State v. Loudermilk, 48315
| Decision Date | 11 December 1976 |
| Docket Number | No. 48315,48315 |
| Citation | 221 Kan. 157,557 P.2d 1229 |
| Parties | STATE of Kansas, Appellee, v. Ermon LOUDERMILK a/k/a Herman Loudermilk, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. Prior conviction of possession of narcotics is not an element of the class B felony defined by K.S.A.1975 Supp. 65-4127a, but serves only to establish the class of the felony and thus to enhance the punishment. Proof of prior conviction, unless otherwise admissible, should be offered only after conviction and prior to sentencing.
2. In an appeal from a second conviction of possession of heroin in violation of K.S.A.1975 Supp. 65-4127a, the record is examined and it is held that the trial court did not err in denying a continuance, in admitting certain evidence, or in its conduct of the trial; nor was it error for the information to charge that the defendant had previously been convicted of possession of heroin.
John E. Pyles, Wichita, argued the cause and was on the brief for appellant.
Christopher A. Randall, Asst. Dist. Atty., argued the cause, and Curt T. Schneider, Atty. Gen., Keith Sanborn, Dist. Atty., and Stephen E. Robinson, Asst. Dist. Atty. were on the brief for appellee.
Ermon Loudermilk appeals from his second conviction of possession of heroin, a class B felony under K.S.A.1975 Supp. 65-4127a, and from a sentence of imprisonment for not less than five years nor more than life, imposed pursuant to K.S.A. 21-4501(b). He raises numerous points of law, but does not question the sufficiency of the evidence to sustain the verdict. A statement of the facts is not necessary.
Defendant's first challenge to the proceedings below is his contention that the prior conviction should not have been charged in the information and evidence of it should not have been admitted before the jury; instead, he claims that he should have been charged with simple possession of heroin and upon his conviction, evidence of the prior conviction could then have been considered by the judge in determining the classification of the offense and the punishment to be imposed.
K.S.A.1975 Supp. 65-4127a provides in substance that:
Heroin, an opium derivative, is by definition a narcotic drug.
The information charges that in Sedgwick County, Kansas, and on or about August 18, 1974, Ermon Loudermilk 'did then and there unlawfully, wilfully possess heroin . . . after having previously been convicted of possession of heroin on May 3, 1971 in Division No. 6 of the Sedgwick County, Kansas, District Court . . .'
The defendant did not challenge the information before trial. K.S.A. 22-3208(3) provides that:
'. . . (O)bjections based on defects in the . . . information . . . other than that it fails to show jurisdiction in the court or to charge a crime may be raised only by motion before trial. . . .' (Emphasis supplied.)
Defendant does not now raise any question as to jurisdiction nor does he contend that the information fails to charge a crime. He contends, instead, that the reference in the information to his prior conviction is surplusage and wholly unnecessary. We disagree.
The purpose of an information is 'not only to give the court jurisdiction, but also to inform accused of what offense he is charged, so as to enable him to prepare his defense.' 42 C.J.S. Indictments and Informations, § 11, p. 851. It is the jurisdictional instrument upon which the accused stands trial. Conviction of an offense not charged in the information is a denial of due process under the Fourteenth Amendment. State v. Minor, 197 Kan. 296, 416 P.2d 724.
Section 10 of the Bill of Rights of the Kansas Constitution provides that:
'In all prosecutions, the accused shall be allowed . . . to demand the nature and cause of the accusation against him . . .'
Almost 100 years ago Chief Justice Horton of this court, in discussing that section, said that a defendant cannot be charged in the information with one offense, and be convicted of another and different offense. State v. Behee, 17 Kan. 402. The language of § 10 is similar to language contained in the Sixth Amendment to the Constitution of the United States, applicable to prosecutions under federal law, which gives the accused the right 'to be informed of the nature and cause of the accusation.' State v. Hill, 189 Kan. 403, 369 P.2d 365, 91 A.L.R.2d 750.
The federal courts have held that under the language of the Sixth Amendment and under the due process clause of the Fourteenth Amendment, an indictment or information must be drawn with sufficient clearness and completeness to show a violation of law, to enable the accused to know the nature and cause of the charge against him and to enable him to make out his defense. Carter v. United States, 173 F.2d 684 (10th Cir. 1949) cert. den. 337 U.S. 946, 69 S.Ct. 1503, 93 L.Ed. 1749; and see Wilkinson v. Hayner, 327 F.Supp. 967 (W.D.Mo.1971).
Turning to the case at hand, we think the defendant was entitled to know, and to be specifically advised by the information of the specific offense with which he was charged and the seriousness thereof, his defense. Carter v. United States, 173 he stood accused. The information before us recited the prior conviction in detail, and noted that the offense charged was a class B felony. This gave the defendant proper notice of the charge.
We recognize a distinction betwen crimes in which a prior conviction of a felony is a necessary element, and crimes in which a prior conviction of the same crime is considered in establishing the class of felony or the penalty to be imposed. The present habitual criminal act, K.S.A. 21-4504, is a legislative expression of that distinction. Subsection (5) of that statute provides as follows:
'(5) The provisions of this section shall not be applicable to: (a) Any person convicted of a crime for which the punishment is confinement in the custody of the director of penal institutions and where a prior conviction of a felony is a necessary element of such crime; or (b) any person convicted of a felony for which the punishment is confinement in the custody of the director of penal institutions and where a prior conviction of such felony is considered in establishing the class of felony for which such person may be sentenced.' (Emphasis supplied.)
The criminal code contains numerous examples of these two types of crimes. Crimes in which the prior conviction of felony is a necessary element include habitually giving worthless checks (K.S.A. 21-3708), aggravated weapons violation (K.S.A. 21-4202), unlawful possession of a firearm (K.S.A. 21-4204), and habitually promoting prostitution (K.S.A. 21-3514). This court has on numerous occasions declared that in a prosecution under K.S.A. 21-4204 evidence of the prior felony is a necessary element of the crime. (State v. Farris, 218 Kan. 136, 139, 542 P.2d 725; State v. Knowles, 209 Kan. 676, 498 P.2d 40.) We have also held that the same is true with regard to prosecutions under K.S.A. 21-3708. (State v. Walden, 208 Kan. 163, 490 P.2d 370.) It is important to note that in each case where a prior conviction of felony is a necessary element of the crime, the fact of prior conviction is contained in the statutory definition of the crime rather than in the penalty section of the statute.
On the other hand, the legislature has created the following crimes under which a previous conviction is not an element of the substantive crime but serves only to enhance punishment: Driving while license canceled (K.S.A. 8-262); reckless driving (K.S.A. 8-1566); driving while under the influence of intoxicating liquor or drugs (K.S.A. 8-1567); theft of telecommunications services (K.S.A. 21-3745); promoting obscenity (K.S.A. 21-4301 and 21-4301a); possession of narcotics (K.S.A.1975 Supp. 65-4127a); and possession of marijuana (K.S.A.1975 Supp. 65-4127b). In each of these statutes the fact of prior conviction is not contained in the statutory definition of the crime but is contained only in the penalty provisions of the statute. It is in this class that the heroin possession statute properly falls.
The distinction between these two types of statutory crimes was made clear by this court in State v. Jones, 214 Kan. 568, 521 P.2d 278. The statute there involved was K.S.A.1973 Supp. 8-262(a) which reads in part:
'Any person who drives a motor vehicle on any public highway of this state at a time when his privilege so to do is canceled, suspended or revoked shall be guilty of a class B misdemeanor on the first conviction, a class A misdemeanor on the second conviction and for third and subsequent convictions shall be guilty of a class E felony. . . .'
Chief Justice Fatzer, speaking for the court, said:
A comparison of the statute involved in Jones with that before us in this case leads to the conclusion that ...
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