State v. James
| Decision Date | 25 January 1975 |
| Docket Number | No. 47602,47602 |
| Citation | 216 Kan. 235,531 P.2d 70 |
| Parties | STATE of Kansas, Appellee, v. Curtis JAMES, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. In general, a single wrongful act will not furnish the basis for more than one criminal prosecution.
2. A defendant charged with the commission of an offense may be convicted either of the crime charged or of a lesser included crime, but not of both.
3. Where offenses are committed separately and severally at different times and at different places they cannot be said, in general, to arise out of a single wrongful act, nor can one offense be said to be included within the other so as to require the giving of a lesser included offense instruction.
4. The trial court's duty to instruct on a lesser included offense arises only where clearly required by the evidence and where the jury might probably have convicted the accused of a lesser crime had it been instructed with respect thereto.
5. The trial court occupies a favored position in evaluating the testimony of a witness, in assessing its worth, and in determining the weight to which it is entitled.
6. Although the court, as the trier of facts, may not arbitrarily or capriciously refuse to consider the testimony of a witness, it is not obligated to believe or to accept as true the testimony of any witness which it honestly believes is unreliable.
7. The decision of the trial court as to a juror's qualification will not be disturbed on appeal unless his disqualification appears as a matter of law or there has been an abuse of discretion.
Richard D. Coffelt of Flood, Martin, Coffelt & Flood, Hays, argued the cause, and Steven P. Flood, Hays, was with him on the brief for appellant.
Michael H. Haas, County Atty., argued the cause, and Vern Miller, Atty. Gen., was with him on the brief for appellee.
The defendant, Curtis James, was found guilty of three criminal charges: (1) assault (K.S.A. 21-3408), (2) battery (K.S.A. 21-3412) and (3) rape, which is defined in K.S.A. 21-3502 (1)(a) as 'the act of sexual intercourse committed by a man with a woman not his wife, and without her consent when . . . (her) resistance is overcome by force or fear.'
The train of events leading to the criminal charges began on what we reasonably may assume was a quiet Sunday evening in Hoxie. Sharon Mong and her twin sisters, Marlette and Marlene, were returning to their father's home after a weeked visit with their mother at Goodland. The date was September 23, 1973, the hour approximately 10 p. m. Sharon was sixteen at the time; the twins a year younger. As the trio drove down the main stem of Hoxie with Sharon at the wheel, they passed two vehicles which were stopped in the middle of the street permitting their occupants to visit. One car was Ranchero driven by the defendant, Curtis James. Rick Farber drove the second car, which was blue in color, and Robert Meier and Don Moss were passengers in one or the other of the two vehicles.
As the girls' car passed the vehicles, James drove his Ranchero in front of it while Farber pulled his car behind the Mong vehicle, hemming it in. Sharon attempted to pass around the James vehicle ahead of her but James swung the Ranchero back and forth across the street preventing her from passing.
Some distance from town, and apparently beyond the railroad tracks, the four young gallants succeeded in stopping the Mong car on the highway. At this point Marlette was able to crawl out of the car. She ran back to town where she reached the home of a friend and proceeded to spread the alarm. In the meantime, the boys forced Sharon to drive her car into Reuben Rasek's driveway and James drove in behind her, blocking the exist.
A fair summary of what took place in the driveway is that James opened the door of the Mong car, grabbed Sharon by the arms and dragged her, protesting, from the vehicle. Sharon managed to break away, and began running toward Hoxie. James and Meier took after her in the Ranchero, catching up with her near the railroad tracks where they forced her into the truck.
What transpired thereafter, as Sharon relates it, for neither James nor Meier testified, need not be told in detail. It is sufficient to say the two men drove Sharon to the country and into a field where James had intercourse with her in the back of the pickup while Meier held her by the arm. Sharon testified that she was scared, that she screamed and fought, and at one time managed to break free but was recaptured down the road.
A doctor who examined Sharon the same night testified that she had recently had intercourse, that she was upset, that she was crying and that her hair was in disarray. The following morning the doctor examined her wrists and found evidence of bruises encircling them, as though force had been applied to the skin.
Sheriff Kratzer testified that he and Chief of Police Johnson met Mr. Mong at the telephone booth near the E & G Motel about 10:30 or 10:45 p. m.; that James and Meier drove by; that the chief pursued and brought them back; that he, the sheriff, attempted to get James into his car but James resisted, and kept talking and yelling; that finally he had to use his mace to quiet James, at which point James took off, with the sheriff in hot pursuit; that James was brought to bay about a block away and firmly escorted to the sheriff's office.
On January 29, 1974, Mr. James was brought to trial for rape. That trial ended with a hung jury, and a mistrial was declared. On February 15, 1974, the state filed a separate information charging James with two additional offenses, assault and battery. An affidavit by Sharon accompanied the information, setting out the incident which occurred in the Rasek driveway. The court ordered these charges consolidated for trial with the rape charge, and all three charges were tried together in March, 1974. James was convicted on all counts.
Two of the defendant's points relate to the assault and battery charges. James argues (1) the trial court should have instructed that assault and battery are lesser included offenses of forcible rape and that the jury could convict on either the lesser offense or the greater offense, but not both, and (2) conviction on charges of assault and of battery operates as an acquittal of forcible rape. In our judgment neither of these contentions is valid.
We recognize the rationale of Jarrell v. State, 212 Kan. 171, 510 P.2d 127, which defendant cites, but believe it may readily be distinguished. Jarrell was charged in three counts with (1) forcible rape, (2) assault with felonious intent and (3) taking a woman for defilement (under a statute now repealed). The facts alleged in each count were the same. Under those circumstances we said it was clear that Jarrell had been convicted of three crimes arising out of a single incident and that convictions under the last two counts were 'barred by former jeopardy.' (p. 175, 516 P.2d 127.) In the Jarrell opinion we cited State v. Pierce et al., 205 Kan. 433, 469 P.2d 308, where it was held:
'Generally, a single wrongful act should not furnish the foundation of more than one criminal prosecution.' (Syl. 2.)
'The test to be applied in determining the question of identity of offenses laid in two or more counts of an information is whether each requires proof of a fact which is not required by the others.' (Syl. 3.)
Jarrell is not a controlling precedent, however, for here there was more than a single wrongful act; there were two. The assault and battery charges are plainly based on what occurred in the Rasek driveway, not on what subsequently took place in the pickup parked in the pasture. Although the violence in the Rasek driveway may have been one of a series of incidents occurring that night, it was nonetheless separate and distinct, both as to time and place, from the rape that later materialized.
But defendant argues the assault and battery were committed to overcome Sharon's resistance in the course of events eventually leading to the rape and thus were elements of the sexual assault itself. We believe the argument faulty. The attack on Sharon was fully completed at the time it occurred, and might well have been made the basis for assault and battery charges had nothing further happened that night.
Did the trial court err in failing to instruct that simple assault and simple battery were lesser included offenses of rape? We think not. In State v. Kelley, 125 Kan. 805, 265 P. 1109, the defendant was convicted of attempt to rape. We held:
'Simple assault is not a lesser degree of the offense of rape, or of attempt to rape, as defined by R.S. 21-101, 21-424.' (Syl. 3.)
In the course of its opinion, this court stated, on page 807, 265 P. on p. 1110:
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