971).

If the information is fatally defective the district court lacked jurisdiction to try defendants for aggravated robbery and their convictions for same are void. The evidence introduced at trial to show commission of the crime sought...