State v. Ingram
| Decision Date | 03 March 1973 |
| Docket Number | No. 46854,46854 |
| Citation | 211 Kan. 587,506 P.2d 1148 |
| Parties | STATE of Kansas, Appellant, v. Daniel L. INGRAM, Appellee. |
| Court | Kansas Supreme Court |
1. A trial court has the duty to instruct the jury in all matters of law necessary for it to reach a verdict.
2. A person is criminally responsible for a crime committed by another if he intentionally aids, abets, advises, hires, counsels or procures the other to commit the crime, and one so liable may be charged with and convicted of the crime regardless of the outcome of any prosecution of the person alleged to have directly committed the act constituting the crime (K.S.A.1972 Supp. 21-3205 (1)(3)).
3. Taking indecent liberties with a child is an offense succeptible to participation by an aider and abettor in its commission.
4. Each party to an action is entitled to have the jury instructed with reference to his theory of the case where such theory is supported by evidence and the instruction is properly framed.
5. The propriety of instructions to a jury is to be gauged by their consideration as a whole, each in conjunction with all other instructions in the case.
6. Defendant was acquitted by a jury of the offense of taking indecent liberties with a child. The state appealed on a question reverved. The record is examined and it is held: In the light of the other instructions given to the jury, the trial court did not err in refusing to give an instruction requested by the state on aiding and abetting.
R. K. Hollingsworth, Chief Deputy County Atty., argued the cause, and Vern Miller, Atty. Gen., Keith Sanborn, County Atty., and Ted Peters, Deputy County Atty., were on the brief for appellant.
Richard H. Rumsey, of Rumsey & Cox, Wichita, argued the cause and was on the brief for appellee.
HARMAN, Commissioner.
This is an appeal by the state on a question reserved in a prosecution for the offense of taking indecent liberties with a child.
The question raised is whether the trial court erred in refusing to submit to the jury an instruction on aiding and abetting.
In a single-count information which is the basis of this prosecution it was charged that one Dennis M. Glover and Daniel L. Ingram, the defendant-appellee herein, fondled and touched the person of a fourteen year old girl who was not the spouse of either, with intent to arouse and satisfy the sexual desires of Glover and appelle.
Evidence adduced at trial in support of this charge showed that on the afternoon in question the victim and another girl were driven in a station wagon to a rural Sedgwick county area. The girls were accompanied by at least four (and possibly more) young men, including Glover and appelle. There conversation occurred in which the young men told the victim she would have to lose her virginity sooner or later. When the victim was not persuaded that this propitious moment had arrived and she should respond voluntarily to the occasion, the youths grabbed her, forcibly removed her shorts and underclothing and put her on her back in the rear of the station wagon. Appellee held her legs and left arm, the latter with force sufficient to bruise it. Others of the youths were lending assistance in the venture. The victim was screaming. Glover removed his trousers and attempted to lie on top of the girl. He touched her vagina. Another of the boys touched her breasts. Appellee did not touch her except on the arm and legs. The group apparently desited in further advances immediately after Glover attempted to lie on her although appellee wanted to go on and had to be 'convinced' by one of the other boys to stop.
At the conclusion of all the evidence the prosecution requested, but the trial court refused to give, the following instruction:
'You are instructed that under the laws of this state, anyone who counsels, aids or assists another or others in the commission of any crime, either by conspiring, counseling, advising or assisting in any manner in the preparation or completion thereof is equally guilty with the one actually committing the crime without regard to the extent of their participation and is guilty of such crime as though he had himself, without assistance, committed the crime.
'The mere presence of a person who in no way counsels, aids or assists others in the commission of a crime by conspiring, counseling, advising or assisting in any manner in the preparation or completion thereof does not make such person guilty of the crime.'
The jury found appellee not guilty and this appeal ensued. The sole issue is the propriety of the court's refusal to give requested instruction No. 6.
At first blush it might appear, inasmuch as no other instruction on aiding and abetting was given, that the refusal was improper. Certainly a trial court has the duty to instruct the jury in all matters of law necessary for it to reach a verdict (State v. Coltharp, 199 Kan. 598, 433 P.2d 418.) And K.S.A.1972 Supp. 21-3205 in part provides:
'(3) A person liable under this section may be charged with and convicted of the crime although the person alleged to have directly committed the act constituting the crime lacked criminal capacity or has not been convicted or has been acquitted or has been convicted of some other degree of the crime or of some other crime based on the same act.'
It cannot be doubted that taking indecent liberties with a child is an offense susceptible to participation by an aider and abettor in its commission. In State v. Jackson, 201 Kan. 795, 443 P.2d 279, cert. denied 394 U.S. 908, 89 S.Ct. 1019, 22 L.Ed.2d 219, the appellant was convicted of robbery and forcible rape. In holding the evidence sufficient to support the convictions, this court stated:
(pp. 799-800, 443 P.2d p. 283.)
At this point, then, it would appear the state was entitled to the requested instruction inasmuch as each party to an action is entitled to have the jury instructed with reference to his theory of the case where such theory is supported by evidence and the instruction is properly framed. There was evidence appellee touched the victim in that he held her...
To continue reading
Request your trial
-
State v. Jones
...State v. Jackson, 218 Kan. 491, 543 P.2d 901 [1975]; State v. Williams & Reynolds, 217 Kan. 400, 536 P.2d 1395 [1975]; State v. Ingram, 211 Kan. 587, 506 P.2d 1148 [1973]; State v. Campbell, 210 Kan. 265, 500 P.2d 21 [1972]; State v. Ogden, 210 Kan. 510, 502 P.2d 654 [1972]; State v. Edward......
-
State v. Smolin
...(K.S.A. 21-3205; State v. Jackson, 218 Kan. 491, 543 P.2d 901; State v. Williams & Reynolds, 217 Kan. 400, 536 P.2d 1395; State v. Ingram, 211 Kan. 587, 506 P.2d 1148; State v. Campbell, 210 Kan. 265, 500 P.2d 21; State v. Ogden, 210 Kan. 510, 502 P.2d 654; State v. Edwards, 209 Kan. 681, 4......
-
State v. Childers
...instruction might be subject to criticism as being imprecise. However, the instruction is not to be read in isolation. In State v. Ingram, 211 Kan. 587, 506 P.2d 1148, we held: 'The propriety of instructions to a jury is to be gauged by their consideration as a whole, each in conjunction wi......
-
State v. Williams
...this state in regard to the liability of a person for the crimes of another. State v. Schriner, 215 Kan. 86, 523 P.2d 703; State v. Ingram, 211 Kan. 587, 506 P.2d 1148. The sentence complained of as being confusing to the jury was drawn verbatim from this court's opinion in State v. Turner,......